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The three kinds of slow-developing injuries that tended to be covered under the broader "occurrence" language of the 1966 and 1983 CGL forms were (1) asbestos-related; (2) drugs taken by pregnant women with long-term effects on children; and (3) harm to the environment. None of these would have been an "accident" under the old forms (except something like a tanker running aground and dumping its contents into the sea), but they were occurrences under the new forms. But the question arose, under the language of the 1983 (or earlier) policy, when did coverage kick in? What is it, then, that "triggered" coverage?

The Policy Language

We have to link two or three sentences of the policy language to make the issue more precise. Section I Coverages, 1.a. Insuring Agreement provides that "We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." Then, in 1.b it provides "The 'bodily injury' or 'property damage' occurs during the policy period." When we then turn to the defintions in Section V, we have this definition for bodily injury--"'bodily injury' means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time."

Putting these three items together, we observe that the injury may be something sudden, like an accident, or may be a sickness or disease, which is often more gradual. The policy covers these things that "occur" during the policy period. But what does the word "occur" mean? And how does it apply to circumstances wher ethe injury or damage involves long exposures? There is no clarification of this in the policy, and the drafters decided to leave this to the courts. Of course, the courts have waded into the issue with alacrity. Four theories on what this word "occur" means have developed. They can be referred to as the four theories of "triggers" of coverage--(1) the manifestation theory; (2) the exposure rule; (3) the "injury in fact" requirement; and (4) the multiple or continuous target theory. A word about each.

Triggering Coverage

1. Manifestation Theory. Under this approach to the word "occur," a court would say that a compensable injury only occurs when there has been a "manifestation" during the policy period. The leading case is Eagle-Picher (682 F2d 12 (1st Cir 1982)). The court emphasized, in this asbestos-related case, that an exposure (not covered) was different from an inury (covered). Crucial for its determination was the conclusion that a "manifestation" was something that impaired a person's sense of well-being or when a person experienced symptoms of the disease. From the perspective of the doctor, this would be when significant scarring of the lungs was visible. It would have to be a time in which the onset of the disease was inevitable. This is the most "pro insurer" approach, and it stresses the "obviousness" nature of the disease as the trigger of coverage. It allowed insurers sometimes to get out of coverage by cancelling policies where it knew it would have claims if it kept the asbestos companies as clients.

2. The Exposure Rule. This approach is at the opposite end of the spectrum of the manifestation theory. It would hold that any "exposure" to damage that causes a substantial injury or disease triggers the coverage. The INA case (633 F2d 1212 (6th Cir 1980)) is the important first case. For an asbestos-related case, this would mean that the trigger was either the first inhalation of the asbestos fumes or the inhalation combined with continuous injury. The court left an ambiguity here. For an environmental pollution case, the trigger under the exposure rule would be either the burial (release) of the contaminant or the time when this contaminant was discovered, which would be some time before any damage was calculated.

3. Injury-in-Fact. The third theory was developed most fully in the case assigned for class, American Home Products (p.419; 565 F Supp 1485 (SD NY, 1983)). The district court rejected both the exposure and manifestation theories and ruled: "an occurrence of 'personal injury, sickness, or disease' is read to mean any point in time at which a finder of fact determines tha tthe effects of exposure to a drug actually resulted in a diagnosable and compensable injury." This might be upon exposure, a point in time after exposure but before manifestation or manifestation. Significant for the court is that this is often a "backwards-looking" process. Only after discovery and expert testimony can one say with as much medical certainty as possible when the injury occurred. The appellate court reversed the district court only on the two words "diagnosable" and "comensable." The appellate court held: "To paraphrase the district court's analysis rejecting the manifestation theory, 'a real but undiscovered injury, proved in retrospect to have existed at the relevant time, would establish coverage, irrespective of the time injury became [diagnosable]." (748 F2d at 765-66).

4. Multi- or Continuous Trigger Theory. This was only really considered in one case, the Keene case (667 F2d 1034 (DC Cir 1981)), and was an asbestos case. The court said the policy did not clearly point to either manifestation or exposure as the triggers of coverage. Therefore, the court concluded that injury, under the policy, meant "any part of the single injurious process that asbestos-related diseases entail." This may include inhalation, the early development of the disease, and manifestation of the disease.

I think I need another essay to talk about the allocation issue.