[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lubrizol Advanced Materials, Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, PA., Slip Opinion
No. 2020-Ohio-1579.]




                                          NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2020-OHIO-1579
LUBRIZOL ADVANCED MATERIALS, INC., v. NATIONAL UNION FIRE INSURANCE
                        COMPANY OF PITTSBURGH, PA., ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lubrizol Advanced Materials, Inc. v. Natl. Union Fire Ins. Co.
              of Pittsburgh, PA., Slip Opinion No. 2020-Ohio-1579.]
Insurance—No allocation of liability across multiple insurers and policy periods
        when injury or damage for which liability coverage is sought occurred at a
        discernible time.
     (No. 2018-1815—Submitted January 7, 2020—Decided April 23, 2020.)
ON ORDER from the United States District Court for the Northern District of Ohio,
 Eastern Division, Certifying a Question of State Law, No. 1:17-cv-01782-DAP.
                                _____________________
        O’CONNOR, C.J.
        {¶ 1} This case is before us on the certification of a state-law question by
the United States District Court for the Northern District of Ohio, Eastern Division.
The federal court asks that we determine whether an insured is permitted to seek
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full and complete indemnity, under a single policy providing coverage for “those
sums” that the insured becomes legally obligated to pay because of property
damage that takes place during the policy period, when the property damage
occurred over multiple policy periods.
       {¶ 2} We answer the certified state-law question in the negative. However,
because the terms of the contract and the circumstances surrounding the liability
control, we caution against using our answer to the question as a blanket rule
applicable to all policies with “those sums” language.
                                 Relevant Background
       {¶ 3} The federal court provided the following facts and allegations from
which the question of law arises. Petitioner, Lubrizol Advanced Materials, Inc.
(“Lubrizol”), manufactured and sold allegedly defective resin to IPEX, Inc.,
between 2001 and 2008. IPEX used the resin to make pipes for its Kitec plumbing
systems that were sold to consumers in the United States and Canada. These pipes
failed, resulting in numerous claims against IPEX for selling defective pipes. IPEX
settled the claims, but it sued Lubrizol alleging negligence, breach of contract, and
breach of warranty on the basis that Lubrizol knew or should have known the resin
it sold to IPEX was not fit or suitable for the resin’s intended purpose of being used
in pipes.   IPEX sought complete indemnification from Lubrizol.            IPEX and
Lubrizol settled their claims.
       {¶ 4} Subsequently, Lubrizol sued respondent National Union Fire
Insurance Company of Pittsburgh, PA. (“National Union”), which insured Lubrizol
pursuant to an umbrella policy effective February 28, 2001, to February 28, 2002.
Other insurers provided coverage to Lubrizol at various points during the time in
which Lubrizol sold the allegedly defective resin to IPEX. The language in those
policies and the scope of their coverage is not at issue in this action.
       {¶ 5} Lubrizol argued that under Ohio law, all of its triggered insurance
policies should be treated as establishing joint and several liability, such that




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Lubrizol could recover under the policy of its choice. Accordingly, Lubrizol
claimed it was entitled to recover all amounts it paid to defend and settle IPEX’s
claims, less the underlying policy limits and retention amount. Specifically,
Lubrizol sought an order requiring National Union to pay all defense costs incurred
in defending the IPEX lawsuit, the amounts Lubrizol paid to settle the IPEX action,
and past and future anticipated defense costs by Lubrizol in defending related
litigation.
        {¶ 6} National Union filed a counterclaim against Lubrizol, seeking a
declaration that Lubrizol is not entitled to allocate all defense costs and indemnity
to a single policy period when multiple policies and corresponding policy periods
were triggered.
        {¶ 7} The National Union insurance policy states, in relevant part:


        We will pay on behalf of the Insured those sums in excess of the
        Retained Limit that the Insured becomes legally obligated to pay by
        reason of liability imposed by law or assumed by the Insured under
        an Insured Contract because of Bodily Injury, Property Damage,
        Personal Injury or Advertising Injury that takes place during the
        Policy Period and is caused by an Occurrence happening anywhere
        in the world. The amount we will pay for damages is limited as
        described in Insuring Agreement III, Limits of Insurance.


                             The State Law Question
        {¶ 8} While attempting to mediate their claims, National Union and
Lubrizol notified the federal court that they disagreed about the appropriate
allocation method to be used and that an answer to that question would allow them
to make significant progress toward a settlement. The parties submitted a Joint




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Proposed Order Certifying a State Law Question to the district court, which then
certified the following question to this court:


                Whether an insured is permitted to seek full and complete
        indemnity, under a single policy providing coverage for “those
        sums” the insured becomes legally obligated to pay because of
        property damage that takes place during the policy period, when the
        property damage occurred over multiple policy periods.


We agreed to answer the question. 154 Ohio St.3d 1519, 2019-Ohio-768, 118
N.E.3d 257.
                   Applicable Rules of Contract Interpretation
        {¶ 9} The governing principle in contract interpretation is to give effect to
the intent of the parties, and we presume that the intent of the parties is reflected in
the plain language of the contract. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d
216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. “When the language of a written
contract is clear, a court may look no further than the writing itself to find the intent
of the parties.” Sunoco, Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d 397,
2011-Ohio-2720, 953 N.E.2d 285, ¶ 37.
                                Lubrizol’s Argument
        {¶ 10} Lubrizol argues that the court should follow its precedent in
Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-
Ohio-2842, 769 N.E.2d 835, and Pennsylvania Gen. Ins. Co. v. Park-Ohio
Industries, 126 Ohio St.3d 98, 2010-Ohio-2745, 930 N.E.2d 800. In Goodyear, we
considered the allocation of insurance coverage among multiple insurers for
pollution cleanup costs at several waste-disposal sites when the policy language of
one of the insurers required the insurer to “ ‘pay on behalf of the insured all sums
which the insured shall become legally obligated to pay as damages because of




                                           4
                                January Term, 2020




* * * property damage to which this policy applies caused by an occurrence.’ ”
(Emphasis added in Goodyear.) Goodyear at ¶ 7, quoting the policy language at
issue in that case. The policy defined “property damage” as “ ‘injury to or
destruction of tangible property which occurs during the policy period.’ ”
(Emphasis added in Goodyear.) Id. The court held that the plain language of the
“all sums” provision was “inclusive of all damages resulting from a qualifying
occurrence.” Id. at ¶ 9. Accordingly, Goodyear was entitled to “seek full coverage
for its claims from any single policy, up to that policy’s coverage limits, out of the
group of policies that ha[d] been triggered.” Id. at ¶ 6. The court held that “when
a continuous occurrence of environmental pollution triggers claims under multiple
primary insurance policies, the insured is entitled to secure coverage from a single
policy of its choice that covers ‘all sums’ incurred as damages ‘during the policy
period,’ subject to that policy’s limit of coverage.” Id. at ¶ 11. The court also noted
that if one policy did not cover Goodyear’s entire claim at a given site, then it could
pursue coverage under another triggered policy from either a primary or an excess
insurer. Id. at ¶ 12.
        {¶ 11} In Park-Ohio, we reaffirmed the all-sums allocation method adopted
in Goodyear and applied it in a case involving asbestos-related injuries. Park-Ohio
at ¶ 2-3. We stated that “Goodyear created an equitable approach to the unique
situation surrounding the allocation of liability in progressive-injury cases * * *.”
Id. at ¶ 17.
                           National Union’s Argument
        {¶ 12} National Union counters that Goodyear is inapplicable because the
policy here refers to “those sums”—not “all sums.” Further, National Union argues
that Goodyear applies only to situations in which the injury is continuous and
indivisible, such as in many asbestos-exposure and environmental-pollution claims.
National Union argues that the harm in this case was discrete and therefore actual
or pro rata allocation is appropriate. Specifically, according to National Union, the




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allegedly defective resin caused “known or knowable damage in each year between
2001 and 2008,” “not indivisible injury similar to the long-term pollution damage
in Goodyear.”
                                     Analysis
       {¶ 13} The immediate question before the court is whether contract
language providing coverage for “those sums” should be treated like contract
language providing coverage for “all sums.” We agree that generally, “those sums”
may indicate a subset of “all sums.” However, we have long assumed that the
insurer, as the drafter of the policy, is in a stronger bargaining position than the
insured, and therefore, we construe contractual ambiguities in favor of the insured.
Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 34.
Consequently, we refuse to engage in a hypertechnical grammar analysis to
determine whether the phrase “those sums” is always more limited than “all sums”
and would always lead to a different allocation. As with any contract, insurance
policies should be interpreted as written, and the meaning of the phrase “those
sums” depends on the context of each policy and each case. We decline to set a
bright-line rule based merely on a party’s use of the word “those” instead of “all.”
       {¶ 14} In order to resolve the certified question, we are compelled to clarify
the scope of our decision in Goodyear, particularly the distinguishing features of
that analysis. In Goodyear, we stated, “The issue of allocation arises in situations
involving long-term injury or damage, such as environmental cleanup claims where
it is difficult to determine which insurer must bear the loss.” Goodyear, 95 Ohio
St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, at ¶ 5. As we will discuss below, this
case does not appear to involve long-term or progressive injury or property damage
and therefore the type of allocation provided for in Goodyear is unnecessary.
       {¶ 15} In Goodyear, we relied heavily on Keene Corp. v. Ins. Co. of N. Am.,
667 F.2d 1034 (D.C.Cir.1981), which concerned liability coverage for a
manufacturer of insulation products that contained asbestos. The Keene court




                                         6
                                January Term, 2020




identified a three-step analysis for determining whether an insurer has a coverage
duty: “first, the trigger of coverage under the policies; second, the extent of
coverage once a policy is triggered; and third, the allocation of liability among
insurers if more than one policy is triggered.” Id. at 1042. The key factor in Keene
was that no single event triggered coverage. Instead, in an asbestos case, coverage
could be triggered by inhalation exposure (inhalation of asbestos dust), exposure in
residence (injury caused by asbestos fibers that become lodged in the lungs), and
manifestation (when a disease caused by asbestos exposure becomes recognizable).
Id. at 1047. Because there were multiple points in time that could trigger coverage,
the court recognized that “only part of the disease will have developed during any
single policy period,” id., and thus it was necessary to determine how liability
should be allocated among all the triggered policies, id. at 1047-1050.
         {¶ 16} We adopted Keene’s allocation analysis in Goodyear and affirmed it
in Park-Ohio. In Goodyear, we held that “when a continuous occurrence of
environmental pollution triggers claims under multiple primary insurance policies,
the insured is entitled to secure coverage from a single policy of its choice that
covers ‘all sums’ incurred as damages ‘during the policy period,’ subject to that
policy’s limit of coverage.” Goodyear at ¶ 11. Similarly, in Park-Ohio, we stated
that when “loss or injury is caused over a period of time and multiple insurance
policies cover that time frame,” an all-sums allocation was applicable. Park-Ohio,
126 Ohio St.3d 98, 2010-Ohio-2745, 930 N.E.2d 800, at ¶ 1. But both of those
cases involved ongoing, continuous exposure, which we have described as
“progressive injury,” see id. In Goodyear, waste disposed at landfills over a long
period migrated, causing widespread environmental pollution.         In Park-Ohio,
asbestos dust caused continuous progressive injury like the court described in
Keene.
         {¶ 17} Here, however, National Union has alleged that the harm is discrete,
not ongoing and continuous. In other words, the policy coverage is triggered at a




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single, discernable point in time. Lubrizol makes the assertion that the claims
involve “long tail property damage” but does not offer persuasive arguments to
support the idea that a garden-variety product defect creates the same kind of
continuous progressive harm that occurred in Goodyear and Park-Ohio. Lubrizol
argues that the “divisibility of harm is outside of the scope of the certified question,”
but we disagree. However, we leave open the possibility that Lubrizol could
marshal more evidence before the trial court to establish this as a progressive-injury
case.
        {¶ 18} But, even if Lubrizol’s assertions are true, we would conclude that
allocation under Goodyear is unnecessary. As National Union states, the time of
damage is known or knowable. For example, it should be ascertainable how much
resin was produced on a given date, how much resin was sold to IPEX, which lots
of Kitec plumbing were produced on certain dates, when the Kitec plumbing was
sold and installed, and when it failed. Under these circumstances, the operative
contract language is not the reference to policy coverage for “those sums” but rather
to injury or damage “that takes place during the Policy Period.”
        {¶ 19} For the limited purpose of resolving the certified question, we
conclude that there is no reason to allocate liability across multiple insurers and
policy periods if the injury or damage for which liability coverage is sought
occurred at a discernible time. In that circumstance, the insurer who provided
coverage for that time period should be liable, to the extent of its coverage, for the
claim. As alleged by National Union, the facts here are distinguishable from
Goodyear, Park-Ohio, and Keene, in which there was an “injurious process that
beg[an] with an initial exposure and end[ed] with manifestation of disease” but that
continued to develop injury at all the points in between. Keene, 667 F.2d 1034 at
1047.




                                           8
                                January Term, 2020




                                     Conclusion
       {¶ 20} Based on the contract and the facts alleged in this case, we answer
the certified state-law question in the negative.
                                                                       So answered.
       FRENCH, DONNELLY, and STEWART, JJ., concur.
       DEWINE, J., concurs in judgment only, with an opinion joined by KENNEDY
and FISCHER, JJ.
                                _________________
       DEWINE, J., concurring in judgment only.
       {¶ 21} I would answer the certified question with an unqualified no.
       {¶ 22} The certified question is “whether an insured is permitted to seek full
and complete indemnity, under a single policy providing coverage for ‘those sums’
that the insured becomes legally obligated to pay because of property damage that
takes place during the policy period, when the property damage occurred over
multiple policy periods.”
       {¶ 23} When a contract provision says that an insurer is required to pay only
“those sums” that arise from damage that occurs “during the policy period,” that is
all the insurer may be required to pay. The insurance provision at issue here
unambiguously so provides. Thus, Lubrizol Advanced Materials, Inc., is not
entitled to allocate to a single policy period defense and indemnity costs that
resulted from injuries that occurred over multiple policy periods.
       {¶ 24} Because the majority qualifies its answer to the certified question, I
concur in judgment only.
       {¶ 25} I note further that because a plain reading of the policy language set
forth in the certified question answers that question, there is no need for us today
to address the continuing vitality of Goodyear Tire & Rubber Co. v. Aetna Cas. &
Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, and Pennsylvania
Gen. Ins. Co. v. Park-Ohio Industries, 126 Ohio St.3d 98, 2010-Ohio-2745, 930




                                          9
                            SUPREME COURT OF OHIO




N.E.2d 800, cases that interpreted different policy language. Nor do we have
occasion to consider, under the instant policy language, the proper method to
apportion liability for long-tail claims in which an indivisible injury occurs over
multiple policy periods.
       KENNEDY and FISCHER, JJ., concur in the foregoing opinion.
                              _________________
       Julie A. Harris and Nada G. Faddoul, for petitioner.
       Crowell & Moring, L.L.P., and Laura A. Foggan; Lewis, Brisbois, Bisgaard
& Smith, Thomas P. Mannion, and Bradley J. Barmen; and Nicolaides Fink Thorpe
Michaelides Sullivan, L.L.P., Jonathan T. Viner, Ian A. Cooper, Joel M. Graczyk,
and Rebecca E. Bennett, for respondent National Union Fire Insurance Company
of Pittsburgh, PA.
       Brouse McDowell, Paul A. Rose, and Jodi D. Spencer-Johnson, in support
of petitioner for amici curiae Ohio Chemistry Technology Council, Cleveland-
Cliffs, Inc., Eaton Corporation, Goodrich Corporation, MTD Products, Inc.,
Materion Corporation, PolyOne Corporation, RPM International, Inc., Goodyear
Tire & Rubber Company, Interlake Steamship Company, Lincoln Electric
Company, and Sherwin-Williams Company.
       Plunkett Cooney and Patrick E. Winters, in support of respondent National
Union Fire Insurance Company of Pittsburgh, PA. for amicus curiae Complex
Insurance Claims Litigation Association.
       Collins, Roche, Utley & Garner, Richard M. Garner, and James S. Kresge,
in support of respondent National Union Fire Insurance Company of Pittsburgh,
PA. for amicus curiae Ohio Insurance Institute.
                              _________________




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