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A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund12/12/2005
the claims qualified as covered claims under G. L. c. 175D, and, if so, the amount of coverage available. See West Broadway Task Force v. Boston Hous. Auth., supra at 400, citing Elm Farm Foods Co. v. Cifrino, 328 Mass. 549, 557 (1952) ("It is well established in the Commonwealth that laches does not operate to bar a claim simply because the events which established rights in the plaintiff occurred long ago"). While the memories of witnesses may have faded by the time the misrepresentation issues were litigated at trial, a substantial portion of the judge's evidentiary determinations were based on documents in the record. While Midland's liquidation, understandably, may have resulted in missing files, Chesterton's own documentation of its insurance coverage for that year should have been intact. Moreover, it is arguable that the missing application for the fourth policy year harmed the Fund as much as Chesterton. It was, after all, the Fund that bore the burden of proof on the issue of misrepresentation.
4. We next take up the trigger of coverage issue. "'Trigger of coverage' is a term of art whereby the court describes what must occur during the policy period for potential coverage to commence under the specific terms of an insurance policy." Rubenstein v. Royal Ins. Co., 44 Mass. App. Ct. 842, 850 n.6 (1998), S.C., 429 Mass. 355 (1999). The interpretation of policy language is a question of law for the judge and for a reviewing court. We look to the policy as written; we neither "revise it or change the order of the words." Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 147 (1984). See Somerset Sav. Bank v. Chicago Title Ins. Co., 420 Mass. 422, 427-428 (1995). If in doubt, we "consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered." Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 849 (1993), quoting Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700 (1990).
Under the terms of the first policy, Midland promised to indemnify Chesterton "against such ultimate net loss in excess of [Chesterton's primary limit] as [Chesterton] sustains by reason of liability . . . for damages because of personal injury . . . caused by an occurrence anywhere in the world."
Under the terms of the second and third policies, Midland promised
" o pay on behalf [of Chesterton] such ultimate net loss in excess of [Chesterton's primary limit] as [Chesterton] sustains by reason of liability . . . for damages because of personal injury , property damage or advertising liability to which this policy applies, caused by an occurrence anywhere during the policy period" (emphasis added).
The remaining relevant terms of all three policies are, essentially, the same. Except for slight differences of no import, all define an "occurrence" as:
" n accident, happening or event, including continuous or repeated exposure to conditions, which results in personal injury , property damage or advertising liability neither expected nor intended from the standpoint of the insured. All such exposure arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence."
Under the terms of all three policies, coverage includes "bodily injury , including death at any time resulting therefrom," and, as explained above, the parties have stipulated that the bodily injury alleged in each underlying claim is deemed to begin at the time each claimant was first exposed to asbestos and to continue up until the time of diagnosis, death, or the filing of the underlying claim.
The Fund read
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