Full opinion text
OPINION DIAMOND, District Judge. Plaintiffs commenced this action seeking indemnification under approximately 278 umbrella and excess policies of insurance for financial losses in excess of $593,118,-296.92, which plaintiffs incurred as a result of the settlement/satisfaction of nine civil suit judgements entered against Bessemer & Lake Erie Railroad Company (“B & LE”) based upon its participation in a twenty-year conspiracy to violate federal and state antitrust laws. A case management order was entered on January 14, 1997, which divided this action into four phases, the first of which was designated “discovery and dispositive motions.” Case Management Order of January 14, 1997 at 1(D)(1) (Document No. 100). The parties have completed all discovery pertaining to plaintiffs’ claims that coverage is afforded under the policies and defendants’ bases for denying those claims. Presently before the court are cross-motions for summary judgment. For the reasons set forth below, defendants’ motion will be granted and plaintiffs’ will be denied. Summary Judgment Fed.R.Civ.P. 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party’s claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant’s initial burden may be met by demonstrating the lack of record evidence to support the opponent’s claim. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992). Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial,” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In meeting its burden of proof, the “opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party “must present affirmative evidence in order to defeat a properly supported motion” and cannot “simply reassert factually unsupported allegations.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). Nor can the opponent “merely rely upon conelusory allegations in [its] pleadings or in memoranda and briefs.” Harter v. GAF Corp., 967 F.2d 846 (3d Cir.1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n. 12 (3d Cir.1990). If the non-moving party’s evidence merely is color-able or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (although court is not permitted to weigh facts or competing inferences, it is no longer required to “turn a blind eye” to the weight of the evidence). General Background Plaintiffs seek damages for breach of contract from each named defendant under the respective policies, subject to the monetary limits of those policies, together with pre-judgment and post-judgment interest. The alleged breach is defendants’ failure to indemnify plaintiffs for the liability arising from underlying third-party actions. The third-party actions followed the indictment of B & LE for a criminal violation of the Sherman Act and its subsequent conviction of the charged crime. On October 13, 1981, a federal grand jury indicted B & LE and other railroads for criminal conspiracy in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. On August 31, 1992, B & LE entered a plea of nolo contendere to the offense of conspiracy in restraint of trade as charged in the indictment. B & LE voluntarily entered the plea knowing it constituted a plea of guilt to the charges in the indictment and would result in a judgment of guilt as a matter of law. Transcript of July 26, 1982, Acceptance of nolo contendere Pleas in United States of America v. Bessemer & Lake Erie Railroad, Inc., et al., Criminal No. 81-396, United States District Court for the District of Columbia, at pp. 23-28, set forth in Volume I of Appendix to Defendants’ Motion for Summary Judgment (“Defendants’ Appendix”) at pp. 82-87. The entry of the plea admitted every essential element of the offense. United States v. Bessemer & Lake Erie Railroad Co., 717 F.2d 593, 597 (D.C.Cir.1983). It likewise barred any subsequent attack of the indictment on the merits and constituted an admission of the truth of all material factual allegations therein. Id. at 597 & 599. The indictment charged a multi-fac-eted conspiracy to eliminate potential competition in the transportation of iron ore which was mined in Minnesota, Wisconsin and Canada, shipped across the Great Lakes and transported by the railroads from docks on the southern shore of Lake Erie to inland steel mills in Western Pennsylvania, West Virginia, Ohio and Kentucky. Id. at 594-95. Between 1982 and 1984, five steel companies, three dock companies and five trucking companies filed civil actions against ten railroads involved in the conspiracy, including B & LE, in federal district courts in Pennsylvania, Ohio, New York and the District of Columbia. On April 17,1984, the Judicial Panel on Multi-District Litigation consolidated the ten actions for pretrial proceedings at “MDL No, 587” (captioned In Re Loiver Lake Erie Iron Ore Antitrust Litigation), and assigned the proceeding to the Honorable John P. Fullam of the United States District Court for the Eastern District of Pennsylvania. In May of 1989, Judge Ful-lam ordered the consolidated cases be tried as a consolidated action. The trial was bifurcated. The liability phase was tried between May 9 and June 18, 1989, and the jury returned verdicts against B & LE in nine of the actions. The damage phase was tried between June 26 and July 28,1989, to a separate jury, and it awarded substantial damages in eight of the actions. Judgments were entered on June 17, 1989, totaling $4,457,652,953.00, exclusive of interest, costs and attorneys’ fees. On February 27, 1991, Judge Fullam entered an opinion and order denying all post-trial motions except for one aspect of B & LE’s motion which challenged an item of damage claimed by one steel company. Final judgments were otherwise entered in accordance with the damage jury’s verdicts. See In re Lower Lake Erie Iron Ore Antitrust Litigation, 759 F.Supp. 219 (E.D.Pa.1991). Appeals and cross-appeals were taken. On May 27, 1993, the United States Court of Appeals for the Third Circuit substantially affirmed the district court. See In re Lower Lake Erie Iron Ore Antitrust Litigation, 998 F.2d 1144 (3d Cir.1993). B & LE’s petition for rehearing and suggestion for rehearing en bane were denied on July 26, 1993. Id. at 1185. The Supreme Court denied B & LE’s petition for writ of certiorari on January 24, 1994, and plaintiffs thereafter satisfied or settled the MDL 587 judgments. Plaintiff USX Corporation seeks indemnification under the insurance policies procured pursuant to its catastrophic liability insurance program for seven policy periods between May 12, 1977, and April 1, 1983. The May 12, 1977, through June 1, 1978, program included 5 layers of insurance providing $130 million of coverage in excess of a $50 million self-insured retention. The June 1, 1978, through June 1, 1979, program included six layers providing $150 million of coverage in excess of a $50 million self-insured retention. The June 1, 1979, through December 1, 1979, program included four layers providing $150 million of coverage in excess of a $50 million self-insured retention. The December 1, 1979, through December 1, 1980, program included six layers providing $275 million of coverage in excess of a $25 million self-insured retention. The December 1, 1980, through December 1, 1981, program included seven layers providing $275 million of coverage in excess of a $25 million self-insured retention. The December 1, 1981, through April 1, 1982, program included seven layers providing $325 million of coverage in excess of a $25 million self-insured retention. The April 1, 1982, through April 1, 1983, program included six layers providing $325 million of coverage in excess of a $25 million self-insured retention. See Joint Statement of Uncontested Facts (Document No. 427) (“Joint Statement”) at ¶ 20-26. Collectively, defendants are domestic and international insurers (or their predecessors, successors-in-interest or assumptive re-insureds, as appropriate) who issued or subscribed to the policies comprising the seven-year program. USX employed a commercial insurance brokerage service as its agent to procure the insurance in its catastrophic liability program. Employees of the insurance brokerage service worked closely with employees of USX’s risk management department to accommodate USX’s insurance needs. The policy providing for the initial layer of coverage during the first year was obtained in the London insurance market. USX provided significant amounts of underwriting data to certain underwriters in that market. Shortly after obtaining the first year of coverage, USX’s insurance broker prepared a memorandum reviewing the liability insurance policy form. USX thereafter continued to obtain a substantial portion of its catastrophic liability program insurance in the London market. In each of the seven periods, USX’s insurance coverage begins with a first-layer policy that contains the terms of and conditions for coverage. Each layer above the first layer consists of policies which follow the form of the first-layer policy, subject to any special terms or conditions of the individual policy. The first-layer policies generally are designated as “umbrella” policies and are, in all material respects, based upon a standard insurance form known as “the 1971 London umbrella wording.” This form was modeled after the 1966 standard form commonly used in the North American market. With the exception of some of the policies eompris-ing the 1982-1983 policy period, the first-layer policies were issued by London Market Insurers, which are certain underwriters at Lloyds’ London and certain other companies participating in the London insurance market (“the London Defendants”). In procuring the policies, USX sought to and did obtain the broadest casualty coverage available. The underlying self-insured retentions signified that the insurance was to provide coverage for catastrophic liability. The insurance policies include or incorporate by reference the following “Insuring Agreement:” COVERAGE— Underwriters hereby agree, subject to the limitations, terms and conditions hereinafter mentioned, to indemnify the Assured for all sums which the Assured shall be obligated to pay by reason of liability:— (a) imposed upon the Assured by law, or (b) assumed under contract or agreement ..., for damages on account of:— (i) Personal Injuries (ii) Property Damage (iii) Advertising Liability, caused by or arising out of each occurrence happening anywhere in the world. Joint Statement at ¶ 27. The key terms of the Insuring Agreement are as follows. The term “Occurrence” shall mean an accident, or a happening, or an event, or a continuous or repeated exposure to conditions, which unexpectedly and unintentionally results in a personal injury, property damage or advertising liability during the policy period. Joint Statement ¶ 28. The term “Personal Injuries” means bodily injury (including death at any time resulting therefrom), mental injury, mental anguish, shock, sickness, disease, disability, false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, discrimination, humiliation; also libel, slander or defamation of character or invasion of rights of privacy, except that which arises out of any advertising activities. Joint Statement at ¶ 29. The term “Property Damage” shall mean loss of or direct damage to or destruction of tangible property (other than owned by the Named Assured). Joint Statement at ¶ 30. The term “Advertising Liability” shall mean:— 1) Libel, slander or defamation; 2) Any infringement of copyright or of title or of slogan; 3) Piracy or unfair competition or idea misappropriation under an implied contract; 4) Any invasion of right of privacy; committed or alleged to have been committed in any advertisement, publicity article, broadcast or telecast and arising out of the Named Assured’s advertising activities. Joint Statement at ¶ 31. The term “Damages” includes damages for death and for care and loss of service resulting from personal injury and damages for loss of use of property resulting from property damage. Joint Statement at ¶ 32. Plaintiffs’ complaint avers and their pending motion for partial summary judgment seeks to establish that the outcome of B & LE’s underlying conspiratorial conduct constituted an occurrence under Pennsylvania law and the resulting liability reflects a covered form of damage/injury under each key term in the Insuring Agreement. Plaintiffs generally contend, inter alia, that the MDL 587 losses constitute (1) a form of economic discrimination within the scope of “discrimination” as used in the term “personal injuries” because the conspirators refused to establish lower rates for less expensive and time-consuming service; (2) a form of “unfair competition” which was committed in and arose out of B & LE’s “advertising activities” because the railroads’ tariffs were used as a means of implementing the conspiratorial agreement; and (3) a form of “loss of use” of tangible property because the MDL 587 plaintiffs were deprived of the ability to use equipment and assets which would have been used to compete with the railroads. Plaintiffs further contend that proper notice was given or that the lack of notice did not cause prejudice to the defendants. Plaintiffs further argue that the MDL 587 plaintiffs sustained a form of covered damage/injury during each policy period due to the non-linear, progressive nature of their injuries. Based on these general premises, plaintiffs argue that each defendant is obligated to indemnify USX for the losses arising from the MDL 587 judgments. Defendants generally contend that B & LE was not held liable for causing any injury/damage covered by the policies and plaintiffs’ attempts to recharacterize the actual liability determined by the MDL 587 juries is contrary to the undisputed facts and governing law. Beyond plaintiffs’ asserted failure to fit the underlying loss within the basic requirements of coverage, defendants contend that the antitrust liability, which was imposed for restraint of trade and attempted monopolization, epitomizes the essence of an intended and expected harm and a non-fortuitous loss, and any such loss is expressly precluded under the definition of an occurrence and is unin-surable as a matter of Pennsylvania public policy. Similarly, defendants assert that torturing the terms of the policies to permit recovery here would relieve plaintiffs of the financial consequences of B & LE’s illegal conduct and allow a monopolist to retain the benefits derived from participating in an antitrust conspiracy, a proposition which would offend both state and federal public policy. Finally, defendants argue that because plaintiffs failed to give notice of the MDL 587 litigation until after the Third Circuit affirmed the judgments against B & LE, defendants suffered prejudice as a matter of law, thereby precluding coverage on this independent ground as well. Overview of the MDL 587 Litigation The ten antitrust suits comprising the MDL 587 litigation each charged the railroads with entering into a conspiracy, formed in the mid-1950’s, to restrain trade in and monopolize dock handling, storage and transportation costs of shipping iron ore inland from the shore of lower Lake Erie. The conspiratorial agreement was a response of the railroads to a technological innovation in transporting ore across the Great Lakes which began to. develop prior to 1956. Most of the ore used in making steel in the multi-state region served by lower Lake Erie originated in mines in Michigan, Minnesota and Eastern Canada. The ore was shipped across the Great Lakes and unloaded at docks in Pennsylvania and Ohio. For years the prevailing method of transportation involved the shipment of bulk quantities of the ore, which was in an unprocessed, mud-like form.. Large transportation vessels known as “bulkers” transported virtually all the ore across the Great Lakes. The bulkers were unloaded by heavy cranes commonly known as “hu-letts.” A hulett unloaded the ore from the hold of a bulker using a clamshell-like claw that dipped into the hold, scooped up a load of the mud-like substance and moved it to the dock where it was loaded directly onto railroad cars or stockpiled at onshore storage areas. The docks used in this process were owned by the railroads and equipped with huletts. The rates for the various services at all of the railroad docks were identical and established pursuant to Interstate Commerce Commission (“ICC”) approved tariffs which specifically were exempt from antitrust scrutiny under § 5(a) of the Interstate Commerce Act (“ICA”), as amended by the Reed-Bullwinkle Act of 1948, 49 U.S.C. § 10701(a) (1949). Pursuant to that amendment, the ICC approved an agreement of the Eastern Railroads which established the Rate Bureau (the Coal, Coke and Iron Ore Committee). B &LE was a member of the Rate Bureau. All railroad action taken pursuant to that’ agreement was given § 5(a) immunity and conclusively presumed to represent reasonable rates and charges. Id. at 223-24. Private (ie., non-railroad) docks at the lower Lake Erie ports were not equipped with huletts and were unable to compete for ore traffic, which in turn gave the railroads a lawful monopoly over the unloading and land transportation of ore. In the early 1950s a new technology developed which enabled ore producers to process the ore into high-grade marble-sized pellets. The formation of ore into pellets permitted shipment of the ore in self-unloading vessels. These vessels were able to unload their cargo with an internally mounted conveyor belt. Following the enlargement of a particular lock on the Great Lakes, self-unloaders were able to carry substantially larger loads'of-ore than bulkers, were able to unload in less time and with a smaller crew and did not require any special equipment. The use of self-unloaders created the potential for non-railroad docks to compete as unloading sites and these docks potentially were able to store and ship ore at lower costs than railroad docks because the land-based unloading equipment and large work crews were not needed. Thus, self-unloaders and non-railroad docks could be used to compete directly with the railroads and this development also made possible the use of trucks as an alternative means of transporting the ore inland. ■ For years the railroads had controlled access to the unloading docks and provided inland rail, transportation of the ore. The self-unloader/non-railroad dock system threatened to compromise the railroads’ monopoly over inland transportation. The ability to use private docks created the option of hauling the ore by rail or truck to the inland steel companies, and this competition had the potential to produce significant saving to the steel companies. The MDL 587 plaintiffs’ central contention was that the railroads, perceiving the significant threat from the self-unloaders/non-railroad docks/trucking system, entered into an agreement designed to thwart the progress of the self-unloader technology in order to maintain their dominance in the market and protect their substantial investments in lake shore property and conventional unloading equipment. As early as 1956 high-ranking railroad officials convened and forged a planned course of action designed to circumvent the development of self-unloaders. The implementation of this agreement was accomplished by three separate means. Railroad officials orally agreed that leases of railroad docks or facilities were to be examined and modified to frustrate the efforts of non-railroad docks to handle ore from self-unloaders. The railroads thus either refused to sell or lease any property that could be used to establish a private dock or began to sell or lease property with express restrictions against such use. The railroads further agreed to keep dock-handling and shipment rates for self-un-loaders artificially high at railroad-owned docks and refused to recognize a discount rate for ore transported on self-unloaders, despite the reduced costs in providing such services. Finally, the railroads agreed among themselves to refuse to publish different (competitively priced) commodity line haul rates for hauling ore from private docks. The railroads converted their agreement into action to effectuate the goal of market preclusion. They used coercion to enforce adherence to the facets of the agreement and succeeded in restricting the lease and sale of railroad-owned dock property and boycotting non-railroad docks. These activities diminished the economic incentives to use self-unloaders and by impeding the development of a private dock system, the railroads succeeded in precluding direct competition from the trucking industry. The MDL 587 plaintiffs sued under Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2), Section 4 of the Clayton Act (15 U.S.C. § 15) and the Ohio Valentine Act, Ohio Rev’d Code §§ 1331.01-1331.99. In addition to other forms of injury, the steel company plaintiffs sought damages for lost savings which would have been realized had the railroads’ anti-competitive behavior not retarded the development and implementation of the self-un-loader technology. The steel companies identified five compensable forms of injury: (1) savings from lower dock handling rates from private commercial docks, (2) savings from railroad docks that would have been realized from the competition of private docks, (3) lower trucking rates for actual shipment, (4) savings from market-sensitive commodity line haul rates, and (5) inherent savings from the option to choose the most efficient and economical combination of transportation alternatives. The dock companies sought to recover the profits they would have realized had they been able to establish themselves in the market. The trucking companies likewise sought similar damages on the theory that had they not been precluded from entering the market, they would have established themselves and realized significant profits. B & LE sought to preclude or limit the recovery of damages based upon (1) its (and the other railroads’) entitlement to immunity under the ICA and the doctrine in Keogh v. Chicago & Northwestern Ry. Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922) and (2) the antitrust standing principles established in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). In Keogh, the Supreme Court held that private litigants cannot recover damages under the antitrust laws where the damages are based upon rates and charges approved by the ICC. Having established such rates and charges in accordance with the ICA, such rates presumptively are legal and a private litigant is precluded from attempting to prove that hypothetical lower rates would have been charged in the absence of asserted antitrust conduct and the acceptance of the established rates by the ICC. Through the Reed-Bullwinkle Act of 1948, Congress extended the railroads’ immunity to engaging in collective rate-setting activity. Thereafter, any railroad action undertaken pursuant to the rate bureau established by the authorized agreement of Eastern Railroads was immune from antitrust scrutiny. The MDL 587 juries were instructed fully on all immunity issues. The liability jury determined that B & LE had violated the antitrust laws through forms of conduct which were not immune. The damages jury calculated its awards based upon the railroads’ non-immune conduct. The Third Circuit ultimately concluded “that the district court correctly characterized B & LE’s anti-competitive activity as market preclusion, and Keogh’’s protective rule [could not be applied] to forbid recovery for the resulting economic" detriment.” 998 F.2d at 1159. The MDL 587' plaintiffs successfully demonstrated that the railroads conspired to protect their control over the ore transportation market and effectively retarded the entry of lower-cost competitors into that market. It was the railroads’ collective hindering of the development of the. lower-cost market which defined the MDL 587 litigation. The railroads’ concerted action was found to have thwarted competition by precluding the steel companies from utilizing alternative, lower-cost private docks, which in turn diminished the steel companies’ economic incentives to develop self-loaders. The natural consequences of these activities compelled the steel companies to continue to pay the rates lawfully established by the railroads. And, while the measure of damages began with the ICC-approved tariffs, the non-immune anti-competitive market preclusion orchestrated by the railroads distinguished the steel companies’ damage awards from those based on concerted rate-making activities protected by Keogh. Because the juries were instructed fully on the scope of the Keogh doctrine and found both the offensive conduct and the resulting damages to be beyond its scope, the steel companies’ damages were not based on activities undertaken to establish tariff rates approved by the ICC. B & LE also argued that the MDL 587 damage claims were precluded by the indirect purchaser doctrine established in Illinois Brick, as interpreted in Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573 (3d Cir.1979). Illinois Brick was a price-fixing case where the Supreme Court held that only the original purchaser who initially paid the inflated price could maintain an antitrust action. In Mid-West Paper, the Third Circuit applied the doctrine and held that only purchasers from a price-fixing conspirator sustained an antitrust injury and purchasers from non-conspiring competitors of the conspirators could not recover, even though the conspiracy may have enabled the independent competitor to charge higher prices due to an inflated market. Judge Fullam reasoned that the indirect purchaser doctrine did not bar recovery of the steel companies’ material-handling awards or the dock and trucking companies’ recoveries. He similarly reasoned that the inflated dock-handling charges were incurred by the steel companies as customers of the railroads and thus as direct purchasers. The inflated lake transportation charges, although less clear, also survived an Illinois Brick challenge because of the steel companies’ history of direct involvement in the ownership and control of ore transportation vessels. The Third Circuit upheld the steel companies’ damage awards against B & LE’s Illinois Brick challenge under a more complex and differently focused inquiry. It considered each component of the recovered damages to determine whether the injury had a causal relation to the antitrust violation, focusing on and balancing the consideration of (1) the causal connection between the violation and the harm and the intent of B & LE to cause that harm, (2) whether the injury was intended to be redressed by the antitrust laws, (3) the directness of the injury, (4) the existence of other direct victims and (5) the potential for duplicative recoveries or the recovery of damages which would require a complex apportionment analysis. The court reasoned that the steel companies’ lake transport savings awards were recoverable because the conspiracy took the form of and sought to effectuate a market exclusion, the transportation industry existed exclusively for the steel companies, the direct nature of the injury established a sufficient causal connection to the conspiracy, the injury was a type intended to be redressed by the antitrust laws and, while there were other direct victims and the potential for duplicative recoveries and complex apportionment problems, this component of the steel companies’ damages was measured by the difference between the amounts they actually paid to transport the ore and the lower prices they would have paid had the conspiracy not blocked implementation of the lower-cost system. Ascertaining this difference did not require undue speculation. It likewise upheld the steel companies’ recoveries for inflated dock handling charges against B & LE’s challenge of indirect injury, reasoning that although the dock companies were another direct victim of the conspiracy, the steel companies were awarded damages for the inability to utilize private docks and thus the damages arose from the conspiracy’s elimination of competition from those docks, not from the charges which might have been paid to the private docks. It similarly upheld the awards to the trucking companies, reasoning that the conspiratorial actions clearly were intended to inhibit competition by the trucking companies, a restraint against market entry precisely was the type of injury the antitrust laws were designed to prevent, and any difficulty in measuring damages was brought about by the railroads’ conduct. Overview of the Applicable Laxo At the core of the parties’ dispute are disagreements concerning the meaning and scope of the key terms in the Insuring Agreement. The interpretation of an insurance policy is a question of law for the court. Reliance Insurance Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.1997); Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563, 566 (1983). Construing an insurance policy requires the court to ascertain the intent of the parties as manifest by the language used in the written agreement. Riccio v. American Republic Ins. Co., 550 Pa. 254, 705 A.2d 422, 426 (1997). The policy is to be read as a whole and the intent of the parties is to be ascertained from the entire instrument. Riccio, 705 A.2d at 426 (citing Smith v. Cassida, 403 Pa. 404, 169 A.2d 539, 541 (1961)). “When the policy language is clear and unambiguous, the court must give effect to the language in the contract.” Id.; The Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.1999) (citing Standard Venetian Blind Co., 469 A.2d at 566). Where, however, the policy is ambiguous, the clause giving rise to the ambiguity must be construed in favor of the insured. The Medical Protective Co., 198 F.3d at 103; Reliance Ins. Co., 121 F.3d at 900-01; Riccio, 705 A.2d at 426; Standard Venetian Blind, 469 A.2d at 566. In ascertaining the intent of the parties the court is to interpret the policy with an eye toward avoiding ambiguities and giving effect to all of the provisions in the policy. The Medical Protective Co., 198 F.3d at 103 (iciting Little v. MGIC Indemnity Corp., 836 F.2d 789, 793 (3d Cir.1987)); Con-trans, Inc. v. Ryder Truck Rental, Inc., 836 F.2d 163, 169 (3d Cir.1987) (a policy is to be interpreted in a manner which gives meaning to all of its terms when read as an entirety and phrases are not to be considered in isolation but by a reading in harmony with the rest of the contract). Ambiguities generally take two forms: patent and latent. Sunbeam Corp. v. Liberty Mutual Ins. Co., 740 A.2d 1179, 1185 (Pa.Super.1999). Patent ambiguities appear on the face of the contract from the use of defective, obscure or insensible language. Id. (citing Z & L Lumber Co. v. Nordquist, 348 Pa.Super. 580, 502 A.2d 697, 700 (1985)). A latent ambiguity arises from extraneous or collateral facts that render the meaning of contract language uncertain even though in a general sense the language appears clear and unambiguous as written. Id. In ascertaining whether a term of the policy is ambiguous, the issue is whether the questioned term or phrase as examined in the context of the entire policy is “reasonably susceptible of different constructions and capable of being understood in more than one sense.” The Medical Protective Co., 198 F.3d at 103 (quoting Reliance Ins. Co., 121 F.3d at 900). A term or phrase is ambiguous if “reasonably intelligent” people “on considering it in the context of the entire policy would honestly differ as to its meaning.” Northbrook Ins. Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d Cir.1982). Determining whether specific policy language is susceptible of different reasonable constructions is not to be done in a vacuum. Madison Construction Co. v. Harleysville Mutual Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). Instead, “contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.” In performing the inquiry the court is not permitted to distort the meaning of the language or employ a strained contrivance in order to create an ambiguity. Id. (citing Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 663 (1982)); Northbrook Ins. Co., 690 F.2d at 372 (a court may not twist the language or rewrite the policy to create doubts where none exist); McNally v. Republic Ins. Co., 718 A.2d 301, 303 (Pa.Super.1998) (“we will not torture the clear and unambiguous language of [a] policy so as to create [an obligation] that does not otherwise exist”). Words of common usage in an insurance policy are to be given their natural, plain and ordinary meaning. Riccio, 705 A.2d at 425 (citing Easton v. Washington County Ins. Co., 391 Pa. 28, 137 A.2d 332, 335 (1957)); Madison Construction Co., 735 A.2d at 108. These principles preclude a finding of ambiguity based on the contention that a particular term is so broad that it virtually has no limit in its application. Madison Construction Co., 735 A.2d at 107. Instead, the inquiry must be “guided by the principle that ambiguity (or the lack thereof) is to be determined by reference to a particular set of facts” and thus the court is to focus only on the factual scenario at hand. Id. Throughout the undertaking the language employed by the parties is the “polestar” of the inquiry. Id. at 106; see also Seiko v. Home Ins. Co., 139 F.3d 146, 151 (3d Cir.1998) (language of policy remains primary consideration and it is to be construed according to its plain and ordinary meaning) (citations omitted). “[T]he parties’ reasonable expectations are to be the touchstone of any inquiry into the meaning of an insurance policy.” Bensalem Township v. International Surplus Lines, Ins. Co., 38 F.3d 1303, 1309 (3d Cir.1994). Although the language of the policy normally provides the best indication of the parties’ reasonable expectations in forming the contract, the totality of the insurance transaction must be examined to ascertain the reasonable expectations of the insured. Reliance Ins. Co., 121 F.3d at 903. In ascertaining the intent of the parties, consideration must be given to any reasonable expectation the insurer created in the insured during the negotiation process. The Medical Protective Co., 198 F.3d at 106. As a result even the most clear and unambiguous provisions of a policy will not bind an insured where an insurer improperly has created a reasonable expectation in the insured that coverage will exist for a particular type of loss. The Medical Protective Co., 198 F.3d at 106-07. Absent sufficient justification, however, “an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous.” Frain v. Keystone Ins. Co., 433 Pa.Super. 462, 640 A.2d 1352, 1354 (1994). A substantial aspect of the parties’ dispute also concerns the appropriate scope of review in evaluating the liability arising from the MDL 587 litigation. Plaintiffs contend that the entire underlying course of conduct for which coverage is sought must be examined to determine whether any facts therein create a scenario which would trigger the defendants’ contractual obligations. Plaintiffs specifically argue that it is the facts alleged in the underlying complaint which establish whether a policy’s coverage is triggered and it is the construction of those facts which controls rather than the formal theory of liability or label placed on the advanced cause of action. At various times plaintiffs argue that this court’s review includes an assessment of the testimony and evidence submitted by B & LE in the MDL 587 litigation and whether any aspect of the entire course of conduct conceivably could fall within the scope of the Insuring Agreement. Defendants contend that the duty to indemnify necessarily is measured by the material facts actually established in the MDL 587 trial and this court need look no further than the jury instructions given and special interrogatories rendered therein to determine unequivocally that the losses are not covered. The insuring agreement creates a contract of indemnification. Plaintiffs’ proposed scope of review confuses the standards used to determine whether a contingent duty to indemnify is created by an underlying complaint (thus triggering the duty to defend in a standard liability policy containing such a duty) and those employed to determine whether there is an actual duty to indemnify. It is a well-accepted principle that an insurer’s duty to defend is “conceptually distinct from and legally independent of its duty to indemnify, that is, its obligation to pay a judgment.” Sherman v. Ambassador Ins. Co., 670 F.2d 251, 258-59 (D.C.Cir.1981); C.H. Heist Caribe Corp. v. American Home Assur., 640 F.2d 479, 488 (3d Cir.1981) (emphasizing distinction between duties to defend and indemnify and recognizing that duty to defend necessarily'- is a broader duty). “It follows that there may be a duty to defend without a duty to indemnify.” The Frog, Sivitch & Manufacturing Co., Inc. v. The Travelers Ins. Co., 193 F.3d 742, 746 (3d Cir.1999). The cases are legion which hold that where a liability policy contains an obligation to defend, that obligation is triggered if the underlying complaint avers any facts that potentially could support a recovery under the policy, and once that obligation is triggered, the insurer has a duty to defend until the claim is confined to a recovery that the policy does not cover. See, e.g., General Accident Ins. Co. of America v. Allen, 547 Pa. 693, 692 A.2d 1089, 1095 (1997); The Frog, Switch and Manufacturing Co., 193 F.3d at 746. The duty to defend thus carries with it a conditional obligation to indemnify in the event the insured is held liable for a covered claim. Id. The duty to defend and the contingent duty to indemnify both flow from a determination that the underlying complaint triggers coverage; this determination is not based solely on the particular cause of action pleaded, but “[ijnstead it is necessary to look at the factual allegations contained in the complaint.” Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 745 (1999); C.H. Heist Caribe Corp.,, 640 F.2d at 483 (the factual allegations of complaint must be reviewed to determine whether terms of policy potentially apply). The averments of the underlying complaint must be “liberally construed with all doubts as to whether the claims may fall within the policy coverage to be resolved in favor of the insured.” Roman Mosaic & Tile Co. v. Aetna Cas. & Sur. Co., 704 A.2d 665, 669 (Pa.Super.1997) (citing Cadioallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A.2d 484 (1959); The Frog, Switch and Manufacturing Co., 193 F.3d at 746). In contrast, the actual duty to indemnify stands on separate footing. An insurer is required to indemnify only where the insured is held liable for a claim actually covered by the policy. Allen, 692 A.2d at 1095 (citing Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir.1985)); see also Winner International Corp. v. Continental Casualty Co., 889 F.Supp. 809, 816 (W.D.Pa.1994) (“While an insurer must defend its insured if the complaint alleges conduct that potentially falls within the scope of the policy, it must indemnify its insured only if Lability is found for conduct that actually falls within the scope of the policy.”) (citing Allstate Ins. Co. v. Brown, 834 F.Supp. 854, 857 (E.D.Pa.1993) (there is no duty to indemnify “if the conduct for which the insured is found liable does not come within the scope of the policy”)) (citing Air Products & Chemicals v. Hartford Accident & Indemnity Co., 707 F.Supp. 762, 776 (E.D.Pa.1989)). Thus, the duty to indemnify does not arise until the liability imposed against the insured is conclusively established. C.H. Heist Caribe Corp., 640 F.2d at 483; Enron Oil Trading & Transportation Co. v. Underwriters of Lloyd’s of London, 47 F.Supp.2d 1152, 1161 (D.Mont.1996) (actual indemnification is dependent upon whether the insured is found liable for a covered claim). Where the underlying action has been resolved by a jury, the insurer’s duty to indemnify is determined by the material facts established at trial. Enron Oil, 47 F.Supp.2d at 1161 (citing American Motorists Insurance Co. v. General Host Corp., 946 F.2d 1482, 1488 (10th Cir.1991)). Where an insured seeks indemnification for underlying liability established by a judgment, the precepts of finality and estoppel are brought into play. The doctrine of res judicata binds parties and their privies to an action in which a judgment was rendered. Clinchfield Railroad Co. v. United States Fidelity & Guaranty Co., 160 F.Supp. 337, 340 (E.D.Tenn.1958). Where a party has had a full and fair opportunity to litigate a particular issue, he is not, ordinarily, entitled to relitigate the matter. Id. (citing in support 50 C.J.S. Judgments § 763 (party judicially is estopped to relitigate issues in suit to which he was a party)). Thus, in actions between indemnitors and indemnitees, the indemnitee is subject to the burdens, as well as the benefits, of the rules of res judicata with regard to matters determined in the third-party action and is es-topped from showing that the prior judgment was based upon an incorrect finding of fact. Id. at 340-41 (citing, inter alia, Restatement of Law, Judgments, § 107(h) and Crawford v. Pope & Talbot, Inc., 206 F.2d 784, 795 (3d Cir.1953); Fidelity & Casualty Co. of New York v. Federal Express, 136 F.2d 35, 39 (6th Cir.1943)). These wellsettled principles extend to specific judicial determinations and conclusions about the legal import of the material facts, even though “the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Federated Department Stores v. Moitie, 452 U.S. 394, 398-99, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (citing Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927) (erroneous conclusion reached by appellate court is not subject to collateral attack) and Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532, 76 L.Ed. 1054 (1932) (emphasizing “conclusive character of judgments”)). Pennsylvania law recognizes the specific application of the rules pertaining to the finality of judgments in the context of insurance coverage disputes and the Pennsylvania Supreme Court long ago recognized that “a judgment recovered against an insured by an injured party is conclusive on the issues there determined in a subsequent proceeding by the injured party or by the insured against the insurance carrier for indemnity.” Renschler v. Pizano et al. (State Automobile Ins. Ass’n., Intervenor), 329 Pa. 249, 198 A. 33, 35 (1938). On this score “there is complete unanimity among the authorities in declaring that the plaintiff, in an action to recover indemnity, is bound by all findings and conclusions without which the judgment could not have been rendered.” Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 372 (1951). It has been recognized in Pennsylvania for more than 150 years that in such circumstances an insured is not at liberty “to prove that the recovery [against him] was wrong.” Id. (quoting Weckerly v. German Lutheran Congregation, 3 Rawle 172, 180 (Pa.1831) (Justice Kennedy)). The rationale for these principles is plain enough. In such a case the indemnitee himself relies on the judgment against him in the earlier action as a basis to his right of recovery over, and with the judgment he must take for better or worse the adjudicated facts on which the judgment rests. Id. at 373. A recent application of these principles is found in Unigard Security Insurance Co. v. Murphy Oil USA Inc., 331 Ark. 211, 962 S.W.2d 735 (1998). There, the insured, Murphy Oil USA, Inc., filed suit against a number of carriers seeking coverage under various comprehensive general liability policies for a judgment awarding compensatory and punitive damages. Murphy Oil leased an island in the Mobil River in Alabama and operated a petroleum-storage facility on the island. During the 24-year lease Murphy Oil’s operations resulted in routine spills of petroleum products during cleaning and maintenance of the storage tanks and loading the petroleum into transport vehicles. In addition, three major spills occurred in 1970, 1975 and 1982. Id. at 736. These spills were caused by over-estimations of the capacity of the tanks into which the petroleum products were being pumped. Id. at 737. Murphy Oil returned possession of the island to the lessor in 1985 and did not test for possible contamination or engage in any clean-up efforts. Four years later, the lessor learned of the contamination and notified Murphy Oil, which refused to assist in the clean-up. The lessor commenced an action in 1990 seeking compensatory and punitive damages under the theories of negligence, breach of lease and trespass. The negligence claim alleged that Murphy Oil had failed to use reasonable care in preventing the release of the petroleum products and was negligent in its use, operation and/or occupancy of the premises. The breach-of-lease claim alleged that Murphy Oil breached the lease by failing to surrender the premises in the same condition it was in at the commencement of the lease, based on a provision in the lease which required Murphy Oil to “quit and surrender the premises hereby demised in as good state and condition as reasonable usage thereof will permit.” Id. The trespass claim alleged Murphy Oil had interfered with the lessor’s rights in the property and the trespass had been accomplished by malice, fraud or oppression. The negligence action was dismissed as barred by the statute of limitations and the breach of contract and trespass claims were submitted to a jury. The jury found Murphy Oil had breached its lease, which in turn caused the contamination of the island, and awarded $3.4 million in compensatory damages. The jury further found that Murphy Oil had committed a trespass and although it did not award compensatory damages for the trespass, it did award $4.6 million in punitive damages upon a finding that the trespass had been accompanied by malice, fraud or oppression. Murphy Oil sought indemnification under various policies which obligated the insurers “to indemnify the Assured for all sums the Assured shall be obligated to pay by reason of liability imposed upon the Assured by law ... for damages ... on the account of ... property damage.... ” Id. at 739. The Supreme Court of Arkansas refused to construe the breach of contract liability as a legal obligation to pay damages “on the account of’ property damage. It explained: The coverage question thus turns on the nature or type of liability that Murphy Oil incurred in the underlying Alabama suit. If the underlying liability was for damages imposed “on account of’ or “because of’ accidentally caused “property damage,” then there is potential coverage under the policies. If the underlying liability was for damages imposed for some other reason, then there is no potential coverage. ^ V 'i' It is obvious to us that the Alabama jury, considering the instructions it received from the District Court and its answers to the interrogatories, made the award for compensatory damages “on account of’ or “because of’ Murphy Oil’s breach of its lease, not on account of any property damage that resulted in Murphy Oil’s operations on the island. The basis of Murphy Oil’s liability for compensatory damages was simply its failure to honor its covenant to “quit and surrender the premises hereby demised in as good state and condition as reasonable usage thereof will permit.” Murphy Oil’s liability for compensatory damages, therefore, did not arise from conduct on the part of Murphy Oil that injured or damaged any property. The case would arguably be different, of course, had the jury based its award of compensatory damages on the negligence claim originally brought by the [Lessor]. As mentioned, however, that claim was dismissed under the statute of limitations and never reached the jury. • Murphy Oil, 962 S.W.2d at 740. Thus, it is the actual basis for liability in the underlying action which determines whether there is a duty to indemnify, not whether the underlying course of conduct involved historical facts which could be marshaled to support a covered claim. As explained below, an application of the above principles demonstrates that the MDL 587 loss is not within the scope of the Insuring Agreement. Analysis A. Property Damage Plaintiffs assert the MDL 587 liability constitutes “property damage” because the liability was imposed for loss of use of tangible property, including loss of use of docks, trucks and self-unloading vessels. They similarly assert that the liability was imposed for a diminution of value in such property. Relying on Sola Basic Indus., Inc. v. U.S. Fidelity & Guaranty Co., 90 Wis.2d 641, 280 N.W.2d 211 (1979) and Lucker Mfg. v. The Home Ins. Co., 28 F.3d 808 (3d Cir.1994), plaintiffs advance the following argument. The typical property damage provisions in standard comprehensive general liability (“CGL”) policies do not require physical damage to tangible property, but instead provide coverage for damages awarded solely for diminution in the value of tangible property as well as the loss of use of such property. The typical “loss of use” clause in CGL policies was amended in 1973 to reflect coverage for loss of use of tangible property which had not been physically injured or destroyed, and a commentary bulletin accompanying the revision indicated that under the typical 1966 standard policy coverage for such losses always was intended. The MDL 587 claimants were injured by a delay in the utilization of self-unloaders. This resulted in the inability of the trucking and private dock companies to compete in the market, and the inability of the steel companies to use (1) self-unloaders, (2) private docks for unloading, and (3) the combination of private docks and trucks for inland transportation. Plaintiffs accordingly argue that the liability was imposed for economic losses caused by a loss of use of tangible property and as such it is a form of covered property damage. Defendants contend that coverage is provided only for loss of use of or diminution in value in property resulting from actual property damage and the liability did not result from an actual injury to any tangible property. Defendants further argue that the damages were awarded solely for lost profits, and such losses cannot be construed as a loss of use of property within any reasonable construction of the language at issue. The MDL 587 liability was not imposed “on account of ... property damage .... ” The liability reflected awards for lost savings and profits caused by the lack of competition and the inability of the dock and trucking companies to gain a foothold in the market. Plaintiffs’ attempt to re-characterize this liability as a form of property damage fails for a number of reasons. First, the liability was not imposed for damages on account of “the loss of or direct damage to or destruction of tangible property” within the meaning of the Insuring Agreement. When the policies were purchased the established reasonable expectation was that where the insured’s conduct did not affect the physical ability to use a third-party’s property, there was no property damage to or loss of use of the third-party’s property under a policy which requires “injury to or destruction of tangible property.” See McDowell-Wellman Engineering Co. v. Hartford Accident and Indem. Co., 711 F.2d 521, 526 (3d Cir.1983) (citing, inter alia, Yakima Cement Products Co. v. Great American Ins. Co., 93 Wash.2d 210, 608 P.2d 254, 258-59 (1980) (same)). It also was the reasonable expectation that under a policy which covers “damages for loss of use of property resulting from property damage,” there must be property damage before “there is coverage for any loss of use the damage caused.” Imperial Cas. & Indem. Co. v. High Concrete Structures, Inc., 858 F.2d 128, 136 (3d Cir.1988). In McDowell-Wellman, the insured built a ore bridge for a steel company that was used to supply raw materials to two blast furnaces. The bridge subsequently collapsed. The steel company sought damages for the repair and replacement costs and lost profits caused by additional costs in maintaining the blast furnaces while the repairs were being made. The insured sought coverage under the theory that the business interruption loss constituted loss of use or diminution in the value of the blast furnaces. The lost production revenue was held not to constitute either type of loss because there was no injury to or destruction of the third-party’s tangible property. Instead, the loss arose from the loss of use of the insured’s product, the ore bridge. Because the blast furnaces remained operable and there was no form of damage to tangible property beyond the insured’s product, there was no covered form of property damage and a fortiori there could be no loss of use or diminution in value therefrom. Here, there was no loss of, direct damage to, or destruction of, tangible property forming an essential element in or a substantial aspect of the MDL 587 plaintiffs’ recoveries. Each MDL 587 plaintiffs tangible property remained operable for all intended physical and natural uses to which the property could be put. The dock companies were at all times able to use their property as commercial docks and the trucking companies were at all times able to use their trucks to provide transportation services. The trucking and dock companies sought lost profits that they would have made had they been able to establish themselves as competitors and reap the benefits of the additional business. The steel companies were at all times able to use their production equipment and merely sought lost savings from the reduced prices which competition would have produced. Thus the losses did not reflect compensation for some direct impact on particular tangible property, but instead were based upon various assumptions about what would have occurred if the market would have developed by natural economic incentives. Under these circumstances the principles of McDowell-Wellman demonstrate that the loss was not a covered form of property damage. See also Lucker Manufacturing v. The Home Ins. Co., 818 F.Supp. 821, 827 (E.D.Pa.1993) (“McDowell-Wellman plainly illustrates what is meant by ‘loss of use,’ in a typical CGL policy. Both the district court and the Third Circuit found that there was no ‘loss of use’ because the blast furnaces were capable of operating and producing steel as intended, despite the collapse of the ore bridge.”), aff'd on other grounds, 23 F.3d 808 (3d Cir.1994). Plaintiffs’ reliance on Sola Basic and Lucker is misplaced. Those cases involved situations where property damage to or caused by the insured’s product gave rise to a loss of use of a third-party’s property. In Sola Basic, the failure of the insured’s product, a transformer, rendered a third-party’s blast furnace completely inoperable. As a result, the third party acquired alternative power and sought to recover the costs thereof from the insured. In determining that there was coverage for the complete interruption of operation, the Supreme Court of Wisconsin surveyed the persuasive authority from various jurisdictions and noted that the court in Hamilton Die Cast, Inc. v. U.S. Fidelity & Guaranty Co., 508 F.2d 417 (7th Cir.1975), held that damages for loss of investment, anticipated profits and good will are not recoverable from the mere inclusion of a defective component part where no physical damage to other property results therefrom. And although the Sola Basic court questioned the justification for continuing to require actual physical injury to tangible property in light of subsequent authority from an intermediate Illinois Appellate Court, the court also emphasized that the recovery in Sola Basic was for a complete loss of use of the third-party’s property and did not represent lost profits, but instead measured the diminution in value of the plant caused by the additional costs incurred while the malfunctioning transformer was being replaced. Accord Continental Casualty Co. v. Gilbane Building Co., 391 Mass. 143, 461 N.E.2d 209, 213 (1984) (“Tangible property rendered useless is injured and hence covered, since the definition of damages includes ‘loss of use of property resulting from property damage.’ ”) (emphasis added) (citing 3. R. Long, The Law of Liability Insurance, App. B, § 6 (1981)). Lucker involved the issue of whether a clause providing for the “loss of use of tangible property that has not been physically injured” covered the costs of correcting a defective component part which had been designed and was to be incorporated into a product which had not yet been manufactured. The court opined that the plain language of the clause covered an interruption of income caused by a wrongful act not accompanied by physical injury and further explained: The loss of a non-physical use of a product, such as offering it for sale, should be considered a “loss of use” and ... the decreased value of a product because of loss of customer acceptance of the product is a “loss of use” within the meaning of the standard CGL policy. Lucker, 23 F.3d at 816. Thus the complete loss of a product made for a particular purpose caused by a change in the customer’s acceptance of it constituted a loss of use of property that had not been physically injured. The court went on to hold, however, that at the time customer acceptance was lost, the component part still was being designed and thus it was a form of intangible property which had “no intrinsic marketable value of its own,” similar to “investments,” “good will” or “economic interest” in the form of prof