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Associated Aviation Underwriters v. Wood9/29/2004
o rule that " reasonably prudent person in the position of the TAA and the City of Tucson at the time of the settlement would have settled on the terms of the Morris Agreement that was actually entered into in this case." (Emphasis added.) Accordingly, unlike the situation in Himes, the trial court did not merely approve of the settlement amount as within the range of a reasonable settlement; rather, after considering all the evidence and the Intervenors' burden of proof, the trial court approved of the precise settlement amount TAA/City and Intervenors had agreed to in the Morris agreement. That ruling is consistent with the mandates of both Morris and Himes.
F. Other Issues
Relying largely on Himes, AAU also contends that, in determining reasonableness, the trial court improperly considered TAA/City's potential defense costs and the potentially catastrophic financial effect a jury verdict in favor of Intervenors might have had on TAA/City. See 205 Ariz. 31, 35, 66 P.3d at 85 (because " inability to pay (or the potentially devastating impact of a large money judgment on a defendant) is not an admissible fact in determining the merits of the [underlying] action," that is "not an appropriate factor to consider in determining reasonableness under a Damron / Morris agreement"). We do not address these issues, however, because AAU failed to object below to the admission of such evidence during the phase II trial. See Crowe v. Hickman's Egg Ranch, Inc., 202 Ariz. 113, 16, 41 P.3d 651, 654 (App. 2002) ("Issues not properly raised below are waived."). For all of the foregoing reasons, we affirm the trial court's judgment on the issue of reasonableness.
CROSS-APPEAL
I. AAU's Occurrence Policy and Intervenor Montejano
Intervenor Yvonne Montejano appeals from the March 2003 judgment entered against her on the basis that she was exposed to TCE only during the period of AAU's occurrence policy, August 1, 1969, through October 1, 1972. The trial court (J. Velasco) previously concluded that " o insured event happened during the period of the occurrence AAU policy." As noted above, see 8, supra, the occurrence policy contained language identical to the accident policy except that instead of insuring against injuries "caused by accident," it covered injuries "caused by an occurrence." The policy defined "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." The trial court did not explain why " he events do not come within the definition of the terms of the 'occurrence' based policies," the only basis cited for the "directed verdict" in AAU's favor relating to those policies.
We see no reason why coverage should exist under AAU's accident policies but not under its occurrence policy. By its own terms, the latter policy defines "occurrence" as encompassing "an accident." And, the occurrence policy specifically refers to this type of case by providing that an occurrence can be the "continuous or repeated exposure to conditions" that results in bodily injury. The cases we discussed above on the topic of whether or when insurance coverage is triggered in a mass-tort context typically dealt with occurrence policies similar to AAU's. See Forty-Eight Insulations, 633 F.2d at 1216 n.7 (because choice of trigger theory "center on interpretation of the term 'bodily injury,'" no party "ascribe any significance" to 1966 change from "accident" to "occurrence" policy). Therefore, our analysis of the trigger issue applies with equal, if not greater, force to AAU's occurrence policy. Because AAU does not dispute
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