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Associated Aviation Underwriters v. Wood9/29/2004
r policy might be in effect when appellants ultimately develop a manifested, "compensable bodily injury," id. at 115, 840 P.2d at 291, would provide coverage for the future claim. Similarly, inasmuch as Intervenors' injuries are deemed established under Morris, AAU's policy covers Intervenors' claims because it was in effect at the time of initial exposure and resulting "cellular injury." In sum, because neither Transamerica nor the asbestos cases involved a Morris agreement or any timing-of-injury issue such as that posed here, we find those cases inapposite.
Because the context and specific issue involved in this case differ from Transamerica, we are faced with the following issue of first impression in Arizona: does exposure to a toxic substance, cellular damage resulting therefrom, and the biological processes initiated by such damage constitute a "bodily injury , sickness or disease" such that coverage is triggered under a CGL insurance policy? Resolution of this issue poses, to say the least, difficult legal problems. As the New Jersey supreme court stated:
Our concepts of legal causation were developed in an age of Newtonian physics, not of molecular biology. Were it possible to know when a toxic substance clicks on a switch that alters irrevocably the composition of the body and before which no [bodily injury has taken place,] we might be more confident that [accident]-caus damages had taken place during a particular policy period. The limitations of science in that respect only compound the limitations of law. [In other words, m]ass-exposure toxic tort cases have simply exceeded the capacity of conventional models of judicial response. Owens-Illinois, 650 A.2d at 985 (citation omitted). More bluntly, one federal court faced with this issue has called it an "impossible problem" with "no truly satisfactory solution," because each possible solution "has its flaws and anomalies." Ins. Co. of N. Am. v. Forty- Eight Insulations, Inc., 633 F.2d 1212, 1226 (6th Cir. 1980).
In the context of toxic-exposure cases, courts have developed three primary theories for determining what events will trigger insurance coverage: the manifestation theory, the exposure theory, and the continuous (or triple) trigger theory. The manifestation theory is distinctly a minority view, having been adopted by only one court in the personal injury context. See Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12 (1st Cir. 1982). Under that theory, "bodily injury" occurs and coverage is therefore triggered only when a disease becomes clinically identifiable or diagnosable. In essence, progressive diseases caused by exposure to toxic agents are treated the same as injuries that occur immediately or very close in time to the causative event. The manifestation theory therefore requires that diseases be fully developed during the policy period before a policy is deemed to provide coverage. Based primarily on Transamerica, AAU contends Arizona is committed to requiring "manifested injury for recovery" in a case such as this. But, as noted above, we do not find Transamerica controlling here.
Under the so-called exposure theory, coverage is triggered when an individual is exposed to a toxic substance during the policy period and some cellular injury results. The manifestation of disease under that theory is not a discrete, triggering event. Rather, the ultimate manifestation of disease is merely a consequence of the initial injury of exposure to a toxic substance that initiates the disease process. See Forty-Eight Insulations, 633 F.2d at 1222-23; accord Porter v. Am. Optical Corp., 641 F.2d 1128 (5th Cir. 1981); see also Hancock Labs., Inc. v. Admiral Ins. Co., 777 F.2d 520 (9th Cir. 1
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