Continuous Trigger Theory Applied in Toxic Tort Case

 

 

 

In Polarome Intern., Inc. v. Greenwich Ins. Co, 2008 WL 5245554 (N.J.Super.A.D.), Polarome, the manufacturer of a chemical used as a butter flavoring, brought an action against the insurers which had issued its commercial general liability (CGL) policies, seeking a declaration that the insurers had a duty to defend and indemnify the manufacturer in product liability actions.

 

The underlying cases involved two individuals who were injured after inhaling diacetyl, a chemical distributed by Polarome and that was used as a butter flavoring in the food industry.

 

The lower court granted the insurers summary judgment, and the manufacturer appealed.

 

The Superior Court of New Jersey, Appellate Division, affirmed, holding that the liability insurers had no duty to defend or indemnify a policyholder for a toxic tort personal injury claim against the insured if the initial manifestation of the underlying disease predated their policies.

In making its decision, the court applied the “continuous trigger” theory for determining the occurrence of a bodily injury and ruled that the trigger ends at the time of initial manifestation of the disease. Under the continuous trigger theory, bodily injury occurs during each phase of environmental contamination: exposure, further progression of injury after exposure, and manifestation of disease.

 

The insurers maintained that they had no duty to defend or indemnify Polarome because in each instance, the injured party was diagnosed with his respective lung disease before their policy periods commenced.

 

Polarome argued that the duty to defend should also apply to policies issued after manifestation if there were allegations that the latent injury worsened during those policy periods, even in the absence of further exposure.

In upholding a lower court's decision, the court ruled that neither Greenwich Insurance nor Zurich had a duty to defend or indemnify Polarome, even though further progression of the disease may have occurred while the relevant policies were in effect.