in the Court of Appeals 11 January 2017.
by plaintiff from orders entered 28 and 29 January 2016 by
Judge W. David Lee in Mecklenburg County No. 13 CVS 2271
Perkins Coie LLP, by Jonathan G. Hardin, pro hac vice, and
Catherine J. Del Prete, pro hac vice; and McGuirewoods LLP,
by Joshua D. Davey and L.D. Simmons, II, for
plaintiff-appellant, cross-appellee Radiator Specialty
brief filed for defendant-appellee Arrowood Indemnity
Moore Leatherwood LLP, by Matthew Nis Leerberg and Timothy P.
Lendino; and Rivkin Radler LLP, by Michael A. Kotula, pro hac
vice, and Robert A. Maloney, pro hac vice, for
defendant-appellee, cross-appellant Fireman's Fund
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane
Jones and Paul C. Lawrence; and Musick, Peeler, &
Garrett, LLP, by Stephen M. Green, pro hac vice, for
defendant-appellee Landmark American Insurance Company.
Goldberg Segalla, LLP, by David L. Brown; and Jacson &
Campbell, P.C., by Donald C. Brown, Jr. and Timothy R.
Dingilian, for defendant-appellee National Union Fire
Insurance Company of Pittsburgh, PA.
Pruet, PLLC, by James W. Bryan; and Saul Ewing, LLP, by
Thomas S. Schaufelberger, pro hac vice, and Aaron J.
Kornblith, pro hac vice, for defendant-appellee United
National Insurance Company.
Gallivan, White & Boyd, P.A., by Phillip E. Reeves, pro
hac vice, Jennifer E. Johnsen, pro hac vice, and Gillian S.
Crowl; and Ellis & Winters LLP, by Thomas H. Segars, for
defendant-appellee, cross-appellant Zurich American Insurance
Company of Illinois.
& Williams LLP, by Nash E. Long; and Pillsbury Winthrop
Shaw Pittman LLP, by Mark J. Plumer, pro hac vice, and Vernon
Thompson, Jr., pro hac vice, for Edison Electric Institute,
Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch
and Laura Foggan, pro hac vice, for Complex Insurance Claims
Litigation Association, amicus curiae.
Robinson, Bradshaw & Hinson, P.A., by R. Steven DeGeorge;
and Reed Smith LLP, by Ann V. Kramer, pro hac vice, and Julie
L. Hammerman, pro hac vice, for United Policyholders, amicus
interlocutory appeals and cross-appeals in this complex
insurance case arise from an action brought by a diversified
products manufacturer and seller that, since 1971, secured
from about two dozen insurers a sophisticated multi-policy
commercial liability insurance package; for a few undisclosed
years manufactured products containing benzene and asbestos
and, consequently, has paid or incurred substantial
litigation defense costs and liabilities to resolve hundreds
of related products-liability claims; and then, years later,
after settling coverage disputes with several of its
insurers, brought the instant action against its remaining
solvent insurers, seeking a judgment declaring the extent to
which those insurers owe it a duty to pay its defense and
indemnity costs under their respective policies for past and
future benzene and asbestos claims brought against it.
the course of litigation, the parties moved and cross-moved
for partial summary judgment on various coverage issues.
After multiple hearings, the trial court entered fifteen
orders resolving most disputes in the context of these
progressive disease claims, including the proper theory to
determine whether coverage has been triggered under a policy,
method to allocate defense and indemnity costs for claims
spanning multiple policy periods, and method to determine
when underlying coverage exhausts and excess or umbrella
coverage attaches. But before the court entered any final
judgments in the action, the parties appealed or
cross-appealed six of those orders.
case presents various insurance liability coverage issues,
including which trigger, allocation, and exhaustion theories
or methods should apply to progressive disease claims
spanning multiple policy periods of a decades-long,
multi-carrier, multi-policy, multi-layered liability
insurance coverage block. The dispositive issue, however, is
whether this case should dismissed at this stage in
litigation. Several insurers request that we dismiss these
appeals and cross-appeals so the trial court can enter a
final judgment fully and finally resolving all claims. These
insurers argue that the interlocutory orders on appeal would
not irreparably affect substantial rights justifying
immediate review. The insured and one insurer claim
entitlement to immediate review on the basis that the orders
affect their substantial rights.
these six interlocutory orders were not Rule-54(b)-certified
by the trial court as appropriate for immediate appeal, nor
has any party demonstrated sufficiently how any order affects
its substantial rights and would work injury if not
immediately reviewed, we dismiss these appeals and
cross-appeals to allow the trial court to fully and finally
resolve all matters before entertaining appellate review.
thousands of documents in the appellate record and the
parties' fifteen briefs were filed under seal, our
discussion and analysis is limited.
Radiator Specialty Company (RSC) is an automotive, hardware,
and plumbing products manufacturer and seller. Since 1971,
RSC has insured itself against various risks from operating
its business, securing from twenty-five insurers over
one-hundred primary, excess, or umbrella commercial general
and/or products liability insurance policies providing
coverage for nearly annual periods in differing amounts,
policies subject to differing limits, retentions, and
deductibles. Five of those insurers, Fireman's Fund,
Landmark, National Union, United National, and Zurich
(defendants) issued RSC twenty-five primary, excess, or
umbrella policies for nearly annual periods within a
1976-2014 coverage block.
few years within that coverage block, RSC manufactured
products containing benzene and asbestos. As a result, RSC
has been named as a defendant or co-defendant in hundreds of
benzene- and asbestos-related products liability claims filed
across the United States. Over several years, RSC has paid or
incurred substantial litigation defense and liability costs