                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                                 ___________

                                 No. 00-2012
                                 ___________

Nationwide Insurance Company,           *
                                        *
             Plaintiff/Appellee,        *
                                        *
      v.                                *
                                        * Appeal from the United States
Central Missouri Electric Cooperative, * District Court for the
Inc.,                                   * Western District of Missouri.
                                        *
             Defendant,                 *
                                        *
Federated Rural Electric Insurance      *
Corporation,                            *
                                        *
             Defendant/Appellant.       *
                                   ___________

                           Submitted: February 12, 2001

                                Filed: July 31, 2001 (Corrected October 1, 2001)
                                 ___________

Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

WOLLMAN, Chief Judge.
       Federated Rural Electric Insurance Corporation (Federated) appeals the district
court’s1 judgment that it is contractually obligated to indemnify the Central Missouri
Electric Cooperative (CMEC) for the settlement of a tort suit filed by Richard and Ruth
Balke and the court’s allocation of damages between Federated and Nationwide
Insurance Company (Nationwide) pursuant to a time on the risk analysis. We affirm.

                                 I. BACKGROUND

                             A. The Underlying Lawsuit

       In 1992, Richard and Ruth Balke, then the co-owners of a dairy farm located
near Cole Camp, Missouri, filed suit in Missouri state court against CMEC, an energy
supplier and the owner of the equipment providing electricity to their dairy. The Balkes
alleged that in 1982 CMEC installed a defective 50 kva Wagner transformer on their
property and that thereafter they received inconsistent voltage electricity, at times in
excess of 120v or 240v, until the faulty transformer was replaced in 1991. The Balkes
claimed that the irregular supply of electricity damaged their computerized dairy
operation and resulted in, inter alia, inconsistencies in the milking process, disease in
the herd, higher than average electric bills, damaged equipment, and ultimately, reduced
profits. Although the Balkes’ complaint pled alternate theories of liability, including
negligence, strict liability, res ipsa loquitur, breach of implied warranty, and fraudulent
misrepresentation, the case was ultimately submitted to a jury in Cooper County,
Missouri, solely on res ipsa loquitur and strict liability theories, with the jury being
instructed that any damages sustained prior to July 7, 1987, were barred by the relevant
statute of limitations. The jury awarded the Balkes $783,333.




      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

                                           -2-
       On appeal, the Missouri Court of Appeals reversed the jury verdict and
remanded for a new trial limited to negligence theories of liability. Balke v. CMEC,
966 S.W.2d 15, 27 (Mo. Ct. App. 1997). The court affirmed the trial court’s statute
of limitations determination, however, finding that the defective electrical transformer
“constituted a continuing wrong which created fresh injuries to [the Balkes] from day
to day,” and therefore that the individual damages incurred after July 7, 1987, were not
time-barred. Id. at 20-21. Prior to re-trial, Nationwide, which insured CMEC in 1982,
1983, 1984, and 1991, settled the case on CMEC’s behalf for $859,108; Federated,
which insured CMEC from 1985 through 1990, contributed $150,000 to the settlement.

                                B. The Present Action

        After co-funding the settlement of the Balkes’ lawsuit against CMEC,
Nationwide filed this action in federal district court seeking a declaration (1) that it had
no obligation to indemnify CMEC for damages that were barred by the statute of
limitations; and (2) that it had no obligation to indemnify CMEC for damages sustained
during Federated’s coverage period from 1985 through 1990. Nationwide conceded
that it was obligated to indemnify CMEC for damages that occurred during its 1991
policy period, but sought an allocation of damages to Federated in excess of the
$150,000 that Federated contributed to settle the underlying tort suit.

      Federated counterclaimed, arguing that the sole occurrence triggering insurance
coverage was the 1982 negligent installation of the faulty transformer, and that
Nationwide was therefore solely responsible for the damages incurred by the Balkes
pursuant to the terms of its 1982 policy. Federated therefore sought recovery of the
$150,000 that it had contributed to the settlement.

       The parties filed cross-motions for summary judgment, and the district court
granted summary judgment to Nationwide. The court concluded that Nationwide was
obligated to indemnify CMEC only for damages that occurred in 1991 and that

                                            -3-
Federated was responsible for all damages incurred from 1985 through 1990. The
court then applied a time on the risk analysis to allocate responsibility for the $859,108
settlement between Federated and Nationwide, concluding that Federated was
responsible for 77.7% of the settlement, equaling $667,526.92.2 Because Federated
had already contributed $150,000, the court entered judgment against it in the amount
of $517,526.92.

       On appeal, Federated contends (1) that Nationwide must indemnify CMEC for
the entire $859,108 settlement; (2) that it has no obligation to indemnify CMEC under
any of its policies; (3) that the district court erred in allocating damages; and (4) that
the court abused its discretion by considering the affidavit of a Nationwide employee.

                                  II. DISCUSSION

                               A. Standard of Review

        We review the district court’s grant of summary judgement de novo, Luigino’s,
Inc. v. Stouffer Corp., 170 F.3d 827, 830 (8th Cir. 1999), and we apply the same
standard as did the district court: whether the record, viewed in a light most favorable
to the non-moving party, demonstrates no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Barrera v. Con Agra, Inc., 244
F.3d 663, 665 (8th Cir. 2001). The construction of an insurance policy is governed by
state law, David v. Tanksley, 218 F.3d 928, 930 (8th Cir. 2000), and our review of the
district court’s interpretation of state law--in this case, Missouri law--is de novo. Id.
Our duty is to ascertain and apply Missouri law, not to formulate the legal mind of the
state. Id.



      2
      The court determined that Federated insured CMEC for 1273 out of the total
1638 days from July 7, 1987 to December 31, 1991.

                                           -4-
                             B. The Insurance Policies

       Federated insured CMEC on an annual basis from 1985 through 1990. These
policies provided, in relevant part, “Federated will pay on behalf of the policyholder
all sums . . . which the policyholder shall become legally obligated to pay as damages
because of personal injury, or property damage, to which this insurance applies, caused
by an occurrence.” The policies defined an “occurrence” as “[a]n accident occurring
within the policy period, including continuous or repeated exposure to conditions,
which results in Personal Injury or Property Damage neither expected or intended from
the standpoint of the insured.”

        Nationwide provided CMEC with similar liability insurance from May of 1982
through 1984, and again in 1991. In an affidavit submitted to the district court, Tim
Woods, Nationwide’s legal counsel for specialty claims, averred that the company was
unable to locate the policies in effect from 1982 to 1984. Woods conceded, however,
that Nationwide insured CMEC during the years in question for damages resulting from
an “occurrence.” He further stated that he was personally familiar with the 1982, 1983,
and 1984 policies, and that these policies defined “occurrence” as “an accident,
including continuous or repeated exposure to conditions, which results in personal
injury, advertising injury, or property damage within the policy period, and is neither
expected or intended from the standpoint of the insured . . . .” Nationwide was able to
produce a certified copy of its 1991 policy, which provided that it would pay “all sums
. . . which the insured shall become legally obligated to pay as damages because of .
. . property damage . . . caused by an occurrence.” The 1991 policy included the same
definition of “occurrence” as did Nationwide’s earlier policies.




                                          -5-
                             C. Policy Coverage Issues

       We must determine which of the insurance policies issued by Federated and
Nationwide indemnify CMEC for the settlement of the Balkes’ lawsuit. We turn first,
therefore, to the question of which underlying events trigger coverage under the terms
of the respective policies. Our analysis of this issue is controlled by Missouri law,
which provides that “the time of the occurrence of an accident within the meaning of
an indemnity policy is not the time the alleged wrongful act was committed, but is the
time when the complaining party was actually damaged.’” Shaver v. Insurance Co. of
North America, 817 S.W.2d 654, 657 (Mo. Ct. App. 1991) (quoting Kirchner v.
Hartford Accident & Indem. Co., 440 S.W.2d 751, 756 (Mo. Ct. App. 1969)). After
reviewing the terms of the relevant policies in light of this standard, we conclude that
the policies insure against the damages that occurred during the respective policy
periods, regardless of when the underlying cause of the injuries occurred.3 See Keene


      3
        We therefore reject Federated’s claim that the insurance policies are triggered
by the underlying cause of the damage to the Balke farm. Federated cites several cases
in support of this proposition. These cases hold that “it is more reasonable to evaluate
an occurrence as the cause of property damage rather than as the property damage
itself. In other words, analysis should focus on the underlying circumstances which
result in the claim for damages, instead of the items of the property damage.” Cargill,
Inc. v. Liberty Mutual Insurance Co., 488 F. Supp 49, 53 (D. Minn. 1979) (quotation
omitted); see also Kansas Fire and Cas. Co. v. Koelling, 729 S.W.2d 251 (Mo. Ct.
App. 1987); Kissell v. Aetna Cas. & Surety Co., 380 S.W.2d 497 (Mo. Ct. App. 1964).
Federated’s reliance on cases from other jurisdictions is misplaced, because Missouri
law clearly controls here. Morever, we reject Federated’s claim that Missouri law
mandates such an approach. Although we recognize that Missouri may apply a
simplified cause analysis to determine whether a single insurance policy covers a loss,
or to determine the coverage limits or applicable deductibles under a given policy, we
find no indication that this analysis applies to the circumstances involved in this case.
To the contrary, Shaver dictates that damages trigger insurance coverage under
Missouri law. 817 S.W.2d at 657. Accordingly, we must apply an “effects” rather
than a “cause” analysis.

                                          -6-
Corp. v. Ins. Co. of North America, 667 F.2d 1034, 1040 (D.C. Cir. 1981) (observing
that the language of similar insurance policies “clearly provides that an ‘injury,’ and not
the ‘occurrence’ that causes the injury, must fall within a policy period for it to be
covered by the policy”).

      Having thus concluded that the policies are triggered by the occurrence of
damages, not by negligent acts, we next address the timing of the damages. There are
multiple approaches to addressing this issue. For example,

      [i]f coverage is triggered at the time that personal injury or property
      damage becomes known to the victim or property owner, the approach is
      identified as the “manifestation theory.” If coverage is triggered when
      real personal injury or actual property damage first occurs, the approach
      is called the “injury in fact theory.” If coverage is triggered when the first
      exposure to injury-causing conditions occurs, then the court is said to
      have chosen the “exposure theory.” Finally, if coverage is triggered in a
      manner such that insurance policies in effect during different time periods
      all impose a duty to indemnify, then the approach is labelled a
      “continuous” or “multiple” trigger theory.

Dow Chem. Co. v. Associated Indem. Corp., 724 F. Supp. 474, 478-79 (E.D. Mich.
1989) (citations omitted) (emphasis in original).

        It is not entirely clear which of these approaches is appropriate under Missouri
law. Although we have previously predicted that Missouri would apply an exposure
theory of damages, Continental Ins. Co. v. Northeastern Pharm. & Chem. Co., Inc., 842
F.2d 977, 984 (8th Cir. 1988) (en banc), an argument can be made that an injury in fact
approach is more appropriate. Shaver, 817 S.W.2d at 657 (coverage triggered “when
the complaining party was actually damaged”); Independent Petrochem. Corp. v. Aetna
Cas. Insur. Co., 672 F. Supp. 1, 3 (D.D.C. 1986) (applying Missouri law). Because we
conclude that the obligations of both insurers are triggered under either theory of
liability, we need not determine which method is required under Missouri law.

                                           -7-
       Contrary to Federated’s repeated contentions, this case involves multiple, distinct
injures, Balke, 966 S.W.2d at 21, that occurred during multiple policy periods including
every year from 1985 through 1991. The record reflects that these injuries triggered
each policy under either an injury in fact or an exposure theory. We therefore agree
with the district court that both Federated and Nationwide are obligated to indemnify
CMEC for the damages that occurred at the Balke dairy.

       There remains the question of the extent of liability under the terms of the
policies. Missouri law is clear on this matter: insurance coverage restricted to an
occurrence during the policy period “limit[s] an insurance policy to injuries arising
during the policy period and . . . exclude[s] from coverage injuries which occur
subsequent to that period, even though the injuries may have been caused by acts done
while the policy was in effect.” Universal Reinsurance Corp. v. Greenleaf, 824 S.W.2d
80, 84 (Mo. Ct. App. 1992) (quoting Dennis Cain Motor Co. v. Universal Underwriters
Ins. Co., 614 S.W.2d 275, 277 (Mo. Ct. App. 1981)). Although each insurer is
therefore liable for injuries suffered during its coverage period, under Missouri law
neither can be held liable for injuries occurring during the other’s policy period.

       We agree with the district court’s conclusion that, in light of the applicable
statute of limitations, the $859,108 settlement represents only the damages incurred by
the Balkes from July 7, 1987, through December 31, 1991.

     We accordingly concur with the district court that “Federated must indemnify
CMEC for injuries suffered by the Balkes from July 7, 1987 to December 31, 1990,
and Nationwide must indemnify CMEC for damages sustained during 1991.”

                              D. Allocation of Damages

      Federated contends that the district court should have apportioned damages
pursuant to an injury in fact analysis rather than a time on the risk method. The record

                                           -8-
suggests, however, that the bulk of the damage incurred by the Balkes occurred during
Federated’s period of coverage. Thus, if damages are apportioned based the timing of
the actual injuries, Federated would likely bear even more responsibility for the Balke
settlement than under a time on the risk analysis. Federated appears to believe,
however, that the application of an injury in fact analysis in apportioning damages
would relieve it of all liability for the Balke settlement. This argument is foreclosed by
the Missouri Court of Appeal’s conclusion that this case involves multiple injuries that
occurred over the course of numerous years. Balke, 966 S.W.2d at 21. Because much
of this harm occurred during Federated’s coverage period, Federated cannot escape
responsibility for the Balke settlement through an injury in fact apportionment of
damages.

       The question remains whether the district court was correct in apportioning
damages based on the insurers’ time on the risk. The court considered utilizing an
injury in fact analysis, but concluded, given the complexities involved in determining
the precise timing of the multiple injuries suffered by the Balkes, that a time on the risk
analysis was appropriate. In these particular circumstances, we do not disagree,
particularly because the Missouri courts have resorted to a similar analysis in a
analogous situation. Continental Cas. Co. v. Medical Protective Co., 859 S.W.2d 789,
792 (Mo. Ct. App. 1993). We therefore affirm the district court’s allocation of
damages and the judgment against Federated in the amount of $517,526.92.

                             E. Affidavit of Tim Woods

      Finally, Federated challenges the district court’s consideration of the affidavit
submitted by Tim Woods, Nationwide’s legal counsel for specialty claims. We agree
with Nationwide that this argument is more properly styled, at least in part, as a




                                           -9-
challenge to the district court’s denial of Federated’s Rule 12(f)4 motion to strike the
affidavit. Because a district court enjoys liberal discretion under Rule 12(f), Stanbury
Law Firm, v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000), we review this claim for an
abuse of discretion. See id.; Chock v. Northwest Airlines, Inc., 113 F.3d 861, 863-64
n.3 (8th Cir. 1997). We find none here.

       Federated also argues that the affidavit was insufficient because it failed to fully
describe the provisions, exclusions, and definitions of Nationwide’s insurance policies.
This argument is without merit, however, in light of our interpretation of Missouri law.

      The judgment is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      4
      Federal Rule of Civil Procedure 12(f) states, in pertinent part, “. . . the court
may order stricken from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”

                                           -10-
