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Associated Aviation Underwriters v. Wood9/29/2004
ed to interpret a contract in a way that all of its terms are given meaning and none is rendered superfluous). And, as "understood by the layman," a "disease" implies "a condition which either has impaired, or presumably will impair, if it continues in its usual course of progress, the normal working of some of the bodily or mental functions." Dickerson v. Hartford Accident & Indem. Co., 56 Ariz. 70, 76, 105 P.2d 517, 520 (1940).
The trial court did not find, nor does the record reflect, that Intervenors had sustained any actual "disease" during AAU's policy period. But a "disease" is only one subset of the broader category of "bodily injury ," which includes any "physical injuries." Transamerica, 173 Ariz. at 115, 840 P.2d at 291. Based on its plain and ordinary meaning, see Liristis, 204 Ariz. 140, 13, 61 P.2d at 25, the term, "bodily injury," in this context is not limited to a fully manifested, diagnosable condition. See Forty-Eight Insulations, 633 F.2d at 1222, quoting Appleman, Insurance Law & Practices ยง 355 (1965) (" or insurance purposes, courts have long defined the term 'bodily injury' to mean 'any localized abnormal condition of the living body.'"). Accordingly, in order to give "effect to all of [the policy] provisions," Nichols, 175 Ariz. at 356, 857 P.2d at 408, and considering the disjunctive language AAU used and the lack of any definition in the policy of the phrase, "bodily injury," we reject the manifestation theory in this case. As noted above, AAU's reliance on Transamerica for a contrary conclusion is misplaced. And, as also noted above, the manifestation theory is incompatible with the court's suggestion in that case that Transamerica's UIM coverage would apply if appellants were to ultimately sustain a bodily injury from their previous exposure to HIV-infected blood. See 85-86, supra.
Much of the same reasoning requires us to also reject the exposure theory. Under that theory, we would be required to interpret "bodily injury " to mean only the exposure to a toxic substance and the cellular damage resulting therefrom and to find such injury to be the sole trigger of coverage. But then we would be, at best, equating "disease" with "bodily injury" or, at worst, excising the term "disease" from the policy. Neither result is supportable. "Every disease is presumably preceded by the onset of sub-clinical changes in the body[, t]o state that... disease occurs when these sub-clinical alterations take place... is to subvert the plain meaning of 'disease' and to read the term entirely out of the policy." Eagle-Picher, 682 F.2d at 19-20 (rejecting exposure theory in context of adopting manifestation theory). As the court in Keene stated:
If exposure... were deemed to constitute discrete injury and thereby trigger coverage,... the subsequent development of a disease would be characterized best as a consequence of the injury. Future stages of development would not constitute new injuries and therefore would not trigger additional coverage. Under that interpretation, [an insured] who bought a comprehensive general liability policy would not bear the risk of liability for diseases that occurred due to exposure during a covered period. It would, however, bear the risk of liability for diseases that manifest themselves during the covered period, but that occur because of exposure at a time when the [insured] held no insurance. As a result, the [insured's] purchase of insurance would not constitute a purchase of certainty with respect to... diseases [caused by toxic exposure]. The insured would remain uncertain as to future liability for injuries whose development began prior to the purchase of insurance. There is no indication that such a de facto exclusion of co
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