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Associated Aviation Underwriters v. Wood9/29/2004
985) (applying California law, court employs exposure theory); Guar. Nat'l Ins. Co. v. Azrock Indus., 211 F.3d 239 (5th Cir. 2000) (applying Texas law, court employs exposure theory).
Under a continuous-trigger theory, the initial exposure to a toxic agent, "exposure-in-residence," and disease manifestation all constitute "bodily injuries" under an insurance policy. Keene Corp. v. Ins. Co., 667 F.2d 1034 (D.C. Cir. 1981). Exposure-inresidence is the period between the initial exposure and the time when the injury manifests itself. Guar. Nat'l, 211 F.3d at 245. In other words, coverage is triggered if an individual shows he or she was exposed to a toxic substance, was diagnosed or developed identifiable symptoms, or has yet to develop identifiable symptoms but was in fact exposed at an earlier time. Any one of those events is considered part of the single injurious process caused by toxic exposure, and all policies in effect when any one of those events occurs apply and provide coverage. According to the California Supreme Court, "most courts" that have analyzed the trigger-of-coverage issue have adopted a continuous trigger theory. Montrose Chem. Corp. v. Admiral Ins. Co., 913 P.2d 878, 896 (Cal. 1995); see also Robert D. Fram, End Game: Trigger of Coverage in the Third Decade of CGL Latent Injury Litigation, in 10th Annual Insurance, Excess, and Reinsurance Coverage Disputes, at 15 (PLI Litig. & Admin. Practice Course, Handbook Series No. 454, 1993) (stating that the "so-called continuous trigger theory has gained wide acceptance by the courts").
In determining which theory should apply here, we start with the policy language, focusing on whether Intervenors' cellular injuries constitute "bodily injury " under AAU's policy so as to trigger coverage. Arizona courts attempt to "'honor the drafting intent and the plain meaning of the policy language.'" Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184, 186, 939 P.2d 1337, 1339 (1997), quoting Kirk A. Pasich, Commentary, The "Expected or Intended" Exclusion and California Insurance Code Section 533, 10 No. 21 Mealey's Litig. Rep.: Insurance 20, 31 (1996). That approach requires a court interpreting an insurance contract to first "construe provisions of an insurance policy according to their plain and ordinary meaning," if possible. Liristis v. Am. Family Mut. Ins. Co., 204 Ariz. 140, 13, 61 P.3d 22, 25 (App. 2002).
As noted earlier, the court in Transamerica found the term, "bodily injury ," unambiguous "on its face" and defined the term as including "physical injuries, impairment of physical condition, sickness, disease, or substantial pain." 173 Ariz. at 115, 840 P.2d at 291. Assuming that definition applies here, interpretation of policy language cannot be divorced from the particular facts of the case. See Mayor of Baltimore v. Utica Mut. Ins. Co., 802 A.2d 1070, 1095 (Md. Ct. Spec. App. 2002) (" n the final analysis[, a] court must apply policy language in particular factual contexts."); Montrose, 913 P.2d at 888 (proper resolution of trigger of coverage issue depends on nature of underlying facts).
Neither the context of this case nor the wording of AAU's policy supports application of the manifestation theory here. AAU's policy does not clearly provide that only fully manifested disease will trigger coverage. Rather, apparently unlike the UIM provision at issue in Transamerica, AAU's policy states, in the disjunctive, that it covers liability for "bodily injury," "sickness," or "disease." Those distinctions are significant because "bodily injury" presumably means something other than "disease." See Gfeller v. Scottsdale Vista N. Townhomes Ass'n, 193 Ariz. 52, 13, 969 P.2d 658, 660 (App. 1998) (we are requir
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