United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
Zurich American Insurance Company (ZAIC) brought this suit
for equitable contribution, subrogation, and unjust
enrichment against defendants Insurance Company of North
America (INA), Anheuser-Busch, LLC (A-B), and Pacific
Employers Insurance Company. All parties have jointly
stipulated that defendant Pacific Employers should be
dismissed from this suit, so Pacific's motion to dismiss
shall be granted.
insurance policies with both ZAIC and INA at various times
from 1967 - 2008. In 2008, ZAIC represented A-B's
interests in a lawsuit involving asbestos exposure, defending
under a reservation of rights. ZAIC reached a settlement on
A-B's behalf with the plaintiff in that case, and ZAIC
paid the full settlement amount. ZAIC then brought this suit
to recover a pro rata share of the settlement amount from INA
for the relevant time periods when INA provided insurance
coverage to A-B. After INA filed its answer asserting an
affirmative defense of failure to include all necessary
and/or indispensable parties including A-B, ZAIC filed an
amended complaint adding A-B as a defendant.
agreement with both ZAIC and INA, but not with A-B, I
conclude that under Missouri law ZAIC and INA's
obligations are determined by their pro rata share. Each
insurance company's pro rata share is based on the
coverage period for each insurer, or each insurer's time
on the risk. The settlement amount and costs should be
divided by the number of years the asbestos plaintiff was
exposed, with ZAIC and INA each paying for the years they
provided coverage. But when the settlement is prorated in
this way, INA's pro rata share for each year is less than
its annual deductible. INA cannot therefore be liable to ZAIC
for either contribution or subrogation.
the issue of whether ZAIC is entitled to relief against A-B
is not before me now, A-B has not established that it is
entitled to summary judgment of ZAIC's claims against it.
A-B's arguments are not sufficient to preclude a claim in
equity by ZAIC concerning either A-B's obligation under
the deductible endorsements of the INA policies, or its
obligation for the uncovered years when the INA policy
exclusion left A-B with no asbestos liability coverage.
parties assert that this case can be resolved on summary
judgment motions and have filed motions seeking such relief.
But complete relief cannot be granted on motions for summary
judgment because ZAIC's motion is not directed to its
claim against A-B. Because I am denying A-B's motion for
summary judgment, ZAIC's claim against A-B is still
2008, the estate of the wife of a former A-B employee filed a
wrongful death suit against A-B. The suit alleged that the
decedent wife contracted mesothelioma as a result of her
husband's exposure to asbestos during his employment as a
mechanic with A-B, and her subsequent laundering of his work
clothes. The period of alleged exposure occurred between the
date of their marriage, July 30, 1971, and the date of the
employee husband's retirement from A-B, July 31, 1996.
A-B tendered defense of this suit to insurer ZAIC, who agreed
to provide A-B with a defense subject to a reservation of
rights. The parties settled during a 2014
mediation for $1.5 million - an amount all parties stipulate
purchased Policy No. GA 85-79-000 from ZAIC for the period of
July 1, 1967 to July 1, 1972 for personal injury liability
and excess liability coverage, among other coverages.
Subsequently, A-B purchased Policy No. GA 87-13-500 for the
period of July 1, 1972 to July 1, 1980 from ZAIC with similar
personal injury and excess liability coverage. Both these
policies state in part:
Zurich will pay on behalf of the insured all sums which the
insured shall become legally obligated to pay as damages
because of … personal injury … to which this
Stipulation of Fact Ex. 2 at 4, ECF No. 79-2; Ex. 3 at 4, ECF
also contain provisions on “Other Insurance”
When both this insurance and other insurance apply to the
loss on the same basis, whether primary, excess or
contingent, Zurich shall not be liable under this policy for
a greater proportion of the loss than stated in the
applicable contribution provision below:
(A) Contribution by Equal Shares. If all of such other valid
and collectible insurance provides for contribution by equal
shares, Zurich shall not be liable for a greater proportion
of such loss than would be payable if each insurer
contributes an equal share until the share of each insurer
equals the lowest applicable limit of liability under any one
policy or the full amount of the loss is paid.
Stipulation of Fact Ex. 2 at 20, ECF No. 79-2.
July 1, 1980, and continuing for the next seventeen
consecutive years, A-B was insured by INA under Policy No.
ISG 1065 for bodily injury liability. Starting July 1, 1989,
the INA policy included an asbestos exclusion, which the
parties stipulate bars liability for INA past that date. Each
INA policy is subject to a deductible endorsement. From July
1, 1980, to July 1, 1986, the deductible amount was $250,
000. Thereafter and for the subsequent three years at issue,
the deductible amount was $1 million. The INA policy's
personal injury coverage includes an exclusion for:
bodily injury or property damage arising out of the
discharge, dispersal, release or escape of smoke, vapors,
soot, fumes, acids, alkalis, toxic chemicals, liquids or
gases, waste materials or other irritants, contaminants or
pollutants into or upon ...