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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

OWENS-ILLINOIS, INC. V. UNITED INSURANCE COMPANY, ET AL. (A-10/11/12/13/14-94)

     Argued September 26, 1994 -- Decided December 22, 1994

    O'HERN, J., writing for a unanimous Court.

    The issues on appeal concern: 1) the trigger of coverage that will activate liability insurance policies to provide indemnity to a manufacturer of asbestos products against claims of an asbestos-related injury to persons or property; and 2) the scope of coverage afforded under any policy triggered.

    Between 1948 and 1958 Owens-Illinois, Inc. (O-I) manufactured and distributed Kaylo, a thermal insulation product containing about fifteen percent asbestos. Between 1948 and 1963, O-I was self-insured, choosing to bear the risk of any product liability loss itself. From 1963 to 1977, O-I was insured under excess indemnity insurance policies issued by Aetna Casualty and Surety Co. (Aetna). In 1975, Owens Insurance Limited (OIL) was established as a captive insurance company to provide O-I with reinsurance and loss prevention services. OIL was a subsidiary of O-I and was managed by American Risk Management. In 1977, OIL sought to provide casualty insurance, including products-liability coverage. United Insurance Company (United) provided the primary coverage, under a comprehensive general liability policy (CGL policy). OIL issued the excess umbrella policy and reinsured with various companies, including United and other defendant insurance companies. The management company and the insurers and re-insurers are referred to collectively as the Insurance Companies.

    In early 1978, O-I gave notice of asbestos-related claims involving Kaylo to Aetna, its carrier from September 1, 1963 to September 1, 1977. Aetna denied coverage, contending that the cases should be reported on a manifestation basis and, therefore, the policy in effect when the disease manifested itself should respond to the claims. In 1980, O-I notified the Insurance Companies of the pendency of a growing number of asbestos claims involving Kaylo. The Insurance Companies declined coverage, maintaining that the trigger of coverage was the exposure to the product (which predated the issuance of the OIL policies) and not the manifestation of the disease.

    In 1984, O-I sought from the Chancery Division a declaratory judgment that the two lead carriers, United and OIL, provide coverage for O-I's asbestos-related personal-injury and property-damage claims. In an early phase of the proceedings, the Chancery court concluded that an "injury in fact" triggering coverage under the insurance policies occurs on the inhalation of asbestos fibers and continues up to and including manifestation of an asbestos-related disease (the "continuous-trigger" theory). Following discovery, on cross-motions for summary judgment to determine which of the insurance policies issued from 1977 to 1985 provided indemnity to O-I, the court held that all insurers whose policies were triggered to be jointly and severely liable to O-I to the extent of the policy limits. In addition, the court concluded that the continuous-trigger theory should apply to claims for property damage.

    On appeal, the Appellate Division affirmed in part, reversed in part, and remanded the matter for a hearing on the issue of fraud related to the issuance of the policies. The Appellate Division adopted the continuous-trigger theory of coverage and concluded that the insurers' liability would be joint and several but that allocation of damages on a pro-rated basis was not feasible in light of the indivisible nature of the injury and damage sustained.

    The Supreme Court granted certification limited to two issues: 1) the application of the "continuous-trigger" theory; and 2) any consequent apportionment of liability.

HELD:    In the context of asbestos-related injury or damage, the continuous-trigger theory applies to activate the insurers' obligation to respond under the policy. Therefore, when progressive indivisible injury or damage relating to person or property results from exposure to injurious conditions for which civil liability may be imposed, courts may reasonably treat the progressive injury or damage as an occurrence within each of the years of a comprehensive general liability policy. A fair method of allocation of multiple indemnity policies triggered under the continuous-trigger theory is one that is related to both the time on the risk and the degree of the risk assumed, including periods of no insurance when such insurance was available.

1.    The three most frequently offered theories for the trigger of coverage are: 1) the exposure theory the date of occurrence is the date on which the injury-producing agent first contacts the body, 2) the manifestation theory - the injury does not occur until the disease manifests itself, and 3) the continuous-trigger theory - the date of occurrence is the continuous period from exposure to manifestation. Under the continuous-trigger theory, the injury occurs during each phase of environmental contamination - exposure, exposure in residence, defined as further progression of injury even after exposure has ended, and manifestation of the disease. (pp. 10-17)

2.    The time of the occurrence of an accident triggering coverage within the meaning of an indemnity policy is not the time the wrongful act is committed but the time when the injury occurs. Asbestos-induced disease is progressive in nature. Some injury to body tissue occurs on the inhalation of asbestos fibers, and once lodged, the fibers pose an increased likelihood of causing or contributing to disease. (pp. 18-21)

3.    The latent nature of any property damage in the case of asbestos products is sufficiently analogous to the contraction of disease from exposure to asbestos to warrant the use of a continuous-trigger theory. Thus, in the context of this case, the claims of asbestos-related property damage from installation through discovery or remediation trigger the policies on the risk throughout that period. (pp. 21-24)

4.    Inhalation of asbestos fibers causes some injury to tissue; however, does that injury trigger coverage under a CGL policy? Furthermore, at what point does the injury require indemnity? The resolution of those issues is necessarily imperfect because the concepts of legal causation have not developed at the same pace as science, especially in mass-exposure, toxic-tort cases. Thus, common-law resolution of the trigger-of-coverage issue requires consideration of the scope of coverage if a policy is triggered. (pp. 24-28)

5.    Under the joint-and-several allocation theory adopted by the Appellate Division in this case, any triggered policy must respond for the entirety of a claim, subject to the effect of the "other insurance clauses" and principles of equitable contribution, but without assigning responsibility for a portion of coverage to the policyholder even if it were uninsured or self-insured. Moreover, when more than one policy applies to a loss, the "other insurance" provisions of each policy provide a scheme by which the insurer's liability is to be apportioned. On the other hand, some courts selecting multi-year triggers of coverage have held that triggered policies must respond to a claim on a pro-rated basis and that a policyholder is responsible for a portion of indemnification and defense obligations as a result of periods of time when it was uninsured or self-insured. (pp. 28-34)

6.    Here, the relevant policy language does not resolve the question of allocation in the case of continuing injury triggering successive policies on the risk. Moreover, the usual rules of contract interpretation are not helpful in the context of these cases. Thus, public interest factors serve to guide the Court. Among the factors to be considered is the extent to which a decision will make the most effective use of the resources available to address environmental disease or damage. One principle is to provide incentives that parties should engage in responsible conduct that will increase, not decrease, available resources. (pp. 34-48)

7.    "Other insurance" clauses in standard CGL policies do not resolve the question of the extent to which each triggered policy shall provide indemnity under the continuous-trigger theory. A fair method of allocation appears to be one that is related to both the time on the risk and the degree of risk assumed. Hence, any allocation should be in proportion to the degree of the risks transferred or retained during the years of exposure. Losses should be allocated among the carriers on the basis of the extent of the risk assumed, i.e., apportioned on the basis of policy limits, multiplied by years of coverage. Policy limits and exclusions also must be taken into account. When periods of no insurance reflect the decision by the policyholder to assume or retain a risk, it is reasonable to expect the policyholder to share in the allocation. Determining the fair amount of allocation can be a difficult task in these cases; therefore, courts must take an active role in the management and resolution of coverage controversies, including utilizing other methods of dispute resolution and appointing a special master to aid the court in developing an allocation formula. (pp. 48-56)

    Judgment of the Appellate Division is REVERSED insofar as it allocated none of costs of indemnity or defense to periods of no-insurance and otherwise directed contribution under the "other insurance" clauses of the policies. The matter is REMANDED to the Chancery Division for further proceedings in accordance with this opinion.

    JUSTICES CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN join in JUSTICE O'HERN's opinion. CHIEF JUSTICE WILENTZ did not participate.

                            SUPREME COURT OF NEW JERSEY
A-10/11/12/13/ 14 September Term 1994

OWENS-ILLINOIS, INC., a
corporation duly organized
under the laws of the State
of Ohio,

    Plaintiff-Respondent,

        v.

UNITED INSURANCE CO., a
corporation duly organized
under the laws of the British
West Indies; OWENS INSURANCE
LIMITED, a corporation duly
organized under the laws of
Bermuda; and GENERAL REINSURANCE
CORPORATION, a corporation duly
organized under the laws of
Delaware,

    Defendants-Appellants,

     and

AMERICAN RISK MANAGEMENT, INC.,
a corporation duly organized
under the laws of Bermuda;
INTERNATIONAL RISK MANAGEMENT
LTD., a corporation duly organized
under the laws of Bermuda; and
ARMRISK, INC., a corporation duly
organized under the laws of
Bermuda,

    Defendants,

     and

ALLSTATE INSURANCE COMPANY and
AMERICAN RE-INSURANCE COMPANY,

    Intervenors-Appellants,

     and

CIGNA REINSURANCE COMPANY
(formerly INA Reinsurance Company),

    Intervenor.

        Argued September 26, 1994 -- Decided December 22, 1994

On certification to the Superior Court, Appellate Division, whose opinion is reported at 264 N.J. Super. 460 (1993).

Stephen D. Cuyler argued the cause for appellant United Insurance Company (Cuyler, Burk & Matthews, attorneys; Allen E. Molnar, of counsel; Mr. Molnar and Gregg S. Sodini, on the briefs).

David R. Gross argued the cause for appellant General Reinsurance Corporation (Budd Larner Gross Rosenbaum Greenberg & Sade, attorneys; Mr. Gross, Joseph J. Schiavone, Donald P. Jacobs, Vincent J. Proto, and Elda Beylerian, on the briefs).

David J. D'Aloia argued the cause for intervenor-appellant Allstate Insurance Company (Saiber Schlesinger Satz & Goldstein, attorneys; Mr. D'Aloia, Sean R. Kelly, and Michael J. Geraghty, on the briefs).

William J. Brennan, III, submitted a brief on behalf of intervenor-appellant American Re-Insurance Company (Smith, Stratton, Wise, Heher & Brennan, attorneys; Mr. Brennan and Wendy L. Mager, on the briefs).

Bertram E. Busch submitted briefs on behalf of appellant Owens Insurance Limited (Busch and Busch, attorneys; Mr. Busch and Kenneth A. Levine, on the briefs).

Andrew T. Berry argued the cause for respondent Owens-Illinois, Inc. (McCarter & English, attorneys; Mr. Berry, Gita F. Rothschild, and John L. McGoldrick, of counsel; Mr. Berry, Ms. Rothschild, Anthony Bartell, Teresa L. Moore, Rosanne C. Baxter, and Anthony J. Del Piano, on the briefs).

Gerald A. Hughes submitted a brief on behalf of amicus curiae Insurance Environmental Litigation Association (Hughes & Hendrix, attorneys).

    The opinion of the Court was delivered by

O'HERN, J.

    This appeal involves two aspects of a dispute between a manufacturer of an asbestos product and its insurers concerning the coverage afforded to the manufacturer under its liability insurance policies. First is the "trigger of coverage" issue, a shorthand expression for identifying the events that must occur during a policy period to require coverage for losses sustained by the policyholder. Second is the "allocation issue," which involves the scope of coverage afforded under a triggered policy. One question, for example, in the case of gradually-inflicted injury or property damage triggering a number of successive policies is whether the policyholder may recover the sum of all the policies or some allocated portion of each policy. The case is complicated by the fact that the plaintiff-manufacturer used a "captive insurance company" to manage its risks and to acquire the subject policies. That captive company, a wholly-owned subsidiary of the manufacturer, was in form a shell that reinsured the risks with the various defendant insurance companies.
    The Appellate Division has ordered a hearing, 264 N.J. Super. 460, 522 (1993), on issues of fraud related to the issuance of the policies in that officers of the manufacturing company or the captive company, interlocked as they were, may have failed to disclose fully the underwriting risks for which the manufacturer sought coverage. The court below also believed

that "further airing" was necessary to resolve whether the manufacturer expected or intended that its product would cause injury. Id. at 515. Those and other issues decided by the Appellate Division are not part of this appeal.

From September 1, 1963, to September 1, 1977, O-I was insured under excess indemnity (umbrella) insurance policies issued by the Aetna Casualty and Surety Company (Aetna). Owens-Illinois, Inc. v. Aetna Casualty & Sur. Co., 597 F. Supp. 1515, 1517 (D.D.C. 1984). Those Aetna policies contained a deductible, or "self-insured retention" (SIR), for each occurrence resulting in personal injury or property damage. The SIR was $100,000 from 1963 to 1970, and $250,000 from 1971 to 1977. Above the deductible amount, the policies provided that Aetna would cover O-I's "ultimate net loss" (defense costs and indemnity) up to the "aggregate annual" and "per occurrence" limits of the policies. The aggregate annual and per-occurrence limits, which were the same within each policy, ranged from $20 million to $50 million over the period of the insurance. Id. at 1517 n.6.
    In the mid-1970s, defendant American Risk Management, Inc., offered to develop a new program of insurance for O-I involving a captive insurance company. The captive company would be a subsidiary of O-I. For a fee, American Risk Management would manage the subsidiary and arrange to reinsure the policies with companies in the United States and abroad. In 1975, Owens Insurance Limited (OIL) was established as the captive insurance company and began providing O-I with a fire and extended peril reinsurance program and loss prevention services. In 1976, American Risk Management proposed that OIL also provide O-I's casualty insurance, including products-liability coverage.

    In June 1977, O-I invited quotes from various sources, including American Risk Management, to replace its Aetna insurance coverage, which would expire September 1, 1977. The bid package solicited a comprehensive general liability (CGL) policy covering general and products liability. After receiving various proposals, O-I accepted American Risk Management's proposal to provide a comprehensive liability insurance package. The scheme of coverage was for an SIR of $250,000 per occurrence; primary coverage above the SIR up to $1 million per occurrence; and excess umbrella coverage of $50 million. The excess umbrella policy limits increased from $50 million to $150 million during the period between 1977 and 1985. Defendant United Insurance Company (United) provided the primary coverage. OIL issued the excess umbrella policy and reinsured with various companies, including United and other defendants. We shall refer to the management company and the insurers and re-insurers collectively as the Insurance Companies. We do not decide any issues regarding the status of the individual companies.

basis, that is, the policy in effect when the disease manifested itself should respond to the claim. Because most statutes of limitations were of at least several years in duration, O-I assumed that Aetna would be the responsible carrier. As a precaution, O-I also informed the Insurance Companies of the asbestos claims.     
    Aetna rejected the claims submitted to it because it insisted that the $250,000 SIR was a per-claim figure. It thus estimated that none of the claims could reasonably be thought to call for coverage under its policies. As claims continued to mount, O-I recognized that the claims were no longer the exclusive responsibility of Aetna because the manifestation dates were now presumed to be after September 1, 1977. Accordingly, in 1980 O-I gave formal notice to the Insurance Companies of the pendency of those asbestos claims. The Insurance Companies adopted the same position as had Aetna with respect to the $250,000 SIR. They further maintained, however, that the trigger of coverage was the exposure to the product and not the manifestation of the disease. Because the exposures had presumably predated the issuance of the OIL policies, the Insurance Companies declined coverage.
    By January 1980, O-I had established a $3 million reserve for general legal expenses, substantially generated by its growing number of asbestos cases.
    In late November 1984, O-I sought a declaratory judgment from the Chancery Division that the two lead carriers, United and

OIL, must provide coverage for O-I's asbestos-related personal injury and property-damage claims. The other defendants joined or were joined in the proceedings.

and sale of Kaylo must be regarded as the single occurrence triggering liability for asbestos-related injury or damage. O-I's coverage is thus subject to a single deductible for each policy period." 264 N.J. Super. at 503.
    In addition, the Chancery Division held, and the Appellate Division agreed, that certain exclusions in the policies were either internally contradictory or ineffective. Those questions of policy construction pertaining specifically to the policies in this case were not of such public importance as to warrant review under Rule 2:12-4. However, the Appellate Division did agree with the Insurance Companies that disputed issues of fact existed that required further hearings on certain other coverage issues. 264 N.J. Super. at 521-22. The issues of expected or intended environmental injury should be more readily resolved in light of this Court's decision in Morton International, Inc. v. General Accident Insurance Co. of America, 134 N.J. 1 (1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2764, 129 L. Ed.2d 878 (1994).
    The economic realities of this litigation are stark. By 1991, when O-I filed its Appellate Division briefs, it had settled 43,000 bodily-injury lawsuits. More than 90,000 bodily-injury and sixty-three property-damage cases were pending in all states and some territories. With bodily-injury lawsuits accumulating at the rate of 1700 per month, O-I's unreimbursed costs of defending and settling those cases had by then exceeded $95 million. O-I had already spent close to $10 million in defense and settlement costs associated with the property-damage

cases. The questions raised here concern which of the insurance policies issued from 1977 to 1985 provide indemnity to O-I and to what extent.
    Our grant of certification, 135 N.J. 301 (1994), was limited to two issues: (1) the application of the "continuous trigger" theory, and (2) any consequent apportionment of liability.

The OIL policy provides:

        The [insurer] will indemnify the insured for ultimate net loss in excess of the applicable underlying limit which the insured shall become legally obligated to pay as damages because of:
        A. Personal Injury [or]
        B. Property Damage * * *
        to which this policy applies, caused by an occurrence * * * .

Both the United and OIL policies are subject to policy limits and certain exclusions.    Although they are not boilerplate policies, they closely resemble a standard CGL policy.
    The United policy contains the following definitions: An "occurrence" means "an accident, including continuous or repeated exposure to conditions, which results in Bodily Injury or Property Damage neither expected nor intended from the standpoin[t] of the Insured." "Bodily injury" means "bodily injury, sickness or disease sustained by any person which occurs during the policy period * * * ." "Property damage" means "physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom * * * ." The corresponding definitions in the OIL policy are similar.
    The policies do not refer to a "trigger"; "the term `trigger' is merely a label for the event or events that under the terms of the insurance policy determines whether a policy must respond to a claim in a given set of circumstances."
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 9 (PLI Litig. & Admin. Practice Course Handbook Series No. 454, 1993), available in WESTLAW, PLI-LIT Database, *2-3.
            The "trigger" is plain when these three policy provisions are combined: the carrier must pay for "all sums which the insured shall become legally obligated to pay as damages because of . . . [injury . . . sustained by any person which occurs during

the policy period] or [injury to . . . property which occurs during the policy period], caused by [an accident, including continuous or repeated exposure to conditions]. . . ." In short, CGL policies provide coverage for property damage or bodily injury that "occurs" during the policy period.

    Despite the relative familiarity of these concepts, the one hundred or so pertinent words in the coverage clause have spawned "a bewildering plethora of authority" interpreting their meaning. Gottlieb v. Newark Ins. Co., 238 N.J. Super. 531, 534 (App. Div. 1990).
     To place the issues in context, we shall use an example to which most of us can relate. (The example is intended not to suggest that workers might in fact contract disease in the manner as stated but only to simplify our analysis.) Assume that a group of workers occupied an office building for nine years under the following circumstances. For the first three years, the building owners had no liability insurance, assuming any risk of loss. During each of the middle three years, the owners were insured under a CGL policy with the Trustworthy Insurance Company for $5,000,000 per occurrence. For the remaining three years of the period, the owners were again uninsured. Assume, too, that during the first three years the building occupants were exposed to asbestos fibers in the ceilings and insulation but that all asbestos products were removed at the end of the third year. During the first three years, no occupants of the building

manifested any symptoms of disease. During the fourth, fifth, and sixth years, there was "exposure in residence," that is, some building occupants began to develop breathing problems, but no disease was diagnosable. In the final three years, some of the building's occupants were diagnosed with asbestos-related diseases.
    In the tenth year the owners received claims from thirty people who had worked in the building during the entire nine years asserting that they were suffering from asbestos-related disease as a result of their work environment. The owners, when presented with the claims, no longer had insurance. They sought coverage, however, for all the claims from the Trustworthy Insurance Company, which had insured the owners for three of the nine years--years when the building contained no asbestos. Must Trustworthy respond to the claims? If so, to what extent?
    Trustworthy's CGL policy is as broad as those in this case. The policy promised that the company would pay all sums that the insured should become legally obligated to pay as damages for bodily injury caused by an occurrence during the policy period. Each of the thirty claimants in our hypothetical might recover from the owners a large sum, let us say $500,000, for a total of $15,000,000 in damages. Was there an occurrence during the fourth, fifth, and sixth years that calls for full indemnity? The owners contend that the fibers once inhaled by the building occupants continued to cause injury to the occupants during those middle years, and that they paid premiums to cover their risk of

liability for injury during those three years even if caused by earlier exposure. The owners seek indemnity to the extent of the full $5,000,000 for each year of coverage, for a total of $15,000,000. The first question is: Were the policies issued in the middle years "triggered"?

over the continuous period from exposure to manifestation (the "continuous trigger" rule).

            The exposure theory holds that the date of occurrence is the date on which the injury-producing agent first contacts the body. The leading case espousing this view is the Sixth Circuit's decision in Insurance Co. of North America v. Forty-Eight Insulations, Inc. [ 633 F.2d 1212 (6th Cir. 1980), clarified in part, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S. Ct. 686, 70 L. Ed.2d 650 (1981)]. The court in Forty-Eight found that the occurrence was the immediate contact of an asbestos fibre with the lungs, even though the disease took some time to develop. The court's central purpose was to maximize coverage: it chose the exposure theory because the plaintiff was effectively uninsured after 1976, and any other theory would have put the date of occurrence after 1976. In most toxic waste cases, however, when exposure is not discoverable until many years after the fact, the exposure rule will not provide a feasible method for insurers to monitor risks and charge appropriate premiums.

            Courts have similarly adopted the manifestation theory for its expedience in maximizing coverage. In Eagle-Picher Industries v. Liberty Mutual Insurance Co. [ 682 F.2d 12 (1st Cir. 1982), cert. denied, 460 U.S. 1028, 103 S. Ct. 1280, 75 L. Ed.2d 500 (1983)], the First Circuit argued that the injury resulting from inhalation of asbestos fibres did not "occur" until the disease manifested itself. The court took note of the Forty-Eight opinion but distinguished it on the ground that, given the particular facts before the court, the manifestation rule would maximize coverage. In most cases, however, a manifestation rule would reduce coverage: insurers would refuse to write new insurance for the insured when it became apparent that the period of manifestations, and hence a flood of claims, was approaching. The insured would be left without coverage for victims whose diseases were not yet manifested.

            The continuous trigger theory has also been justified by its ability to maximize coverage in particular cases. In Keene Corp. v. Insurance Co. of North America [ 667 F.2d 1034 (D.C. Cir. 1981), cert. denied, 455 U.S. 1007, 102 S. Ct. 1644, 71 L. Ed.2d 875 (1982)], the District of Columbia Circuit held that because asbestos-related disease develops slowly, the date of the occurrence should be the continuous period from exposure to manifestation. It held all the insurers over that period liable for the continuous development of the disease. Again, the court relied on the presumption of maximizing coverage. Because it avoids the dangers of the manifestation rule, and because it encourages all insurers to monitor risks and charge appropriate premiums, the continuous trigger rule appears to be the most efficient doctrine for toxic waste cases.

        [Developments in the Law--Toxic Waste Litigation, 99 Harv. L. Rev. 1458,
        1579-81 (1986) (footnotes omitted).]

    
The conceptual underpinning of the continuous-trigger theory, then, is that injury occurs during each phase of environmental contamination -- exposure, exposure in residence (defined as further progression of injury even after exposure has ceased), and manifestation of disease.     
    At least two other less-frequently followed theories exist. One is the "injury-in-fact" (or "damages-in-fact") approach, which holds that coverage is triggered by a showing of actual injury or damage-producing event. See, e.g., American Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485 (S.D.N.Y. 1983), aff'd as modified, 748 F.2d 760 (2d Cir. 1984). Under that theory, coverage is triggered by "a real but undiscovered injury, proved in retrospect to have existed at the

relevant time * * * irrespective of the time the injury became manifest." Id. at 1497. "That is, after an injury has been diagnosed, it may be inferred, from the nature of the gestation period and from the stage of the illness, that the harm actually began sometime earlier." Armstrong World Indus., Inc. v. Aetna Casualty & Sur. Co., 26 Cal. Rptr.2d 35, 52 (Ct. App. 1993), review granted sub nom. In re Asbestos Ins. Coverage Cases, 866 P.2d 1311 (Cal. 1994).
    Finally, the "double-trigger" theory holds that injury occurs at the time of exposure and the time of manifestation, but not necessarily during the intervening period. E.g., Zurich Ins. Co. v. Raymark Indus., Inc., 514 N.E.2d 150, 161 (Ill. 1987).
    The court in Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1041, 1048-49 (D.C. Cir. 1981), cert. denied, 455 U.S. 1007, 102 S. Ct. 1644, 71 L. Ed.2d 875 (1982), relied on the presumption of maximizing coverage, but that appears an uneven principle in this setting. To return to our example of the office building: Had we adopted the manifestation theory in an earlier effort to maximize coverage, the building owners in our hypothetical would be uncovered. Had we adopted, for the same reason, the exposure theory, the owners would be similarly uncovered. A rule of law premised on nothing more than the result-oriented goal of maximizing coverage has been described as "judicial legislation." American Home Prods., supra, 565 F. Supp. at 1512. A more consistent principle is required.

            As a general rule the time of the "occurrence" of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed but the time when the complaining party was actually damaged. "The time of the accrual of the insured's liability is the determining factor, not the time of

an event which ultimately results in liability." [Citations omitted] [Id. at 579].

        Later in the opinion the court said:

            The tort of negligence is not committed unless and until some damage is done. Therefore, the important time factor, in determining insurance coverage where the basis of the claim is negligence, is the time when the damage has been suffered. [Id. at 578].

    The Insurance Companies maintain that Hartford is controlling and that "the time when the damage has been suffered" must be proven on a case-by-case basis in the tens of thousands of pending lawsuits to establish a duty to indemnify under the policies. (They do concede, however, that some generalized formula for progression might suffice.) Hartford, however, expressly declined to resolve the time of an occurrence in the case of progressive bodily disease. Judge Skillman explained:
        [T]he courts which have endorsed the "exposure" theory in the asbestosis cases have not said that mere exposure to a substance is a "bodily injury." That would be an untenable distortion of the policy language. Rather, those courts have concluded from medical testimony that the inhalation of asbestos causes immediate tissue damage, although the effects of that damage do not immediately manifest themselves, and that such tissue damage is a "bodily injury."

Hartford, the company on the risk when Ann Marie's illness became manifest, had simply failed to offer any evidence that the

medication administered to the child had caused her any damage before the Hartford coverage took effect.

    The "overwhelming weight of authority" elsewhere acknowledges the progressive nature of asbestos-induced disease, and affirms that "`bodily injury' occurs when asbestos is inhaled and retained in the lungs." Lloyd E. Mitchell, Inc. v. Maryland Casualty Co., 595 A.2d 469, 478 (Md. 1991). Generalities about asbestos may be overblown. See Becker v. Baron Bros., ___ N.J. ___ (1994) (finding erroneous charge to jury that as matter of

law any product containing asbestos, without regard to type of asbestos, was defective if it did not contain warning). Still, we are satisfied, like most American jurisdictions, that medical science confirms that some injury to body tissue occurs on the inhalation of asbestos fibers, and that once lodged, the fibers pose an increased likelihood of causing or contributing to disease. Lloyd E. Mitchell, Inc., supra, 595 A. 2d at 478-81. See also Fischer v. Johns-Manville Corp., 103 N.J. 643, 660-61 n.2 (1986) in which we recognized the progressive nature of asbestos-related disease.

removal of the building products containing asbestos. In Armstrong World Industries, supra, the court concluded that when property damage takes place during several policy periods, "insurance coverage is triggered when any part of the damage--any release or reentrainment--takes place." 26 Cal. Rptr. 2d at 88.
    Gottlieb, supra, 238 N.J. Super. at 537-38, held that, pending a hearing to determine various factual matters, homeowners could, under a continuous-trigger theory, recover from a pest control company's earlier insurer for chemical poisoning. Lac d'Amiante du Quebec, Ltee. v. American Home Assurance Co., 613 F. Supp. 1549 (D.N.J. 1985), held that under New Jersey law the progressive nature of asbestos-related property damage triggers every policy on the risk from installation to removal. The court took judicial notice of the fact that asbestos products cause continuous property damage from installation until removal:
        It is recognized that there is a natural deterioration of asbestos-containing materials resulting in the release of fibers, release that may occur by a slow continuous degradation of the insulating surface which may be accelerated by the air movement and vibration which occurs in most buildings. More specifically, friable asbestos material breaks down as a result of vibrations, deterioration, or direct contact and damage and, as it ages, it can lose its cohesive strength. Fallout of fibers from deteriorating material is continuous.

        [613 F. Supp. at 1561 (citation omitted).]

    Property-damage cases are analogous to the contraction of disease from exposure to toxic substances like asbestos. Like a person exposed to toxic elements, the environment does not

necessarily display the harmful effects until long after the initial exposure. "Thus, while property damage is not, of course, an insidious disease, many of the same considerations apply." Ibid. The court in Armstrong World Industries, supra, also recognized that property damage caused by asbestos might not be complete at installation. The California Court of Appeals in that case agreed with the lower court's conclusions that property damage occurs not only at the time asbestos is installed, but also "`at any time asbestos fiber or material is released from [asbestos-containing building material] into the air or on surfaces of the building, and when settled releases are disturbed and reentrained into the air.'" 26 Cal. Rptr. 2d at 87 (quoting Asbestos Insurance Coverage Cases, Judicial Council Coordination Proceeding No. 1072, Super. Ct., San Francisco, Cal. Jan. 24, 1990). Although restricting trigger of coverage to periods of release or reentrainment, the court in Armstrong World Industries acknowledged that property damage caused by asbestos is "continual in that new episodes of releases or reentrainments of asbestos fibers may occur repeatedly over time." 26 Cal. Rptr. 2d at 88.
    O-I informs us that a small percentage of its asbestos-related expenditures has gone to satisfy property damage cases. At least in the context of this case (in that no one suggests that the process was anything but continuous), we hold that claims of asbestos-related property damage from installation through discovery or remediation (the injurious process)

trigger the policies on the risk throughout that period. There is some question about when the injurious process ends. We do not reach that issue in this opinion. We shall concentrate in this opinion primarily on the issues of asbestos-related personal injury.

term's ordinary definition should be given weight, but the definition is only useful when viewed in the context of the contract as a whole.

    However, just as we did not find ambiguity in the language of the pollution-exclusion clause in Morton International, supra, 134 N.J. at 28-29, we do not find ambiguity in the language of the "occurrence" clause. The words are all familiar and easily understandable. "The plain meaning of the `occurrence' clause is no secret to the parties." American Home Prods., supra, 565 F. Supp. at 1497.
    What is not so easily understandable is the point at which the law will say that injury requires indemnity. In that sense, the concept of injury, like the related concepts of duty and causation, is an instrument of policy. After all, the air we breathe and the water we drink contain trace elements of toxic substances. The law decides when an invasion of the body constitutes an injury entitling one to damages.
    In addition, injury may mean different things in different contexts. For example, in Coughlin v. Owens-Illinois, Inc., 27 Cal. Rptr.2d 214, 228 (Ct. App. 1993), review granted, 29 Cal. Rptr 2d (Cal. 1994), O-I contended that for purposes of determining the effective date of California's Proposition 51, modifying rules of common-law liability, an action for asbestos-related injury accrues when disease is diagnosed or discovered, a position different from that which it holds today. See also Owens-Illinois, Inc. v. Armstrong, 604 A.2d 47, 53 (Md.), cert.

denied, ___ U.S. ___, 113 S. Ct. 204, 121 L. Ed.2d 145 (1992) (rejecting O-I's argument regarding applicability of newly-established cap on non-economic damages that action for asbestos-related injury did not arise until claimant was first diagnosed with asbestosis).     
    Our own law has drawn the line on liability to indemnify for injury in different ways in different contexts. In Ayers v. Township of Jackson, 106 N.J. 557, 598-99 (1987), we concluded that absent diagnosed disease, the ingestion of toxic substances that enhanced the risk of progressive growth of cancer did not constitute a legal injury warranting compensation. In Mauro v. Raymark Industries, Inc., 116 N.J. 126 (1989), we held that even when the body suffered diagnosable injury due to asbestos exposure (thickening of chest walls and calcification of diaphragm), the injury was insufficient to allow recovery for the enhanced risk of contracting cancer.
    What we did, however, in the face of doubtful scientific premises was to adapt our law to the uncertainties of medical causation. In Ayers, supra, we held that even when there is no bodily injury (or none that can be found), "the public health interest may justify judicial intervention even when the risk of disease is problematic." 106 N.J. at 605. We said that "mass-exposure toxic-tort cases involve public interests not present in conventional tort litigation." Id. at 609. We thus allowed tort recovery for medical-surveillance damages even without evidence of physical injury. Id. at 610-11. In Mauro we relaxed our

statute of limitations and single-controversy doctrines to allow victims to assert later claims when the foreshadowed disease eventually occurs. In candor, we "acknowledge[d] that our resolution of [that] issue [was] imperfect." 116 N.J. at 143.
    So too here, our resolution of the issues is necessarily imperfect. Our concepts of legal causation were developed in an age of Newtonian physics, not of molecular biology. Were it possible to know when a toxic substance clicks on a switch that alters irrevocably the composition of the body and before which no change has "occurred," we might be more confident that occurrence-causing damages had taken place during a particular policy period. The limitations of science in that respect only compound the limitations of law. See Comment, Judicial Attitudes Towards Legal and Scientific Proof of Cancer Causation, 3 Colum. J. Envtl. L. 344, 347 (1977) (outlining theories of how mutations produce a cancerous cell).
    Mass-exposure toxic-tort cases have simply exceeded the capacity of conventional models of judicial response.
        The overwhelming conclusion of the commentators who have evaluated the result is that * * * common-law tort doctrines are ill-suited to the resolution of such injury claims, and that some form of statutorily-authorized compensation procedure is required if the injuries sustained by victims of chemical contamination are to be fairly redressed.

    [Ayers, supra, 106 N.J. at 581.]
            

No such procedure has been forthcoming. Hence, courts must adapt common-law doctrines "to the peculiar characteristics of toxic-tort litigation." Ibid. We advert to those principles because we believe that common-law resolution of the trigger-of-coverage issue requires that we consider, at the same time, the issue of scope of coverage if a policy is triggered. "[T]he choice of trigger theory is related to the method a court will choose to allocate damages between insurers." Northern States Power Co. v. Fidelity and Casualty Co. of New York, ___ N.W.2d ___ (Minn. 1994).

    Assuming that every phase from exposure to manifestation of disease is a period of continuous bodily injury, does that trigger the sum of all policies in force during the years of exposure, exposure in residence, and manifestation? Recall that in our hypothetical the building owners were insured only during the middle three years of the workers' occupancy. Keene, supra, 667 F.2d 1034, is the leading case for the proposition "that any triggered policy must respond for the entirety of a claim, subject to the effect of `other insurance clauses' and principles of equitable contribution, but without assigning responsibility for a portion of coverage to the policyholder even if it were uninsured or self-insured." David W. Steuber, et al., Emerging Issues in Environmental Insurance Coverage Litigation, in Fifth

Annual Litigation Management Supercourse 331 (PLI Litig. & Admin. Practice Course Handbook Series No. 496, 1994), available in WESTLAW, PLI-LIT Database, *60. Monsanto Co. v. C.E. Health Compensation and Liability Insurance Co., ___ A.2d ___, n.6 (Del. 1994), describes the Keene rule as the "majority rule," citing, among other authorities, ACandS Inc. v. Aetna Casualty & Surety Co., 764 F.2d 968, 974 (3d Cir. 1985); Zurich Insurance Co., supra, 514 N.E. 2d at 165; and J.H. France Refractories Co. v. Allstate Insurance Co., 626 A.2d 502, 508 (Pa. 1993). Sandoz, Inc. v. Employer's Liability Assurance Corp., 554 F. Supp. 257, 266 (D.N.J. 1983), accepted that in certain cases medical evidence might establish the extent to which bodily damage occurred during a policy period, thus allowing for apportionment. In default of such evidence, it accepted the Keene approach.
     The conceptual model employed by the Keene court is that of a pleated accordion surrounding the entire "occurrence" and representing the time span from exposure to manifestation. Its solution to the problem of indivisible injury was to collapse the injuries in the accordion into a single year. It wrote:
        The principle of indemnity implicit in the policies requires that successive policies cover single asbestos-related injuries. That principle, however, does not require that Keene be entitled to "stack" applicable policies' limits of liability. To the extent possible, we have tried to construe the policies in such a way that the insurers' contractual obligations for asbestos-related diseases are the same as their obligations for other injuries. Keene is entitled to nothing more. Therefore, we hold that only

one policy's limits can apply to each injury. Keene may select the policy under which it is to be indemnified.

That theory is sometimes referred to as one of joint-and-several allocation. The Keene court explained that it did not mean that a single insurer will be saddled with full liability for any injury. Keene held that when more than one policy applies to a loss, the "other insurance" provisions of each policy provide a scheme by which the insurer's liability is to be apportioned. Id. at 1050.See footnote 1 The Appellate Division adopted the Keene theory of joint-and-several allocation.
    What the Keene decision would mean in the context of our office-building example is not perfectly clear to us. By way of illustration, the Keene opinion states that "only one policy's limits can apply to each injury." Id. at 1049. But what did the Keene court mean by "injury"? Did it mean each claim of injury, or each cause of injury? Some language in the opinion has led commentators to believe it meant the latter: "The key to the Keene court's decision was its conclusion that there was only a single occurrence. The court's concern was that the insurers' liability for a long-term exposure injury be the same as their

obligations for other types of losses." William R. Hickman & Mary R. DeYoung, Allocation of Environmental Cleanup Liability Between Successive Insurers, 17 N. Ky. L. Rev. 291, 301 (1990).
    If the Keene court's concern was that the insurance companies' liability for long-term exposure to injury be the same as their obligations for other types of losses, only one policy's limits would seem to apply to all claims arising out of the same occurrence, as would have been the case had an asbestos-laden steam pipe exploded in the fourth year of our illustration, causing immediate injury to thirty of the building occupants. We surmise, however, that the Keene court's holding is that one policy's limits apply to each claim of injury, and that in our office-building hypothetical the building owner might have assigned ten of the claims to year four, ten to year five, and ten to year six. The cross-indemnity among the policies would neutralize the effect of contribution on policy limits. In Air Products and Chemicals, Inc. v. Hartford Accident and Indemnity Co., 707 F. Supp. 762 (E.D. Pa. 1989), aff'd in part, vacated in part, 25 F.3d 177 (3d Cir. 1994), the district court applied a per-claim analysis to triggered policies but did not permit the policyholder the discretion to select the policy for coverage. Following Pennsylvania law, that court directed that "liability among triggered policies `should be apportioned chronologically and seriatim.'" 707 F. Supp. at 769 (quoting J.H. France Refractories Co. v. Allstate Ins. Co., No. 3933 (Phila. Ct. C.P. Apr. 18, 1986), vacated on other grounds, 539 A.2d 1345 (Pa.

Super. 1988), rev'd, 555 A.2d 797 (Pa. 1989), on remand