Certain Underwriters at Lloyd's etc. v. Conagra Grocery etc. ( 2022 )

Filed 4/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CERTAIN UNDERWRITERS AT
LLOYD’S LONDON et al.,
Plaintiffs and Respondents, A160548
v. (San Francisco County
CONAGRA GROCERY PRODUCTS Super. Ct. No. CGC-14-536731)
COMPANY et al.,
Defendants and Appellants.
This insurance coverage case arises from an underlying representative
public nuisance action in which a number of former manufacturers of lead
paint were ordered to pay $1.15 billion into a fund to be used to abate the
public nuisance created by interior residential lead paint in 10 California
jurisdictions. The question presented is whether the trial court correctly
determined that ConAgra Grocery Products Company (ConAgra), as
successor to paint manufacturer W.P. Fuller & Co. (Fuller), was not entitled
to indemnity from its insurers for its payment to the abatement fund due to
Insurance Code section 533, which provides that insurers are not liable for
losses caused by a willful act of the insured.
BACKGROUND
This case began in 2000, when the County of Santa Clara, subsequently
joined by multiple other counties and governmental entities, filed a class
action complaint against a number of lead paint manufacturers. (County of
1
Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 299 (Santa
Clara I).) After several amendments of the complaint, the trial court
sustained demurrers to causes of action for public nuisance, one a claim by
the class plaintiffs seeking damages and the other a representative action on
behalf of the People of the State of California seeking abatement. (Id. at
pp. 299–301.) The court later granted the defendants’ motion for summary
judgment on other causes of action and entered a judgment of dismissal. (Id.
at pp. 301–303.)
On appeal, the Sixth District Court of Appeal held the trial court erred
in sustaining the demurrer to the cause of action for representative public
nuisance and granting summary judgment on three others. (Santa Clara I,
supra, 137 Cal.App.4th at p. 333.) As to the cause of action for representative
public nuisance, the court explained that liability was “premised on
defendants’ promotion of lead paint for interior use with knowledge of the
hazard that such use would create.” (Id. at p. 309.) “Because this type of
nuisance action does not seek damages but rather abatement, a plaintiff may
obtain relief before the hazard causes any physical injury or physical damage
to property.” (Ibid.)
On remand, on March 16, 2011, the plaintiffs1 filed a fourth amended
complaint alleging a single cause of action for representative public nuisance
on behalf of the People. The complaint alleged that the presence of lead in
paint and coatings in and around homes and buildings in California has
created a massive public health crisis and that defendants created and/or
assisted in the creation of this nuisance by, among other things, promoting
1The fourth amended complaint was filed by the People, acting by and
through the County Counsel of Santa Clara, Alameda, Los Angeles,
Monterey, San Mateo, Solano, and Ventura counties and the City Attorneys
of Oakland, San Diego, and San Francisco.
2
lead for interior and exterior use despite having known for nearly a century
that such use of lead was hazardous to human beings. Following a trial in
2013, the trial court found ConAgra and two other companies (NL Industries,
Inc. and the Sherwin-Williams Company) jointly and severally liable and
ordered establishment of a fund dedicated to abatement of lead paint in pre-
1978 homes in the 10 jurisdictions represented in the case.2 The court’s
lengthy and detailed statement of decision (113 pages) and proposed
judgment were filed on January 7, 2014. On March 26, 2014, the trial court
issued an amended statement of decision (People v. Atlantic Richfield Co.
(Super. Ct., Santa Clara County, 2014, No. 100CV78865) 2014 WL 1385823[amended statement of dec.]) and amended judgment (People v. Atlantic
Richfield Co. (Super. Ct., Santa Clara County, 2014, No. 100CV78865) 2014
WL 1385821 [amended judg.]) requiring the three companies to pay $1.15
billion into the abatement fund.
ConAgra and the other two companies appealed. The Sixth District
Court of Appeal rejected most of the challenges to the judgment, but reversed
for recalculation of the abatement fund to exclude the cost of remediating
lead hazards in post-1950 housing, as there was no evidence the companies
affirmatively promoted lead paint for interior use after 1950 and insufficient
evidence of a causal connection between the companies’ earlier promotions
and interior lead paint in homes built after 1950. (People v. ConAgra Grocery
Products Co. (2017) 17 Cal.App.5th 51 (Santa Clara II).) The California
Supreme Court denied review and the United States Supreme Court denied
certiorari. (Ibid., review den. Feb. 14, 2018, cert. denied (2018) ___ U.S. ___,
139 S.Ct. 377.)
2The United States Consumer Product Safety Commission prohibited
the use of lead-based paint in homes in 1978. (16 C.F.R., § 1303.4.)
3
On remand, the trial court recalculated the amount to be paid into the
abatement fund to $409 million. After an offset for payment by another lead
paint manufacturer no longer in the case, the total amount to be paid into the
fund was reduced to $401,122,482.
On July 10, 2019, the parties executed a settlement agreement under
which ConAgra, NL Industries, Inc. and Sherwin-Williams Company each
agreed to pay $101,666,666 in full satisfaction of any and all claims.
Meanwhile, just after the trial court filed its initial statement of
decision in January 2014, Certain Underwriters at Lloyd’s London and other
insurers had filed a first amended complaint for declaratory relief, seeking a
determination that they had no coverage obligation to ConAgra with respect
to or arising from this case under policies issued to ConAgra and/or its
predecessor companies. The declaratory relief action was stayed on April 2,
2014, and the stay was lifted as of March 13, 2019. On March 22, 2019,
ConAgra filed its answer, seeking dismissal of the first amended complaint
and judgment in ConAgra’s favor, and a cross-complaint for declaratory
relief, seeking a determination that it was entitled to coverage under
specified primary and excess liability insurance policies.3
On July 19, 2019, the insurers moved for summary judgment or, in the
alternative, summary adjudication. The insurers argued they had no duty to
provide coverage for four reasons: (1) section 533 prohibits coverage for
ConAgra’s intentional promotion of lead paint or interior; residential use with
3 Exhibit A to the cross-complaint listed insurance policies issued to
ConAgra and its predecessors Hunt Foods and Industries, Norton Simon,
Inc., and Esmark, Inc. The policies themselves (including policies issued to
Beatrice Companies, Inc., and BCI Holdings Corporation), and a joint
summary of their language, were submitted to the court in connection with
the motions for summary judgment and summary adjudication as “examples
of language from ConAgra’s insurance policies.”
4
actual knowledge of the health hazard that would result; (2) there was no
“occurrence” within the meaning of the policies because the harm was
expected or intended and not accidental; (3) the abatement remedy was not
liability for “damages” or an “expense” under the policies; and/or (4)
ConAgra’s liability was not “because of” or “on account of” “bodily injury,”
“property damage” and/or “personal injury” under the policies. ConAgra
moved for summary adjudication, arguing each of the issues raised in the
insurers’ motion should be resolved in favor of ConAgra.
In connection with this motion, ConAgra submitted the parties’ “Joint
Stipulation of Undisputed Evidence,” which essentially summarized the
chronology of the underlying litigation, and “Joint Stipulated Summary of
Policies and Policy Language,” which included the policies themselves as
exhibits.
The trial court granted summary judgment in favor of the insurers,
holding that Insurance Code section 5334 precluded coverage as a matter of
law because it “ ‘precludes indemnification for liability arising from
deliberate conduct that the insured expected or intended to cause damage’ ”;
“ ‘willful act of insured’ includes an act ‘intentionally performed with
knowledge that damage is highly probable” (quoting Shell Oil Co. v.
Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 742–743 (Shell Oil));
and courts in the underlying litigation “clearly and repeatedly found” that
“Fuller intentionally promoted lead paint with knowledge that damage to
children was at least highly probable.” The court specifically rejected
ConAgra’s arguments that it was “only Fuller’s ‘purported’ successor”; that
ConAgra, as successor, could be “ ‘insulated from its predecessor’s
4Further statutory references will be to the Insurance Code except as
otherwise specified.
5
knowledge’ ”; that the scienter findings in the underlying litigation were
insufficient to meet the willfulness standard in section 533; that Fuller’s
conduct was merely reckless; that the insurers were required to, and did not,
prove Fuller’s senior managers knew the hazards of lead paint; and that
Santa Clara II erred in requiring remediation of lead paint applied after 1950
in homes built before 1950.
Judgment was entered on June 2, 2020, and ConAgra filed a timely
notice of appeal.5
5 Three trial courts in other jurisdictions have ruled in insurance
coverage cases involving other defendants in the underlying action. Two
granted summary judgment for the insurers, one because the cause of action
for representative public nuisance was not for property damage within the
meaning of the insurance policies (Millennium Holdings LLC v. Lumbermens’
Mut. Cas. Co. (Ohio Com. Pl. Aug. 8, 2013, 00-CV-411388) 2013 WL
12344184) and the other because Santa Clara II’s conclusion that the remedy
of abatement did not constitute damages compelled the trial court to find
there were no recoverable damages under the policies (Sherwin-Williams Co.
v. Certain Underwriters at Lloyd’s London (Ohio Com. Pl., Dec. 3, 2020, CV-
06-585786 (Sherwin-Williams)). The third trial court denied summary
judgment. (Certain Underwriters at Lloyd’s London v. NL Industries, Inc.
(N.Y. Supreme Court, Dec. 29, 2020, 650103/2014 (NL).)
Millennium did not address issues relevant to our analysis of the
application of section 533. Sherwin-Williams and NL both rejected
arguments that insurance coverage was unavailable because the harm for
which the insured was held liable was expected or intended. Both courts
viewed the underlying litigation as having established that the defendants
had actual knowledge of the dangers associated with lead paint but not that
they expected or intended to cause the harm. Sherwin-Williams declined to
view the nuisance found in the underlying action as expected or intended,
seeing it as analogous to intentionally advertising or placing into commerce a
product that results in injury without having intended the injury to occur,
and expressly held the defendant was not “substantially certain” its
promotions would result in injury or property damage. NL similarly
emphasized that New York law distinguishes between “knowledge of the risk
of hazardous consequences of one’s actions, and the intention to cause harm,”
6
DISCUSSION
A motion for summary judgment “shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.) Here, as the moving parties, the insurers bore the burden of
demonstrating, based on undisputed facts, that coverage could not be
established. (See Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh,
PA (2016) 6 Cal.App.5th 443, 458.)
Section 533 provides that “[a]n insurer is not liable for a loss caused by
the wilful act of the insured; but he is not exonerated by the negligence of the
insured, or of the insured’s agents or others.” “ ‘Section 533 is “an implied
exclusionary clause which by statute is to be read into all insurance policies.”
[Citations.]’ ” (Shell Oil, supra, 12 Cal.App.4th at p. 749, quoting J.C. Penney
Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1019 (Penney).) The statute
reflects a fundamental public policy of denying coverage for willful wrongs
and discouraging willful torts. (Penney, at pp. 1019–1021, fn. 8 and
accompanying text.) “ ‘The public policy against insurance for losses
resulting from such [willful wrongful] acts is usually justified by the
citing one case that held selling asbestos with knowledge of its risk of harm
was not equivalent to intending to cause harm, and another case that held
intentional operation of a cement plant did not establish the defendant
intended to cause damage to surrounding landowners or was substantially
certain damage would result.
The insurers’ briefs represent that Sherwin-Williams and NL are
currently on appeal. NL has since been affirmed by the Appellate Division of
the New York Supreme Court. (Certain Underwriters at Lloyd’s London v.
NL Industries, Inc. (N.Y.App. Div., Mar. 24, 2022, 650103/14) 2022 N.Y.App.
Div. LEXIS 1941.)
7
assumption that such acts would be encouraged, or at least not dissuaded, if
insurance were available to shift the financial burden of the loss from the
wrongdoer to the insurer. . . .’ ” (Downey Venture v. LMI Ins. Co. (1998)
66 Cal.App.4th 478, 514 (Downey), quoting American States Ins. Co. v. Borbor
(9th Cir. 1987) 826 F.2d 888, 895 (Borbor); PPG Industries, Inc. v.
Transamerica Ins. Co. (1999) 20 Cal.4th 310, 316, fn. 1, 317–318.) “As a
statutory exclusion, section 533 is not subject to the rule of strict construction
against an insurer; instead, we construe it according to the Legislature’s
intent, for which we refer first to the words of the statute. ([Penney], at
p. 1020, fn. 9 and accompanying text.)” (Shell Oil, at p. 739.)
A “wilful act” under section 533 means “an act deliberately done for the
express purpose of causing damage or intentionally performed with
knowledge that damage is highly probable or substantially certain to result.”
(Shell Oil, supra, 12 Cal.App.4th at p. 742; Downey, supra, 66 Cal.App.4th at
p. 500.) “Conduct for which the law imposes liability, and which is expected
or intended to result in damage, must be considered wrongful and willful.
Therefore, section 533 precludes indemnification for liability arising from
deliberate conduct that the insured expected or intended to cause damage.”
(Shell Oil, at p. 743; Downey, at p. 501.) “The appropriate test for ‘expected’
damage is whether the insured knew or believed its conduct was
substantially certain or highly likely to result in that kind of damage.” (Shell
Oil, at p. 748.) On the other hand, “no form of negligence amounting to less
than section 533’s ‘wilful act’ precludes coverage. (Penney, supra, [52 Cal.3d]
at p. 1021.)” (Shell Oil, at p. 740.) Thus, “[a]cts of gross negligence or
recklessness are not wilful acts within the meaning of section 533.” (Downey,
at p. 500.)
8
An insurer’s duty to indemnify “is only determined when the insured’s
underlying liability is established.” (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 287.) “The duty to indemnify on a
particular claim is determined by the actual basis of liability imposed on the
insured.” (Armstrong World Industries, Inc. v. Aetna Casualty & Surety
Co. (1996) 45 Cal.App.4th 1, 108 (Armstrong).)
As we have said, ConAgra was found liable in the underlying case as
corporate successor to Fuller; ConAgra itself played no role in the lead paint
business. ConAgra’s arguments on appeal take two tacks, one attempting to
distance itself from Fuller’s conduct and knowledge and the other attempting
to avoid application of section 533 even assuming Fuller’s conduct and
knowledge are the determinative factors.
I.
ConAgra argues section 533 does not apply because the statute
precludes coverage for losses due to a willful act of “the insured,” ConAgra is
“the insured,” and ConAgra (as opposed to Fuller) committed no wrongful act.
It maintains applying section 533 to bar insurance coverage for its losses as
successor to Fuller does not serve the policy purposes of the statute because,
since Fuller committed the willful act, requiring ConAgra to bear the loss
cannot be justified as precluding a party from benefitting from his or her own
wrong or preventing intentional misconduct. ConAgra maintains that no
authority supports applying section 533 to liability based on corporate
succession for losses arising decades after the wrongful conduct of the
predecessor.
ConAgra was held liable as Fuller’s corporate successor through a
series of mergers and consolidations: Santa Clara II upheld the trial court’s
finding that “Fuller’s liabilities flowed from Hunt to Norton Simon and
9
through it to ConAgra” (Santa Clara II, supra, 17 Cal.App.5th at p. 162), and
that determination is final and binding. Such a merger results in the
successor corporation assuming the liabilities of the predecessor. (Certain
Underwriters at Lloyd’s of London v. Pacific Southwest Airlines (C.D. Cal.
1992) 786 F.Supp. 867, 870–871 (Pacific Southwest); Moe v. Transamerica
Title Ins. Co. (1971) 21 Cal.App.3d 289, 304.)
As explained in Pacific Southwest, application of section 533 is
appropriate in this situation because the successor in a merger is “on notice
that it [is] purchasing [the predecessor] subject to the liabilities of [that
entity].” (Pacific Southwest, supra, 786 F.Supp. at p. 871.) “[T]he successor
entity . . . is responsible as the wrongdoer, in the sense that the successor
knew that the predecessor may have committed some wrongdoing and
thereby agreed to assume any liability therefore.” (Ibid.)
ConAgra’s argument against application of section 533 relies on cases
holding that section 533 does not apply where the insured is found liable on a
theory of vicarious liability. (E.g., Nuffer v. Insurance Co. of North America
(1965) 236 Cal.App.2d 349, 355–356 [rules governing liability of principal for
wrongful act by agent do not control insurer’s liability for loss sustained by
principal due to act of agent]; Borbor, supra, 826 F.2d at p. 890 [insurer of
husband and wife operating nursery school not liable for coverage of
husband, who intentionally molested children, but wife entitled to coverage
despite being vicariously liable for husband’s acts under partnership
principles]; Downey, supra, 66 Cal.App.4th at p. 512 [§ 533 does not bar
coverage for insured held vicariously liable for another person’s act of
malicious prosecution]; Century-National Ins. Co. v. Garcia (2011) 51 Cal.4th
564, 566, 573 [innocent insured parents entitled to coverage under fire
insurance policy despite intentional arson by co-insured adult son; section
10
533 does not bar coverage for innocent insured for loss caused by willful act of
a coinsured].) “The public policy underlying section 533—to deny coverage
for and thereby discourage commission of wilful wrongs—is not implicated
when an insurer indemnifies an ‘innocent’ insured held liable for the willful
wrong of another person[.]” (Downey, at p. 514.)
ConAgra contends the same rationale applies to its situation. Arguing
that the policy of deterring willful misconduct “is not implicated unless the
insured was personally at fault,” ConAgra maintains allowing it to recover
from insurance would not encourage misconduct because it had no role in or
knowledge of Fuller’s conduct. Pacific Southwest specifically rejected such an
attempt to analogize the position of a corporate successor, for purposes of
section 533, to that of an employer held vicariously liable for its employee’s
willful act. Pacific Southwest involved a punitive damages award due to
intentional tortious conduct by the predecessor corporation. (Pacific
Southwest, supra, 786 F.Supp. at pp. 869–870.) Section 533 normally
precludes insurance coverage for punitive damages, but such coverage is not
precluded in vicarious liability cases where an employer is required to pay
punitive damages as a result of actions by an employee. (Pacific Shouthwest,
at p. 869.) “Section 533 prohibits indemnification of punitive and intentional
tort damages in part because wrongdoing would not be deterred by damage
awards if a party could simply indemnify itself against such awards. In the
case of an employer, the employer has committed no wrong. Therefore, the
employer is undeterrable and allowing indemnification does not violate the
policy behind Section 533.” (Ibid.)
Rejecting the successor corporation’s argument that it was similarly
undeterrable because it committed no wrong, Pacific Southwest held that
since the merger resulted in the successor corporation assuming the
11
liabilities of the predecessor, the successor was “responsible as the
wrongdoer.” (Pacific Southwest, supra, 786 F.Supp. at pp. 869, 871.) “In
such cases, successor liability is not the functional equivalent of vicarious
liability and Section 533 applies.” (Id. at pp. 869, 871.)
ConAgra reads Pacific Southwest as holding “successor liability is not
the functional equivalent of vicarious liability” only in cases where “the
successor knew that the predecessor may have committed some wrongdoing
and thereby agreed to assume any liability therefore.” (Pacific Southwest,
supra, 786 F.Supp. at p. 871.) By contrast, ConAgra argues, here there is no
evidence it had knowledge of Fuller’s lead paint promotions “when the
acquisition occurred.”
Pacific Southwest involved an award of punitive damages in favor of an
employee of Pacific Southwest Airlines (PSA) on a claim of intentional
infliction of emotional distress during his employment by PSA. US Airways
(USAir) had acquired PSA subsequent to the tortious conduct and was held
liable in the employee’s action. (Pacific Southwest, supra, 786 F.Supp. at
pp. 868, 873.) The opinion does not actually say USAir knew of PSA’s
conduct toward the employee at the time of the merger, as ConAgra suggests;
the facts provided in the opinion indicate the tortious conduct preceded the
merger and the lawsuit named both PSA and USAir as defendants, but do
not include the date of the merger or details of the companies’ negotiations.
As to successor liability, Pacific Southwest explained, “[t]he form of the
merger . . . demonstrates that USAir took subject to the liabilities of PSA and
thus the vicarious liability analogy does not apply. PSA was purchased by
USAir through a large-scale purchase of PSA’s stock. USAir, itself, refers to
this purchase as a merger and no evidence has been offered to the contrary.
As a result, the Court can properly hold USAir liable for punitive damages
12
because USAir was aware of the possibility of such liability. This Court
concludes that the form of the merger did in fact put USAir on notice that it
was purchasing PSA subject to PSA’s debts and liabilities. In such cases,
successor liability is not the functional equivalent of vicarious liability and
Section 533 applies.” (Id. at p. 871.)
Contrary to ConAgra’s reading, we do not understand Pacific
Southwest to have held that a corporate successor’s liability for willful
conduct by its predecessor turns on a factual determination whether the
successor knew at the time of the merger of specific liability or potential
liability on the part of the predecessor. Pacific Southwest held that by virtue
of the merger, USAir was on notice that if liability was established against
PSA, USAir would be liable as PSA’s successor. That is the situation here:
As successor to Fuller through a series of mergers, ConAgra became liable for
the public nuisance created by Fuller’s conduct and, therefore, stands in
Fuller’s shoes for purposes of section 533.6
6 The insurance policy under which USAir sought indemnity in Pacific
Southwest had been issued to PSA. (Pacific Southwest, supra, 786 F.Supp. at
p. 869; see also, PPG Industries, Inc. v. Transamerica Ins. Co., supra,
20 Cal.4th at p. 316, fn. 1 [“[successor] could not accept the benefits of its
acquisition of [predecessor] by bringing this action to recover under
[predecessor’s] insurance policy . . . without also accepting the liabilities”].)
In the present case, some of the insurance policies ConAgra relies upon were
issued directly to ConAgra as the insured while others were issued to various
predecessors (Hunt Foods and Industries, Norton Simon, Inc., Esmark, Inc.,
Beatrice Companies, Inc., BCI Holdings). (See fn. 2, ante.) The parties do not
suggest there is any distinction between these policies meaningful to the
application of section 533 in this case.
13
II.
A.
ConAgra contends that even if the focus is on Fuller’s conduct, section
533 is inapplicable because the loss for which ConAgra seeks indemnity was
too attenuated from Fuller’s promotions for section 533 to apply. The statute,
in ConAgra’s view, requires both a “direct causal relationship” and a “close
temporal connection” between the willful act and the loss for which insurance
coverage is sought; according to ConAgra, every case in which section 533 has
been found to apply involved losses resulting within “seconds, days, or weeks
of the insured’s act.” ConAgra maintains the underlying findings do not
satisfy the requirements of section 533 because Santa Clara II held only a
few of Fuller’s promotions were actionable (i.e., willful acts for purposes of
section 533), the underlying courts did not attempt to trace the harm back to
the actionable promotions, and those promotions “could not possibly have
caused all of the loss for which ConAgra is now liable.” As ConAgra sees it,
section 533 could apply only if there was proof Fuller’s promotions resulted in
the harm in each individual home for which ConAgra was required to fund
inspection and/or abatement.
ConAgra relies upon cases holding section 533 does not bar coverage for
losses resulting from acts that are separable from the willful act for which
insurance is precluded. In Horace Mann Insurance Co. v. Barbara B. (1993)
4 Cal.4th 1076, 1078–1079, a 13-year-old student sued her teacher for
injuries resulting from sexual molestation (as to which the teacher pleaded
nolo contendere) and other harassing conduct. The insurer maintained it had
no duty to defend or indemnify the teacher pursuant to section 533 and
prevailed on a motion for summary judgment. (Id. at p. 1080.) Reversing,
Horace Mann found that although section 533 precluded coverage for
14
damages arising from the sexual molestation, there were factual disputes
regarding the teacher’s alleged conduct apart from the molestation and,
therefore, potential coverage. (Id. at pp. 1081–1083.) “The record is devoid of
evidence which establishes the chronology or sequence of events comprising
the alleged misconduct or that these actions were integral to the molestation.
For instance, the record is devoid of evidence demonstrating that Lee’s acts of
public embarrassment of Barbara occurred in such close temporal and spatial
proximity to the molestation as to compel the conclusion that they are
inseparable from it for purposes of determining whether [the insurer] owed a
duty to defend Lee.” (Id. at pp. 1083–1084.) State Farm Fire & Casualty Co.
v. Century Indemnity Co. (1997) 59 Cal.App.4th 648, 665, the other case
ConAgra cites, did not discuss section 533 but, applying the reasoning of
Horace Mann, held an insurer had a duty to defend claims against the
insured for alleged nonsexual conduct that was “temporally and spatially
separate” from alleged sexual conduct the insurance policy did not cover.
These cases held that where an insured is liable for losses due to
multiple separate acts, some willful and others not, section 533 precludes
insurance coverage for losses resulting from the willful acts but allows
coverage for the others. The cases considered the temporal proximity of the
acts in determining whether the non-willful act is in fact separate from the
willful one, or must be considered integral to the willful act so as to make
section 533 applicable to both. That is, these cases considered temporal
proximity between separate acts alleged to have resulted in loss, not
temporal proximity between a given act and the loss resulting from it.
ConAgra does not explain how this analysis supports its argument that
section 533 applies only if the harm resulting from a willful act of the insured
occurs close in time to the act. As the insurers point out, cases concerning
15
insurance coverage for losses associated with environmental contamination
demonstrate section 533 can apply, if the factual predicate is met, where the
acts causing damage occurred many years before the loss for which the
insured seeks indemnity. Shell Oil, for example, upheld a determination that
the insured was not entitled to coverage when it was held liable for soil and
groundwater contamination decades after the conduct that caused the
contamination.7 (See AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807,
837, fn. 16; FMC Corp. v. Plaisted & Companies (1998) 61 Cal.App.4th 1132,
1179–1180 (FMC), disapproved on other grounds in State of California v.
Continental Ins. Co. (2012) 55 Cal.4th 186, 201.)8
7 Shell Oil involved insurance claims for remediation costs for 30 years
of soil and groundwater pollution. (Shell Oil, supra, 12 Cal.App.4th at
p. 784.) The court upheld as consistent with section 533 a jury instruction
stating a liability policy could cover property damage only if the insured
neither expected nor intended the damage, but found erroneous an
instruction defining “expect” by an objective standard that deviated from
section 533 by testing what the insured should have known rather than what
it actually knew or believed. (Shell Oil, at pp. 742–743, 747–748.) As to one
particular source of pollution, however, Shell Oil found this error was not
prejudicial because, since the evidence showed that “[b]y 1965, Shell expected
that the wastes it dumped in Section 36 would eventually result in damage to
others’ property,” there was no reasonable probability the jury, if properly
instructed to use a subjective standard for “expect,” would have found Shell
had coverage for pollution from this source. (Id. at p. 777.)
8 FMC involved remediation costs for which the insured became liable
under environmental statutes many years after the acts that caused the
pollution. Applying the definition of “expected” established in Shell Oil,
supra, 12 Cal.App.4th at page 748, the trial court had rejected the insured’s
argument that its insurance policies provided coverage for unexpected
damage to third party property that exceeded or differed from property
damage it was found to have expected. Approving the trial court’s view, the
FMC court explained: “If (as the policy language and the trial court’s
instruction required to avoid coverage) any of the third party property
damage resulting from FMC’s knowing release of pollutants was not
16
ConAgra attempts to distinguish the environmental pollution cases by
arguing they involved gradual damage that was “inevitable without
intervening actions from any third parties.” Here, ConAgra maintains, not
only was ConAgra held liable for a public nuisance decades after Fuller’s
promotions of lead paint, those promotions could have resulted in current
lead hazards “only if (1) people were influenced by Fuller promotions (above
all other lead paint promotions), (2) those so influenced placed lead paint
inside of homes, (3) that paint gradually deteriorated, and (4) the paint was
not properly maintained or abated in the ensuing decades.”
Santa Clara II, supra, 17 Cal.App.5th at page 104, conclusively rejected
this sort of argument in the context of ConAgra’s liability. “The connection
between the long-ago promotions and the current presence of lead paint was
not particularly attenuated. Those who were influenced by the promotions to
use lead paint on residential interiors in the 10 jurisdictions were the single
conduit between defendants’ actions and the current hazard. Under these
circumstances, the trial court could have reasonably concluded that
defendants’ promotions, which were a substantial factor in creating the
current hazard, were not too remote to be considered a legal cause of the
unexpected from FMC’s perspective, then denial of coverage for all such
property damage is entirely consistent with a policy of dissuading insureds
from releasing pollutants which they subjectively expect to cause third party
property damage.” (FMC, supra, 61 Cal.App.4th at pp. 1179–1180.)
AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at page 837, an earlier
decision in the same litigation, held that “reimbursement of environmental
response costs is ‘damages’ under the terms of the insurance policies at issue
here, and that public policy does not prevent coverage.” In a footnote, the
court added that section 533 “would apply to cleanup costs if the requisite
factual predicate (i.e., that the hazardous waste disposal necessitating
cleanup was ‘willful’) were to be proved.” (AIU, at p. 837, fn. 16.)
17
current hazard even if the actions of others in response to those promotions
and the passive neglect of owners also played a causal role.” (Ibid.)
ConAgra argues the substantial factor causation standard used to
establish liability does not necessarily apply to section 533, pointing to
Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co. (2018)
5 Cal.5th 216 (Ledesma), as an example. The issue in that case was whether
an employer’s general liability insurance policy provided coverage for a suit
alleging negligent hiring, retention, and supervision of an employee who
sexually abused the minor plaintiff. (Id. at p. 220.) As ConAgra describes it,
Ledesma held that an employer’s “negligent hiring, retention, or supervision
may be a substantial factor in a sexual molestation perpetrated by an
employee, depending on the facts presented” (id. at p. 223), “but still refused
to apply Section 533, because all the loss at issue did not result from willful
acts of the insured.”
But this is not what Ledesma held: Ledesma was not confronted with a
question regarding the nature or extent of the loss but rather with whether
an injury caused by an employee’s intentional act might be covered, despite
section 533, when alleged as the basis for a claim of negligent hiring
retention and supervision against the employer. Ledesma emphasized that
the claim against the employer focused on the employer’s conduct, not that of
the employee. (Ledesma, supra, 5 Cal.5th at p. 222.) While the employee’s
sexual misconduct was undisputedly “ ‘a wilful act’ beyond the scope of
insurance coverage under Insurance Code section 533,” the employer was
alleged to have committed an independent tort and the employee’s
“intentional conduct [did] not preclude potential coverage for” the employer’s
allegedly negligent conduct. (Ibid.)
18
Rather than supporting ConAgra’s argument that the substantial
factor test for causation does not apply to section 533, Ledesma went on to
explain that “tort principles govern the question of causation” for purposes of
liability insurance coverage and “causation is established for purposes of
California tort law if the defendant’s conduct is a ‘substantial factor’ in
bringing about the plaintiff’s injury.” (Ledesma, supra, 5 Cal.5th at p. 223.)
While the employee’s intentional conduct was the immediate cause of injury
and the employer’s negligence an indirect cause, “a finder of fact could
conclude that the causal connection between [the employer’s] alleged
negligence and the injury inflicted by [the employee] was close enough to
justify the imposition of liability on [the employer].” (Id. at p. 225.) Thus,
contrary to ConAgra’s suggestion, Ledesma did not refuse to apply section
533 to the employer’s conduct despite it being a “substantial cause” in
causing the harm; it simply held section 533 did not bar coverage for
negligent conduct that was the basis of an independent tort from the injury-
causing intentional tort by the employee.
ConAgra provides no support for its contention that section 533 could
not be found to apply in this case absent proof that specific promotions by
Fuller directly resulted in the need for inspection or abatement in each home
for which ConAgra was held liable for payment. The underlying litigation
conclusively established ConAgra’s liability for public nuisance based on
Fuller’s intentional promotion of lead paint for interior residential use with
knowledge of the danger such use would create. (Santa Clara II, supra,
17 Cal.App.5th at p. 97.) Santa Clara II rejected arguments attempting to
limit each defendant’s liability to damage proven to be directly tied to that
entity’s product and/or promotions, explaining that imposition of liability for
the promotions did not require proof that lead paint made by each of the
19
defendants was currently present in homes in the 10 jurisdictions or
restriction of each defendant’s liability to its proportionate contribution to
creation of the public nuisance. (Id. at p. 108.) “ ‘ “A public nuisance is one
which affects at the same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the annoyance or
damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) . . .
[¶] “[P]ublic nuisances are offenses against, or interferences with, the
exercise of rights common to the public.” (People ex rel. Gallo v. Acuna (1997)
14 Cal.4th 1090, 1103.)” (Santa Clara II, at p. 112, quoting Santa Clara I,
supra, 137 Cal.App.4th at p. 305.) “ ‘ “[T]he critical question is whether the
defendant created or assisted in the creation of the nuisance.” ’ ” (Santa
Clara II, at p. 91, quoting Santa Clara I, at pp. 305–306.) Santa Clara II
affirmed the trial court’s determination that Fuller’s promotions were a
substantial factor in creating the public nuisance. (Id. at pp. 102–104.)
The question under section 533 is whether the loss for which an
insured seeks indemnity was caused by a willful act of the insured. The loss
at issue here is the amount ConAgra paid into the abatement fund due to its
liability for creating the public nuisance. The insurers’ duty to indemnify is
determined by the actual basis of liability imposed on the insured
(Armstrong, supra, 45 Cal.App.4th at p. 108)—here, liability for public
nuisance as successor to Fuller, whose conduct was a substantial factor in
creating the nuisance. ConAgra has provided neither authority nor
persuasive reasoning to support its contention that a different causation
20
analysis is required under section 533 than that used to determine its
underlying liability.9
B.
ConAgra next argues the underlying findings did not establish as a
matter of law that Fuller acted with the knowledge required for section 533
to apply. ConAgra argues the “actual knowledge” found in the underlying
litigation is not the same as the subjective “substantial certainty” required to
bar coverage under section 533, and Fuller’s knowledge could be shown only
by evidence that senior management was substantially certain its promotions
would result in the loss for which ConAgra seeks indemnity, as to which no
evidence was presented or findings made.
The underlying cases established that when Fuller promoted lead paint
for residential use, it had “ ‘actual knowledge of the hazards of lead paint—
including childhood lead poisoning,” and specifically that “(1) ‘lower level lead
exposure harmed children,’ (2) ‘lead paint used on the interiors of homes
would deteriorate,’ and (3) ‘lead dust resulting from this deterioration would
poison children and cause serious injury.’ ” (Santa Clara II, supra,
9 Arguing that section 533 cannot preclude indemnity because the loss
for which it was held liable is not all due to a willful act by Fuller, ConAgra
points out that while Santa Clara II limited the order to homes built before
1951—because there was no evidence of promotions after 1950—the order
would still apply to lead hazards from paint applied after 1950 in homes built
before. Lead paint applied after 1950, ConAgra maintains, cannot be tied to
any influence from Fuller’s promotions.
This argument confuses issues of liability and remedy. ConAgra was
held liable for creation of a public nuisance in homes constructed prior to
1951 by promoting lead paint for interior residential use at that time. Even if
the remedy—abatement of lead hazards in pre-1951 homes—results in some
of the abatement funds being used for abatement in homes that were actually
painted after 1951, ConAgra’s loss was due to its liability for the public
nuisance created by the willful act of Fuller.
21
17 Cal.App.5th at p. 85.) Santa Clara II found substantial evidence that
Fuller (and therefore ConAgra) “must have known by the early 20th century
that interior residential lead paint posed a serious risk of harm to children.”
(Id. at pp. 85–89.)
The trial court viewed the findings that Fuller knew “ ‘lead paint used
on the interiors of homes would deteriorate’ ” and “ ‘lead dust resulting from
this deterioration would poison children and cause serious injury’ ” satisfied
section 533’s willfulness standard. ConAgra argues, however, that for section
533 to apply, there would have to be evidence that Fuller believed the
“widespread prevalence of deteriorated lead paint” found to constitute a
public nuisance in this case “was substantially certain to result from its few
actionable promotions” and that Fuller knew all the events ConAgra sees as
having intervened during the decades following the promotions would occur
and be substantially certain to result in the widespread deterioration. In
ConAgra’s view, “Fuller’s promotions could have resulted in present-day lead
hazards inside homes only if (1) people were influenced by Fuller promotions
(above all other lead paint promotions), (2) those so influenced placed lead
paint inside of homes, (3) that paint gradually deteriorated, and (4) the paint
was not properly maintained or abated in the ensuing decades.”
These arguments are based on premises rejected in Santa Clara II.
The trial court in the underlying cases expressly found that lead paint
“ ‘inevitably deteriorates,’ ” as well as that “ ‘[s]ince antiquity, it has been
well known that lead is highly toxic and causes severe health consequences
when ingested’ and that ‘[e]ven relatively low levels of lead exposure have
severe health consequences.’ ” (Santa Clara II, supra, 17 Cal.App.5th at
p. 79.) The finding that Fuller promoted lead paint for interior residential
use with actual knowledge that lead paint “would deteriorate” and the
22
resulting lead dust “would poison children and cause serious injury” was, in
essence, a determination that Fuller must be deemed to have known the
deterioration of lead paint and resulting harm to children was inevitable.
These findings, conclusively established by Santa Clara II, cannot be
reconciled with any conclusion other than that Fuller “knew or believed its
conduct was substantially certain or highly likely to result” (Shell Oil, supra,
12 Cal.App.4th at p. 748) in the conditions found in this case to be a public
nuisance.10 We therefore agree with the trial court that the actual knowledge
10 ConAgra argues the trial court improperly drew inferences against it,
contrary to the rule that “[s]ummary judgment may not be granted by the
court based on inferences reasonably deducible from the papers submitted, if
such inferences are contradicted by other inferences which raise a triable
issue of fact.” (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714,
717–718.) ConAgra points to the statement in the trial court’s order granting
summary judgment that “the reasonable inference is that Fuller would not
have spent money to promote lead paint had it not expected sales and thus
damage.”
A trial court is not prohibited from drawing reasonable inferences from
the evidence on summary judgment, only from granting the motion on such
inferences if they are contradicted by other inferences or evidence: “In
determining if the papers show that there is no triable issue as to any
material fact, the court shall consider all of the evidence set forth in the
papers . . . and all inferences reasonably deducible from the evidence, except
summary judgment shall not be granted by the court based on inferences
reasonably deducible from the evidence if contradicted by other inferences or
evidence that raise a triable issue as to any material fact.” (Code Civ. Proc.,
§ 437c, subd. (c).)
There could be no reasonable inference to contradict the inference that
Fuller would not have spent money on promotions of lead paint if it did not
expect such promotions to result in sales. The inference that Fuller expected
the promotions to result in the harm caused by lead paint was drawn by
courts in the underlying litigation (Santa Clara II, supra, 17 Cal.App.5th at
pp. 88–89 [evidence of actual knowledge], 106 [inference that promotions
increased use of lead paint]) and applied by the trial court in the present
case.
23
findings in the underlying litigation establish the “willful act” required for
application of section 533.
To reiterate, ConAgra was found liable for creation of a public
nuisance, not for specific injuries to specific properties. As explained in
Santa Clara I, the underlying case was “a representative public nuisance
cause of action seeking abatement of a hazard created by affirmative and
knowing promotion of a product for a hazardous use . . . . Because this type
of nuisance action does not seek damages but rather abatement, a plaintiff
may obtain relief before the hazard causes any physical injury or physical
damage to property.” (Santa Clara I, supra, 137 Cal.App.4th at p. 309.)
ConAgra’s efforts to require proof of a direct link between Fuller’s promotions
of lead paint for residential use and resulting damage to specific homes
ignores this fundamental aspect of its liability.
ConAgra’s contention that section 533 could only apply if it was
established that Fuller’s management had the required knowledge and
expectation of damage is not persuasive. ConAgra argues that because
section 533 “distinguishes between the insured and its agents, the term ‘the
insured’ applies only to the corporate entity’s conduct and knowledge,” and
“[w]hile the conduct and knowledge of lower-level employees is imputed to
the corporation for purposes of establishing liability, such agency and
respondeat superior principles are not the same as the right of a corporation
to be insured under a policy of indemnification.” According to ConAgra, the
underlying findings are an insufficient basis for application of section 533
because they did not establish what individuals within Fuller had knowledge
and whether such individuals had authority over significant aspects of
Fuller’s business.
24
The cases ConAgra discusses in support of this argument stand for the
general principle that “section 533 does not preclude insurance coverage for
an ‘innocent’ or a negligent insured under a liability insurance policy”
(National Union fire Ins. Co. v. Lynette C. (1991) 228 Cal.App.3d 1073, 1085
[foster father’s sexual molestation of child did not preclude insurance
coverage for foster mother’s negligent failure to supervise]) and specifically,
as earlier discussed, that section 533 does not bar coverage for a principal
found vicariously liable for its agent’s willful act. (E.g., Federal Ins. Co. v.
Steadfast Ins. Co. (2012) 209 Cal.App.4th 668, 680–681; Nuffer v. Insurance
Co. of North America, supra, 236 Cal.App.2d at pp. 355–356; Borbor, supra,
826 F.2d at p. 890; Downey, supra, 66 Cal.App.4th at p. 512; Century-
National Ins. Co. v. Garcia, supra, 51 Cal.4th at pp. 566, 573.) But there is
nothing in the appellate or trial court opinions in the underlying litigation to
suggest ConAgra’s liability was based on Fuller’s vicarious liability for an
employee’s acts rather than for Fuller’s own acts as a corporation. ConAgra
does not explain how emphasizing the distinction between acts and
intentions of an insured and those of its agents illuminates the means by
which a corporate entity’s knowledge should be determined.
The trial court cited FMC, supra, 61 Cal.App.4th at pages 1212–1214,
in holding that for purposes of section 533 and the determination whether
damage was expected, “an entity’s employees’ collective knowledge—not just
senior managers’ knowledge— is what matters.” FMC upheld jury
instructions to the effect that a corporation is deemed to have knowledge of
whatever its employee has knowledge of while acting in the course of his or
her employment, rejecting the argument that knowledge can be imputed to a
corporation only if it is shown to exist on the part of high level corporate
25
managers. (FMC, at p. 1213.)11 FMC is consistent with the general rule that,
under the doctrine of imputed knowledge, “[a] principal is chargeable with
and is bound by the knowledge of, or notice to, his agent received while the
agent is acting within the scope of his authority and which is with reference
to a matter over which his authority extends.” (Columbia Pictures Corp. v.
De Toth (1948) 87 Cal.App.2d 620, 630; Northern Natural Gas Co. v. Superior
Court (1976) 64 Cal.App.3d 983, 992.)
ConAgra does not directly challenge FMC’s holding but instead argues
that because that case involved a trial at which various employees testified,
FMC demonstrates a court must receive testimony showing “who within the
company knew what,” which the trier of fact must then evaluate to determine
whether the evidence establishes the company’s knowledge. ConAgra
emphasizes its view that “in the public nuisance case, the courts were not
required to determine who within Fuller had the knowledge required to
impose liability, but section 533 requires differentiation among knowledge
held within a corporate insured,” and, therefore, “the underlying findings of
Fuller’s ‘actual knowledge’ are not determinative of whether there was a
willful act of ‘the insured’ under section 533.”
11The insurers quote another court’s statement that, with respect to
whether a corporation expects or intends property damage, “the collective
knowledge of a corporation’s employees which they receive while acting
within the scope of their authority and which is with reference to a matter
over which their authority extends is the knowledge of the corporation.”
(Syntex Corp. v. Lowsley-Williams & Companies (1998) 67 Cal.App.4th 871,
895, review granted Feb. 24, 1999, review dismissed Feb. 16, 2000, S075573.)
Although the California Supreme Court dismissed review, its prior grant of
review automatically depublished the Court of Appeal opinion (former Cal.
Rules of Court, rules 8.1115 & 977) and the order dismissing review did not
order that opinion republished. Accordingly, the case is not citable precedent.
26
But ConAgra offers no authority for its distinction between the
knowledge required for liability and that required for application of section
533 other than the vicarious liability cases. Contrary to ConAgra’s
characterization, these cases do not reflect any requirement that a
corporation’s knowledge, for purposes of section 533, can be shown only by
proof of the knowledge of high-level corporate managers.
The underlying litigation established that Fuller—the corporate
entity—had actual knowledge of the harms associated with lead paint when
it promoted lead paint for interior residential use. We have already
concluded that this actual knowledge finding necessarily means Fuller acted
with knowledge that lead paint was “substantially certain” or “highly likely”
to result in the hazard found to exist in the underlying litigation, and
therefore established the willful act required to trigger section 533
prohibition against insurance coverage. ConAgra’s argument that the
knowledge required for application of section 533 required proof of what
knowledge was held by specific individuals within the company is in effect a
challenge to factual determinations made in the underlying litigation that
are now final and binding. As we have said, an insurer’s duty to indemnify is
determined by the actual basis of liability imposed on the insured.
(Armstrong, supra, 45 Cal.App.4th at p. 108.) Since the findings establishing
that liability also establish the willful act required for application of section
533, ConAgra’s position is untenable.
DISPOSITION
The judgment is affirmed.
27
_________________________
Kline, J.*
We concur:
_________________________
Richman, Acting P.J.
_________________________
Miller, J.
Certain Underwriters at Lloyd’s London et al. v. ConAgra Grocery Products
Company et al. (A160548)
* Assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
28
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Richard B. Ulmer, Jr.
Attorneys for Appellants: Reed Smith
ConAgra Grocery Products Raymond A. Cardozo
Company David E. Weiss
T. Connor O’Carroll
Attorneys for Respondents: Zuckerman Spaeder
Certain Underwriters at Carl S. Kravitz (Pro Hac Vice)
Lloyd’s London; Winterthur Caroline E. Reynolds (Pro Hac Vice)
Swiss Insurance Company; Alicia Shelton (Pro Hac Vice)
The Northern Assurance Co. of
America; Yasuda Fire & Nicolaides Fink Thorpe Michaelides Sullivan
Marine Insurance Company: Sara M. Thorpe
Ethan H. Seibert
Affiliated FM Insurance Co.: Hinshaw & Culbertson
John E. DeLascio (Pro Hac Vice)
Scott M. Seaman (Pro Hac Vice)
Robert G. Levy
AIU Insurance Co.; American Selvin Wraith Halman
Home Assurance Company; Gary R. Selvin
Granite State Insurance Co.; The
Insurance Company of the State Chaffetz Lindsey
of Pennsylvania; Lexington Charles J. Scibetta (Pro Hac Vice)
Insurance Co.; National Union Ted Debonis (Pro Hac Vice)
Fire Insurance Co. of Pittsburgh,
Pennsylvania:
American Guarantee & Liability Skarzynski Marick & Black
Insurance Co.; American Zurich James H. Kallianis, Jr.
Insurance Co.; Zurich Reinsurance
Co. Ltd.; Zurich Insurance Co.: Sinnott, Puebla, Campagne & Curet
Debra R. Puebla
Robert A. Sanders
29
Arrowood Indemnity Company; Clyde & Company US
Century Indemnity Company; Bruce D. Celebrezze
Pacific Employers Insurance Co.; Dean J. McElroy
Westchester Fire Insurance Co.; W. Andrew Miller
Westchester Surplus Lines Paul R. Koepff (Pro Hac Vice)
Insurance Company: Ryan Westerfield (Pro Hac Vice)
Peter J. Whalen
O’Melveny & Myers
Jonathan Hacker (Pro Hac Vice)
Ancon Insurance Company; Foran Glennon Palandech Ponzi & Rudloff
Brittany Insurance Company; Edward P. Murphy
CAN Reinsurance Company;
Dominion Insurance Company;
Terra Nova Insurance Company;
Harper Insurance; La Union
Atlantique; St. Katherine
Insurance Company:
Employers Insurance Company Dorsey & Whitney
of Wausau: Faisal M. Zubairi
Everest Reinsurance Company; Crowell & Moring
Fairmont Premier Insurance Co.; Mark D. Plevin
Crum & Forster Insurance Co.; Laura A. Foggan (Pro Hac Vice)
United States Fire Insurance Co.:
Fireman’s Fund Insurance Co.; Tressler
Allianz Underwriters Insurance Mary McPherson
Company:
First State Insurance Co.; Kendall Brill & Kelly
Hartford Fire Insurance Co.; Alan Jay Weil
New England Insurance Co.; Shauna E. Woods
Twin City Fire Insurance Co.:
Great American E&S Insurance Duane Morris
Company; Safety National William J. Baron
Casualty Corporation: Philip R. Matthews
30
Munich Reinsurance America, Craig & Winkelman
Inc.; Executive Risk Indemnity: Bruce H. Winkelman
Old Republic Insurance Co.: Wolkin Curran
Brandt L. Wolkin
Jennifer Elowsky
The Continental Insurance Co.; CNA Coverage Litigation Group
National Fire Insurance Co. of Edward J. Tafe
Hartford; Columbia Casualty Co.;
Continental Casualty Co.: Dentons US
M. Keith Moskowitz (Pro Hac Vice)
Kristen C. Rodriguez (Pro Hac Vice)
Shannon Y. Shin (Pro Hac Vice)
Travelers Casualty and Surety Simpson Thacher & Bartlett
Company; St. Paul Surplus Stephen P. Blake
Lines Insurance Company: Bryce L. Friedman (Pro Hac Vice)
Susannah S. Geltman (Pro Hac Vice)
31