United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
2014, plaintiff Zurich American Insurance Company (ZAIC)
settled and paid an asbestos claim on behalf of its insured
Anheuser-Busch, LLC (A-B). During the period of alleged
asbestos exposure at issue in the claim, A-B was
consecutively insured by ZAIC and Insurance Company of North
America (INA). ZAIC brought this suit for equitable
contribution, subrogation, and unjust enrichment against INA.
After INA asserted a defense of failure to include all
necessary parties, ZAIC added A-B as a defendant. A-B was
dismissed from this lawsuit on May 8, 2018. Before me now are
cross-motions for summary judgment brought by ZAIC and INA on
the issue of whether INA owes ZAIC any money for the
underlying settlement. Because I conclude that the pollution
exclusion in INA's policy bars coverage of the underlying
claims as a matter of law, I will grant summary judgment in
favor of INA on all claims asserted against it. My analysis
Governing Summary Judgment
determining whether to grant summary judgment, the court
views the facts - and any inferences from those facts - in
the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The movant bears the
burden of establishing that (1) it is entitled to judgment as
a matter of law and (2) there are no genuine issues of
material fact. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Once the movant has
met this burden, however, the nonmoving party may not rest on
the allegations in its pleadings but must, by affidavit and
other evidence, set forth specific facts showing that a
genuine issue of material fact exists. Fed.R.Civ.P. 56(c)(1),
(e). Where a factual record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial. Matsushita, 475 U.S.
filing of cross motions for summary judgment does not
necessarily indicate that there is no dispute as to a
material fact, or have the effect of submitting the cause to
a plenary determination on the merits.” Wermager v.
Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983).
Instead, each summary judgment motion must be evaluated
separately on its own merits to determine whether a genuine
issue of material fact exists and whether the movant is
entitled to judgment as a matter of law. Husinga v.
Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D.
the foregoing standards, I find the following undisputed,
material facts relevant to the remaining issues in the case.
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. The lawsuit did not involve any asbestos
product manufactured by A-B at the brewery. Instead,
decedent's husband allegedly carried asbestos and
asbestos dust from the A-B brewery where he worked and then
the decedent “inhaled and ingested” these
asbestos dust particles and fibers when she came into contact
with his person and while laundering his work clothes. The
complaint alleged that A-B was aware of the need for proper
hygiene procedures to insure that asbestos was not carried
home on the employees' person and work clothes and was
further aware of the dangers of asbestos to all those
foreseeably exposed to asbestos, including family and
household members of A-B employees. The period of alleged
exposure occurred between July 30, 1971 (the date of their
marriage), and July 31, 1996 (the date of the employee
husband's retirement from A-B).
conducted in the Cotter case established that the
decedent's husband came into frequent contact with
asbestos while performing maintenance on the brewery's
instrumentation and in tunnels beneath the brewery. Asbestos
was floating around in the air and on the floor in piles of
dust. A-B mechanics, including the decedent's husband,
were not provided uniforms or laundry service and instead
worked in their regular clothes, which they wore to and from
work. They would get asbestos all over their clothing and
could see the asbestos dust in the air. Consequently, they
took dirt, asbestos dust, and grease with them when they left
tendered defense of the Cotter suit to insurer ZAIC,
who agreed to provide A-B with a defense subject to a
reservation of rights to seek contribution for the periods
insured after 1980. 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. As stipulated
by the parties, endorsements to these policies have excess
coverage limits between fifteen and twenty-five million
dollars. ECF No. 79 ¶ 7. These policies contain the
(1) Coverage for “all sums”:
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 insurance applies. ECF No. 79-2 at 4; ECF No. 79-3 at 4
(2) Limiting language:
This insurance applies only to bodily injury or property
damage which occurs during the policy period.
ECF No. 79-2 at 12; ECF No. 79-3 at 4.
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.
ECF No. 79-2 at 20.
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. Similar to the ZAIC
policies, the INA policy includes:
(1) Coverage for “all sums”:
The Company will pay on behalf of the insured all
sums which the insured shall become legally obligated to
pay as damages because of personal injury, property damage or
advertising offense to which this ...