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Austin v. Abney Mills9/4/2002
te.' " Ducre v. Mine Safety Appliances, 573 F.Supp. 388, 391 n. 1 (E.D.La.1983), aff'd in part and rev'd in part, 752 F.2d 976 (5th Cir.), reh'g denied, en banc, 758 F.2d 651 (5th Cir.1985) (quoting Thompson v. Johns-Manville Sales Corp., 714 F.2d 581, 583-84 (5th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984) (Goldberg, J. dissenting) and noting that " ccupational diseases of the kind at hand are particularly difficult to classify pragmatically within the structured concepts of traditional tort law"). Cole, 599 So.2d at 1065.
We then went on to state that the "key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later." 599 So.2d at 1066 (emphasis supplied). We then described the requisite exposures for giving rise to a claim in a long-latency occupational disease case as being "significant continuous." 599 So.2d at 1066.
Elsewhere in Cole, in determining the trigger or timing of insurance coverage in long-latency occupational disease cases, we adopted an exposure theory "which provides that coverage is triggered by the mere exposure to the harmful conditions during the policy period." 599 So.2d at 1076. Although we were discussing insurance coverage at that point in the opinion, we then discussed in a footnote the contraction theory set forth in Faciane, but declined to apply it to triggering insurance coverage and leaving for another day whether the contraction theory applies in determining the applicable law in an executive officer suit context. 599 So.2d at 1076, n. 54. Still, in discussing why an exposure theory was appropriate, we reasoned as follows:
First, the exposure theory comports with a literal construction of the policy language: " ' odily injury ' should be construed to include the tissue damage which takes place upon initial inhalation of asbestos." [Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1223 (6 Cir. 1980), reh'g granted in part, clarified, 657 th F.2d 814 (6 Cir.)]. In so finding, the [Forty-Eight Insulations] Court th relied heavily on the medical evidence, indicating that " njury, in the sense that there is tissue damage, occurs shortly after the initial inhalation of asbestos fibers.... [with e]ach additional inhalation of asbestos fibers result in the build-up of additional scar tissue in the lungs." Id. at 1218. Second, under the facts, the exposure theory would maximize coverage. Id. at 1222. Third, the exposure theory honors the contracting parties' intent by providing for consistency between the insured's tort liability and the insurer's coverage: "The contracting parties would expect coverage to parallel the theory of liability." Id. at 1219. See Comment, Asbestosis: Who Will Pay The Plaintiff?, 57 Tul. L. Rev. 1491, 1506-1507 (1983). Cole, 599 So.2d at 1076-77 (emphasis added).
We then recognized there was a sound basis underlying this exposure theory for triggering coverage:
he exposure theory is more accurately analyzed as positing not that each inhalation of asbestos fibers results in bodily injury, but rather that every asbestos-related injury results from inhalation of asbestos fibers. Because such inhalation can occur only upon exposure to asbestos, and because it is impossible practically to determine the point at which the fibers actually imbed themselves in the victim's lungs, to equate exposure to asbestos with "bodily injury" caused by the inhalation of the asbestos is the "superior interpretation of the contract provisions." Forty-Eight Insulations, 633 F.2d at
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