Union Ins. Co. v. Travelers Indem. Co. of Conn. (350 F. Supp. 3d 563, 2018)

HENRY T. WINGATE, UNITED STATES DISTRICT JUDGE

Before this court are the opposing motions for summary judgment filed by the plaintiff and the defendant. The Travelers Indemnity Company of Connecticut and its subsidiaries filed a motion for summary judgment under the auspices of Rule 56 of the Federal Rules of Civil Procedure . In their motion these defendants contend that there are no material facts in dispute and, as a matter of law, it owes no funds to the plaintiff, Union Insurance Company. Travelers seeks a declaratory judgment in its favor barring Union's claims against it. [doc. no. 31].

Union Insurance Company ("Union") also filed a motion for summary judgment, asserting that Union is entitled to judgment in its favor, as a matter of law, and asks the court to issue a declaratory judgment that Travelers is required to pay the amounts for which Union has sued. [doc. no. 33]. The motions of both parties, in reliance upon Rule 56 of the Federal Rules of Civil Procedure, contend that there are no genuine issues of material fact.

At the heart of this dispute is Union's effort to obtain contribution from Traveler's for a claim paid by Union, and for which Travelers was partly liable. Travelers admits that it has some liability under the policy in question, but disagrees that it owes any amount over what it has already agreed to pay, the amount Travelers claims to be its proportionate share of a $1 million dollar policy limit.

FACTUAL AND PROCEDURAL BACKGROUND

I. PARTIES AND JURISDICTION

Plaintiff Union is an Iowa insurance company with corporate headquarters and its principal place of business located in Urbandale, Iowa. Union acknowledges that it is a successor in interest to Great River Insurance Company, the company that wrote the polices at issue here -- policies insuring Custom Aggregates & Grinding, Inc. ("Custom"), against liability claims.

Defendants Travelers Indemnity Company of Connecticut, Fidelity & Guaranty Insurance Underwriters, Inc., and United States Fidelity & Guaranty Company are subsidiaries of the Travelers Companies, Inc., which is a Connecticut insurance holding company with its corporate headquarters and principal place of business located in Hartford, Connecticut. The Traveler's Entities will be referred to collectively as "Travelers".

As authorized by Title 28 U.S.C. § 1332 (a), this court has subject matter jurisdiction over plaintiff's claims and related motions based on diversity of citizenship. The parties are completely diverse and the amount in controversy exceeds $75,000, exclusive of interest and costs, as Union's complaint demands declaratory judgment regarding an alleged debt of $291,450. Venue is proper pursuant to 28 U.S.C. § 1391. In this diversity action, the substantive laws of the State of Mississippi apply. Klaxon Co. v. Stentor Elec. Mfrg. Co. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). See also Boardman v. United Services Auto, Ass'n , 470 So.2d 1024, 1032 (Miss. 1985) ; Guaranty Nat. Ins. Co. v. Azrock Industries, Inc. , 211 F.3d 239, 243 (5th Cir. 2000).

II. STIPULATED FACTS

On August 16, 2004, Clifford Gatlin ("Gatlin"), who had been employed as a sandblaster and foundry worker, filed a lawsuit in the Circuit Court of Hinds County, Mississippi. Gatlin alleged that his work environment had been contaminated with silica dust, causing him to develop silicosis, a serious health condition caused by exposure to inhaling silica dust over a period of time. Gatlin sued, in Hinds County Circuit Court, his employer and other defendants, including Custom Aggregates & Grinding, Inc. ("Custom"). Custom was one of the companies that had supplied to Gatlin's employer sandblasting material that allegedly contained the injurious silica.

During the relevant period during which Custom was supplying materials to Gatlin's employer and during which time Gatlin was an employee there, Custom was insured by the following four companies: 1) Great River Insurance Company (whose successor in interest is Union); 2) The Travelers Indemnity Company of Connecticut; 3) Zurich North America; and 4) Kemper Insurance Company (collectively, "Insurers"). These insurers had policies in effect with Custom at different times over the relevant period. None was in effect concurrently. Each annual policy, regardless of which insurer issued it, carried primary liability limits of One Million Dollars.

All four of these insurers entered into a joint defense agreement whereby each insurer agreed to contribute to the legal fees and expenses incurred by Custom in defense of the Gatlin lawsuit. The four companies agreed to a formula, which was included in the joint defense agreement, that allocated a percentage for each insurer to pay based on the proportionate length of time of coverage that each had provided to Custom during the relevant period (also referred to as "time on the risk"). The continuing tort, it was determined, spanned approximately 104 months. The Insurers agreed to a percentage allocation of costs/liability as follows: Great River/Union 22.86%; Kemper 22.86%; Zurich 5.71%; and Travelers 48.57 %. The various subsidiaries and affiliates of the Travelers Companies had insured Custom for the longest period, and therefore, Travelers was obligated to pay the largest part of the settlement or verdict.

On July 13, 2007, the Insurers were informed that trial was set for October 15, 2007. With mediation scheduled for September 27, 2007, and the trial less than a month away, Travelers and its adjusters, together with Union and the other carriers insuring Custom, pursued a potential settlement, with each carrier attempting to obtain authority for a total from all carriers of 1.5 million dollars. Travelers was a participant in this effort and on September 24, 2007, the adjuster for Travelers, Claudette Savwoir, informed the other insurers that she had requested authority for her share of up to 1.5 million dollars from her superiors. This, according to Union, was proof that up to that point, Travelers considered a settlement above one million to be within policy limits.

Travelers though, contends that around the time of mediation, Travelers and the other insurers discussed several legal arguments and defenses that had not been, but needed to be, developed. This, Travelers submits, is proof that Travelers did not believe a settlement valuation above $1,000,000 was reasonable.

The parties participated in mediation on September 27, 2007, but were unable to settle the claims against Custom. Custom's co-defendant, Precision Packaging, settled with the plaintiffs at the mediation, on confidential terms. At the conclusion of the mediation, Custom was the only remaining defendant.

On September 28, 2007, Travelers' adjuster, Claudette Savwoir authored an email to defense counsel, Forman, Perry, Watkins, Krutz & Tardy, regarding several legal defenses and arguments that Travelers was pushing and that Travelers said should have been developed a long time ago. On October 1, 2007, Claudette Savwoir and Gerald Begley, in-house counsel for Travelers, called Custom's representative Suzy McDonald and advised it was Traveler's position that only $1 million in total indemnity was available to Custom for the Gatlin lawsuit.

On October 2, 2007, Custom's defense counsel made to Gatlin an offer of $1,000.000, which was rejected. Negotiations continued over the next several days. On October 3, 2007, a member of the defense team from Forman, Perry, Watkins, Krutz & Tardy emailed Travelers' counsel Gerald Begley that Custom had actually sold a lot more sand to Gatlin's employer than plaintiff knew about and that Gatlin's demands would go higher once this error was realized. On October 4, 2007, with the trial set for eleven days later on October 15, 2007, Travelers issued a "Policy Limit Notification Letter" to Custom, reiterating its position that a single per occurrence limit of one million dollars total was available from all carriers collectively, and informing all involved that Travelers would only offer 48.57 % of one million dollars or $485,700. While Travelers agreed to continue to honor its defense obligations, Travelers stated it did not agree to indemnify Custom for any amount above its 48.57 % share of the $1 million dollar limit.

On October 9, less than a week from the date of trial, which was set for October 15, settlement was reached between Custom and Gatlin, for the sum of $1.75 million dollars. Although the carriers had earlier agreed on the percentage each should pay, they disagreed on the combined policy limit and, therefore, on the sum to which each insurer's percentage should be applied. Union, Zurich and Kemper considered that the entire $1,750,000.00 settlement agreement was within combined policy limit. Travelers took the position that the carriers' liability was limited to a total of one million dollars. Travelers, then, instead of contributing a 48.57 % share of the 1.75 million dollar settlement amount, for a total of $849,975.00, limited its settlement contribution to $485,700.00, or 48.57% of its one million dollar policy limit, a difference of $364,275.00.

Kemper paid its proportionate share of the 1.75 million dollars under the formula. Union and Zurich, though, paid more than what they believed to be the just shares they owed pursuant to the allocation agreement. According to Union's amended complaint [doc. no. 8 at pp. 5-6], these two carriers did this "[t]o consummate the settlement agreement and to avoid the pending trial with its attendant risk to the insured ..." Defense counsel had informed the carriers that Custom could be exposed to as much as a $5 million to $10 million dollar liability. Union asserts that these additional payments were not voluntary, and were made under protest and with reservation of rights against Travelers.

The settlement agreement was paid as follows:

Great River, predecessor in interest to Union $691,500 Kemper $400,050 Zurich $172,750 Travelers $485,700

Union contends that what should have been paid is as follows:

Great River, predecessor in interest to Union $400,050 Kemper $400,050 Zurich $ 99,925 Travelers $849,975

Settlement was funded and consummated, and the Gatlin litigation was dismissed in Hinds County Circuit Court by final judgment with prejudice on April 6, 2009. Travelers contends that Union, Zurich and Kemper made the decision to negotiate above $1,000,000 and that Travelers did not consent to the decisions being made during the settlement negotiations. Union, on the other hand, claims that Travelers was kept informed by emails throughout the negotiations. In any event, when the settlement was reached on October 9, 2007, all parties were aware of Traveler's position that it would only be responsible for $485,700.

III. PROCEDURAL HISTORY

Union, the Plaintiff herein, filed a Complaint for Declaratory Judgment [Docket No. 1] with this Court on May 8, 2009 and, with leave of the court, an Amended Complaint for Declaratory Judgment [Docket No. 8] on August 21, 2009. The Amended Complaint asks this Court to "declare the appropriate method in Mississippi for allocation of insurance coverage for a continuing tort for which the occurrence took place over a span of years which involved insurance policies provided by multiple insurance companies." [Docket No. 8 at p. 7].

On August 30, 2010, the Defendant, Travelers, filed a Motion for Summary Judgment [Docket No. 31]. Union also filed its Motion for Summary Judgment [Docket No. 33] on that same date. This court has conducted hearings and conferences on the parties' opposing motions, and has requested and received additional briefing and proposed findings of fact and conclusions of law. The parties have also submitted a joint stipulation of facts. The Court must now consider these cross motions.

LEGAL STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) ; Copeland v. Nunan , 250 F.3d 743 (5th Cir. 2001) citing Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex at 322, 106 S.Ct. 2548. The substantive law establishes those elements on which a plaintiff bears the burden of proof and only facts relevant to those elements are considered for summary judgment purposes. Id.

Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for facts demonstrating a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002) ; SEC. v. Recile , 10 F.3d 1093, 1097 (5th Cir. 1993) ; Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant "but only when both parties have submitted evidence of contradictory facts." Little , 37 F.3d at 1075. When such contradictory facts exist, the court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

LEGAL ANALYSIS

I. TRAVELER'S MOTION FOR SUMMARY JUDGMENT

When cases are brought to federal courts on diversity grounds, state substantive law applies. James v. State Farm Mut. Auto. Ins. Co. , 743 F.3d 65, 69 (5th Cir. 2014) (citing Erie R.R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ). See also Boyett v. Redland Ins. Co. , 741 F.3d 604, 607 (5th Cir. 2014) (court held that "when subject matter jurisdiction is based on diversity, federal courts apply the substantive law of the forum state"). This court, then, must apply the substantive laws of the State of Mississippi in making its decision.

A. Voluntary Payment Doctrine

Travelers, in its motion for summary judgment, asserts that the payments made above $1,000,000 for settlement of the Gatlin litigation, were 'voluntary payments' and Union cannot look to Travelers for recompense. Accordingly, this Court first must look to whether Union's payment toward the settlement of the Gatlin case was a voluntary payment. If the payment was voluntary, Union is not allowed to recoup the purported "excess" monies it paid in settlement of that lawsuit and the court need not inquire further. Summary Judgment would then be granted in favor of Travelers. "[A] voluntary payment cannot be recovered back ..." Genesis Ins. Co. v. Wausau Ins. Co. , 343 F.3d 733, 736 (5th Cir. 2003).

By contrast, if the purportedly "excess" payment made by Union was not voluntary, this court must proceed to its next inquiry- whether the $ 1.75 million dollar settlement amount exceeds the maximum aggregate liability amount for all four insurers combined and, if so, what amount, if any, is Travelers required to pay to Union? If either question cannot be resolved without deciding issues of material fact, the case must be submitted to a fact-finder. Both sides, however, contend that there are no material issues of fact to adorn this issue.

A major case which discusses the voluntary payment doctrine is Genesis Ins. Co. v. Wausau Ins. Co. , decided by the Fifth Circuit Court of Appeals. There, two insurers, Genesis Insurance Company and Wausau Insurance Company (hereafter "Genesis and Wausau"), agreed to pay for the defense and expenses of their insured, The President Casino (hereafter "President"). A customer had been seriously injured on the property of President by a casino-owned shuttle being driven by a casino employee. Both the automobile liability policy issued by Genesis and the premises liability policy issued by Wausau were implicated. Genesis Ins. Co. v. Wausau Ins. Co. , 343 F.3d 733 (5th Cir. 2003).

President and Genesis contended that their contributions to the settlement in that case had not been voluntary, but were the product of compelling circumstances created by Wausau. Wausau, they argued, by notifying the other companies of its intention to deny coverage with respect to a premises liability claim less than a month and a half before trial, had deprived both President and Genesis of the ability to mount an adequate defense. They claimed, therefore, they had been forced into participating in the settlement. The district court had disagreed, holding that, as a matter of law, a "lack of timely notice" does not shield them from the voluntary payment doctrine.

On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the district court's decision that Wausau's conduct did not compel President and Genesis to "throw their hats into the settlement ring." Genesis at 738. The appellate court amplified that the voluntary payment doctrine requires: (1) that there be no prior agreement by the parties to litigate coverage following settlement (e.g., parties agree that one will pay but they reserve the right to resolve coverage issues later); and (2) payments must not be made by virtue of legal obligation, by accident/mistake or made under compulsion. Genesis at 738 (citing McDaniel Bros. Constr. Co., Inc. v. Burk-Hallman Co. , 253 Miss. 417, 175 So.2d 603, 605 (1965) ).

Not all pressure for payment amounts to compulsion, the court said, citing 16 Lee R.Russ. Couch on Insurance § 223.28 (3d ed. 2003).

Where a person pays an illegal demand, with full knowledge of all the facts which render the demand illegal, without an immediate and urgent necessity to pay , unless it is to release his or her person or property from detention or to prevent an immediate seizure of his or her person or property, the payment is voluntary. It is only when, in an emergency for which a person is not responsible, the person is compelled to meet an illegal exaction to protect his or her business interest that he or she may recover the payment, but if, with knowledge of the facts, that person voluntarily takes the risk of encountering the emergency, the payment is voluntary and may not be recovered.

66 Am.Jur.2d § 109 (emphasis added) as quoted in Genesis at 739.

This dilemma, the Fifth Circuit said in Genesis , first, lacks the sense of immediacy often accompanied by compelled payments, and secondly, "the stakes, in the event that President and Genesis refused to participate in the settlement, were of an insufficiently dire magnitude to justify finding that their settlement contributions were compelled." Genesis at 739. By way of examples, the Genesis Court cited to Mobile Telecomm. Technologies Corp. v. Aetna Cas. and Sur. Co. , 962 F.Supp. 952 (S.D. Miss. 1997) and Alcoa Steamship Co. v. Velez , 285 F.Supp. 123, 125 (D. Puerto Rico 1968) In Mobile Telecomm. , the district court found there was no compulsion where the insurer had a choice between making payments on its insured's $2 million legal bill or awaiting coverage determination and possibly paying an additional amount for the insured's interim financing. On the other hand, in Alcoa Steamship Co. , the district court held that the employer's payment of a workmen's compensation insurance premium was compelled, when the employer was faced with the alternative of losing all coverage. Id. at 125.

Much like the plaintiff in the Genesis case, Union claims that Travelers' eleventh hour notice of limitations of coverage and the risk of exposing the insured to a much higher jury verdict compelled Union's action to settle. Genesis , however, stands for the proposition that even when the time of the trial is close or when the other insurer does not give timely notice of its intent to deny coverage, an insurer is not compelled to settle. Id. , 343 F.3d at 738 As Travelers points out, the Genesis case supports its contention that Union was not compelled to make the payment that it did to settle the Gatlin lawsuit.

In Genesis , the Fifth Circuit recognized that there was a dearth of Mississippi case law defining "under compulsion", and stated that the Court had to be guided by fact scenarios to reach the ultimate answer in the various cases presenting the "under compulsion" question.

Since Genesis was decided, more jurisprudence has been developed on the issue of voluntariness and contribution, especially by the Mississippi Supreme Court. After Genesis was decided by the Fifth Circuit Court of Appeals, the Mississippi Supreme Court, in 2009, decided Guidant Mutual Ins. Co. v. Indemnity Ins. Co. of North America , which addressed the voluntary payment doctrine. The Guidant case involved a volunteer fire fighter who had caused an accident while driving his personal vehicle on the way to fight a fire. He was a volunteer for the Marshall County, Mississippi, Fire Department. His auto insurer, Guidant Mutual Insurance Company ("Guidant") and Indemnity Insurance Company of North America ("INA"), the business automobile insurer for Marshall County, Mississippi, disputed which of them was the primary insurer. Guidant Mutual Ins. Co. v. Indemnity Ins. Co. of North America , 13 So.3d 1270 (Miss. 2009).

INA refused to participate in settlement negotiations despite being notified of the ongoing conversation, and while being asked to do so by Guidant. When INA refused to contribute to a settlement, Guidant settled and paid the claim, then sued INA for contribution. INA contended that Guidant had made a voluntary payment pursuant to the volunteer payment doctrine and thus could not recover any contribution from INA. Guidant. v. Indemnity , 13 So.3d 1270 (Miss. 2009).

Mississippi's highest court disagreed, holding that Guidant was entitled to move forward with its claim of contribution against INA. Guidant v. Indemnity , 13 So.3d 1270, 1280 (Miss. 2009). Where an insurer makes a settlement owed, at least in part, by another, state law should not reward the insurer that refuses to participate in the settlement. The court continued, stating that INA was liable to the insurer, which properly undertook a burden of settlement, or defense, for contribution up to its stated limits of liability, if Guidant could prove it was legally liable to settle, and that the amount it paid was reasonable. Guidant v. Indemnity , 13 So.3d 1270, 1280 (Miss. 2009) (citing State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co. , 255 So.2d 667 (Miss. 1971) ).

The Mississippi Supreme Court's disposition in Guidant , was controlled by State Farm Mutual Automobile Insurance Co. v. Allstate Insurance Co. , 255 So.2d 667 (Miss. 1971). In State Farm , the Court stated:

The majority of cases now recognize the undesirability of rewarding the insurer which refuses to honor its contractual obligations, and hold that payment by an insurer which properly undertakes a burden of settlement or defense does not render it a volunteer, not entitled to recover.

Id. (quoting 8 Appleman on Insurance § 4913, 398).

In State Farm , the Mississippi Supreme Court considered a case where an automobile owner had two insurance policies in effect. State Farm investigated the accident, and after determining that its insured would be liable for all damages and injuries, State Farm then made a demand on the other insurer, Allstate, to contribute to a settlement. Allstate refused. After negotiating and settling with all parties, State Farm thereafter sued Allstate for one-half of the $2,380.00 amount paid by State Farm in total settlement of all claims.

In that suit, Allstate responded that State Farm had been a volunteer as to the payment of $1,190.00, one-half of the total settlement, because State Farm's contract of insurance contained an 'other insurance' clause. That clause, contended Allstate, provided that in the event there is another insurer against the same loss, State Farm would be liable for no more than its proportionate share, based on the relative policy limits of the two companies. In that litigation, the two insurers had equal liability limits, so each would have been responsible for one-half of the loss. If State Farm was not contractually obligated to pay but one-half of the total, Allstate reasoned, the other half it paid was purely voluntary.

The Mississippi Supreme Court disagreed, stating that Allstate had lost sight of its obligation to its insured, as stated in its own policy. The Court there stated that both insurance companies "had entered into solemn contracts for a premium to defend the insured ... against any and all claims, and to act in his [the insured's] best interest in negotiating and settling all claims made against him." That duty, the Court said, "transcends any hypertechnical right of either insurer to pay only in strict accord with the 'Other Insurance' clause of each contract." State Farm v. Allstate at 669. The court continued, "[s]urely, Allstate should not be allowed to take advantage of its own wrong. Surely it should not be rewarded for breaching its contract with its insured by refusing to defend him in any manner." Id. at 669.

Guidant , continuing this mindset, established that, provided the amount is within policy limits, a payment is not voluntary if the insurer was legally liable to settle and the amount it paid was reasonable. Id. at 1280.

Union argues that in the instant case, its contractual obligation to defend Custom created a legal liability to settle because the insurance contract implicitly requires that Union place Custom's best interests before its own. Union also points to Travelers' unwillingness to provide sufficient funds to reach a settlement agreement as a breach of Travelers' duty to act in the best interest of the insured. Union compares Traveler's conduct to INA's refusal to defend or contribute to the settlement in the Guidant case.

Travelers says its conduct is different from that of INA in the Guidant case. Explains Travelers, INA (a) did not participate in negotiations, (b) discontinued paying legal defense costs and (c) refused to pay any part of the settlement. Travelers states it: (a) paid its share of the legal defense of Custom; (b) participated in settlement negotiations up until a week before the trial date; and (c) tendered what it contended was its proportionate share of the settlement.

Union submits a counter argument, pointing to a federal district court case that was reconsidered based on the Guidant decision as evidence that the Guidant decision should control here and allow for contribution. In Travelers Property Casualty Co. of America v. Federated Rural Electric Ins. Exchange , Travelers sued Federated for contribution after Travelers paid a settlement in a wrongful death case against the two insurance companies' mutual insured. Travelers v. Federated , Civ. Action No. 3:08-cv-83 DPJ-JCS, 2009 WL 2900027 (Sept. 3, 2009). In that case, Federal District Court Judge Daniel P. Jordan III, originally found that Travelers was "a volunteer for purposes of the settlement funds based on the Fifth Circuit's holding in Genesis that the mere "payment under 'protest' or accompanied by a unilateral reservation of rights will not escape the application of the volunteer doctrine." Id. at 14.

Approximately one week after the district court's ruling in favor of Federated Electric in Travelers v. Federated , the Mississippi Supreme Court handed down its decision in Guidant. The district court reconsidered its ruling in Travelers Property Casualty v. Federated Rural Electric , based on the Guidant decision. Judge Jordan reversed his prior decision based on a policy exception to the voluntary payment doctrine first articulated by the Mississippi Supreme Court in State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co. and then re-affirmed in the Guidant decision. The District Court described this exception as "a policy that reduces gamesmanship among carriers at the expense of injured parties and insureds." Id. at 20.

In Guidant , remember, the Mississippi Supreme Court held that Guidant was entitled to contribution from INA if Guidant could prove that "it was legally liable to settle" and that the amount paid to the plaintiffs was reasonable. Guidant Mutual Insurance Company v. Indemnity Insurance Company , 13 So.3d 1270, 1280 (Miss. 2009) (hereafter Guidant I ). In Guidant I , The Mississippi Supreme Court reversed the Circuit Court of Marshall County, Mississippi and remanded the case. On remand, the Circuit Court Judge for Marshall County granted summary judgment to Guidant on the contribution issue, allowing Guidant to collect contribution from INA. INA appealed and that case of Indemnity Insurance Co. of North America v. Guidant Mutual Insurance Co. , 99 So.3d 142 (Miss. 2012) (hereafter referred to as Guidant II ) was decided by the Mississippi Supreme Court.

In Guidant II , the Mississippi Supreme Court held that Guidant could recover contribution from the county's carrier, INA, only to the extent that settlement payment exceeded the firefighter's primary coverage limits. In Guidant II , the court reiterated its holdings in previous cases that an insurer must act in the best interest of the insured. State Farm , 255 So.2d at 669. An insurer has a duty to protect the interests of its insured, "which includes the duty to settle claims within the policy limits on objectively reasonable terms." Jordan v. U.S. Fid. & Guar. Co. , 843 F.Supp. 164, 171 (S.D. Miss. 1993) (citing Hartford Accident & Indemnity Co. v. Foster , 528 So.2d 255,282 (Miss. 1988) ) ("in the context of possible excess exposure and the insured's demand that the case be settled within the policy limits, the insurer has a duty to accept an objectively reasonable settlement demand"). In addition to the requirement that an insurer protect the interests of its insured, this Court recognizes that the law and public policy favor the settlement of disputes. Sneed v. Ford Motor Co. , 735 So.2d 306, 312 (Miss. 1999).

The Mississippi Supreme Court, in Guidant II , went on to define what was meant by "legally liable to settle" as used in Guidant I. Legally liable to settle, the Court said, meant that the insurance company seeking contribution must prove that it had a legal duty to settle, or at least a legal duty to consider the insured's best interest and to make an honest evaluation of a settlement offer within the policy limits.

The Court of Appeals for the Fifth Circuit, applying Mississippi law, examined this issue of the voluntary payment doctrine in 2016. In Southern Insurance Co. v. Affiliated FM Insurance Co. , the court was dealing with what it termed a "years-long stare down between two insurers which covered the same property and risk but for difference insureds ..."

Southern Insurance Co. v. Affiliated FM Insurance Co. , 830 F.3d 337, 340 (5th Cir. 2016). Southern Insurance Co. (hereinafter "Southern") provided coverage for the Ogletree House, a building leased from the University of Southern Mississippi by the Alumni Association (hereinafter "association"). The house was also covered under the University's policy with Affiliated FM Insurance Co., (hereinafter "Affiliated"), which covered multiple buildings under a policy with a blanket limit of $500 million dollars.

When the Ogletree house was damaged by a tornado, Southern refused to pay for repairs to the house, claiming, inter alia , that the university and not the alumni association, was obligated to pay for all repairs, as contemplated by the lease. Affiliated paid the university for repair costs for the house. Affiliated stated it was in the best interest of the university for it [Affiliated] to make payment. Affiliated then reserved the right to pursue recovery of the payments from Southern.

Among the arguments Southern made to the court was that Affiliated could not recover from Southern because Affiliated's payment was "voluntary." The Court of Appeals held that Affiliated's payment to the university was not voluntary "because it was a contractually - obligated payment between insurer and insured." Citing Guidant I , the court reiterated that under Mississippi law, a volunteer is "[a] stranger or intermeddler who has no interest to protect and is under no legal or moral obligation to pay." Guidant Mutual. Ins. Co. v. Indemnity. Ins. Co. of N. Am. , 13 So.3d 1270, 1279. Affiliated was obligated under its policy to provide coverage for the house to its insured, the university. Nonpayment under that policy could have exposed Affiliated to potential liability. Affiliated acted pursuant to its duty to pay; thus, it cannot be considered a volunteer. Guidant , 13 So.3d at 1279 ; State Farm , 255 So.2d at 669 ; see also St. Paul Fire & Marine Ins. Co. v. State Volunteer Mut. Ins. Co. , No. Civ. A. 2:97CV47-D-B, 1998 WL 173222, at *2 (N.D. Miss. 23 Feb. 1998) (in subrogation context, insurer who was legally obligated to make payments was not a "mere volunteer"), aff'd 212 F.3d 595, 2000 WL 423419 (5th Cir. 2000) (unpublished.); and Gray Properties, LLC v. Utility Constructors, Inc. , 168 So.3d 1164, 1167 (Miss. Ct. App. 2014) (voluntary payor is a stranger or intermeddler with no interest to protect and no obligation to pay). Cf. Mississippi Farm Bureau Casualty Insurance Co. v. Amerisure Insurance Co. , 2013 WL 286364 (S.D. Miss. Jan. 24, 2013) (unpublished) (insurer had no contractual obligation to defend, thus payment was voluntary).

Colony Insurance Co. v. First Specialty Insurance Corp. , 2017 WL 470902 *4 (S.D. Miss. Feb. 3, 2017) is of interest. The district court held that where the insurer consistently claimed that the purported insured was not covered under its policy, the insurer acted as a voluntary payor in contributing to the settlement and could not recover from the other insurer. The case was appealed to the Fifth Circuit Court of Appeals. Colony Insurance Co. v. First Specialty Insurance Corp. , 726 Fed. Appx. 992 (5th Cir. 2018). The federal appellate court, recognizing that the Mississippi Supreme Court had not addressed this issue, certified the question to the Supreme Court of Mississippi. The Fifth Circuit did, though, reiterate that Mississippi's voluntary payment doctrine does not bar an insurer from recovering a settlement payment made under "compulsion" or as a result of a settlement-related "legal duty".

At the time of this writing, the Mississippi Supreme Court had not rendered its decision on the matter. Colony Insurance Co. v. First Specialty Ins. Co. , 2018-FC-00574-SCT.

In Southern v. Affiliated , the Court discussed some of the cases in which payments were found not to be voluntary.

Courts analyzing the doctrine have concluded that payments were not voluntary in a variety of circumstances. See Guidant , 13 So.3d at 1279-80 (settlement payment on behalf of insured with whom insurer had contractual obligation to defend not voluntary); State Farm , 255 So.2d at 669 (co-primary insurer with "solemn obligation" to defend insured and make settlement payments not acting voluntarily); Travelers Prop. Cas. Co. of Am. v. Federated Rural Elec. Ins. Exch. , C.A. No. 3:08:CV83-DPJ-JCS, 2009 WL 2900027, at *6 (S.D. Miss. 3 Sept. 2009) (interpreting Guidant to "suggest that if the party seeking contribution establishes its duty to pay, it may then seek contribution for the portions of the settlement it paid on the other carrier's behalf", where two insurers "provided coverage for th[e] same risk").

Id. at 348.

The insurers in the instant case, including Union, are not strangers to the transaction, and, thus, cannot be considered volunteers under Mississippi law, provided the settlement was within the policy limits and the settlement amount was reasonable. This court now undertakes to determine whether the settlement amount was reasonable.

In Guidant II , in evaluating the reasonableness of the settlement, the court noted that Guidant presented ample evidence, through affidavits, correspondence, interrogatories and deposition transcripts, that the settlement amount was reasonable. In that case, the injuries sustained by the plaintiffs were quite serious. Based on the plaintiffs' injuries and medical expenses, lost wages and the blindness to one plaintiff that resulted from the car wreck, a jury verdict could have exceeded the policy limits in that case.

In the case sub judice , the plaintiff in the underlying case, Gatlin, sustained extremely serious injuries, and extraordinary medical expenses, including the cost of a double lung transplant, the cost of which was in excess of a half million dollars, such that a jury could have exceeded not only the $1 million that Travelers contends was the maximum aggregate policy limit covering Custom, but in the opinion of the defense attorneys a jury verdict could have exceeded the 1.75 million dollar settlement amount. Plaintiff's expert report opined that Gatlin's damages were significantly in excess of the $1.75 million settlement amount. According to the estimates of the defense attorneys retained by the insurance companies, the value of the case was between $5 million and $10 million dollars, which would also have exceeded the $4 million amount that Union claims was the maximum aggregate policy limit. Given these undisputed facts, this court is persuaded that the settlement amount was reasonable.

The court must next look to whether the settlement amount of $1.75 million dollars was within policy limits. This court is persuaded that it was, based on the reasons more thoroughly discussed later in this opinion. Therefore, Union's payment was not voluntary, and Union may seek contribution for its overpayment from Travelers.

B. Breach of contract by Insured

Travelers argues that it is not obligated to indemnify Custom, its insured, because Custom breached its insurance contract with Travelers by settling without Travelers' consent. Travelers' insurance contract includes a "right to defend," clause which stipulates that Travelers has the "right and duty to defend any 'suit' seeking those damages" (referring to bodily injury), and a consent-to-settlement clause stating that "no insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent." Travelers asserts that Customs' breach alleviates its liability under the contract. Travelers further states that at the time of settlement, certain strategies had been unexplored that would have lowered the amount of liability down to the one million dollar mark, rendering the $1.75 million settlement as excessive.

Travelers claims that because it notified all insurers and Custom prior to the settlement that it would only be liable for $485,700, it did not consent to any settlement requiring a higher payment amount. Travelers argues that in the October 4th letter it sent to Custom, copying the other insurers, Travelers stated that it would pay no more than its pro rata share of the policy limits ($485,700), but would continue paying its portion of defense costs and aggressively defend Custom at trial. Travelers also discussed trial strategies and what it considered to be unexplored defenses with Custom's defense attorneys.

St. Paul Property and Liability Ins. Co. v. Nance , a Mississippi case, is cited by Travelers to show that settlement without permission of the insurer is a breach of contract, and that Custom settled without its permission, thereby breaching its contract with Travelers and relieving Travelers of its payment obligation. In that case St. Paul's insured, who had been injured in an automobile accident, settled with the tortfeasor (for partial payment of damages) in exchange for release of the tortfeasor's liability. The insured then collected from his own insurer under his uninsured motorist coverage. The Mississippi Supreme Court said in St. Paul , the insured's settlement and release of the tortfeasor "is a breach of the insured's contract with its UM [uninsured motorist] carrier, precluding recovery on the UM contract." Id. , 577 So.2d 1238, 1242 (Miss. 1991) (citing United States Fidelity & Guaranty Co. v. Hillman , 367 So.2d 914 (Miss. 1979) ). Unlike the instant case, however, the insured in the St. Paul case settled with the tortfeasor without ever notifying the insurer or giving the insurer an opportunity to participate in negotiations or settlement. Travelers, in the case sub judice , was notified of the settlement negotiations and participated in settlement efforts until shortly before trial.

Additionally, the St. Paul case was a subrogation case, not one for contribution. In a subrogation case, the insurer steps into the shoes of the insured, and has no more rights than the insured. St. Paul was denied recovery because it only had the same rights as the insured, and the insured had already released the tortfeasor. Id. at 1242. In the instant case, Union brings this lawsuit based on its own right to contribution. St. Paul Fire and Marine Ins. Co. v. Nance is not helpful to Travelers' position.

Travelers also cites two Fifth Circuit cases based on Texas law for the proposition that an insurer may escape liability on the basis of a settlement-without-consent clause. The first of these is Motiva Enter., LLC v. St. Paul Fire and Marine Ins. Co., 445 F.3d 381, 386 (5th Cir. 2006). The Court there said, it is not clear whether under Texas law, an insurer must demonstrate prejudice before it can avoid its obligations under a policy where the insured breaches a consent-to-settle provision. In that case, though, the Court found that the insurer did actually suffer prejudice. In Motiva , the insurer was originally involved with settlement negotiations, but was excluded from those negotiations before they were concluded. Id. , 445 F.3d 381, 386 (5th Cir. 2006). The Motiva court found that exclusion from the settlement process prejudices the insurer as a matter of law, and allowed the insurer to escape liability for that reason. Id. , 445 F.3d at 386. The same cannot be said in the instant case. Union was a participant in the negotiations until almost the very last moment, and cannot show how it was prejudiced.

Travelers also cites the Fifth Circuit case of Ideal Mut. Ins. Co. v. Myers , for the principle that an insured is required to cooperate with the insurer and the insured cannot make any agreement which would operate to impose liability upon his insurer or would deprive the insurer of the use of a valid defense. In that case, the insured was the estate of an aircraft pilot who had been killed in a plane crash. Id. , 789 F.2d 1196, 1202 (5th Cir. 1986), The insurer was denying coverage to a passenger who died in the plane crash with the pilot, contending that certain conditions of the policy had been violated. Nevertheless, the pilot's estate settled the wrongful death action that had been brought by the passenger's estate, without obtaining consent to settle from the insured. The Ideal Court found that the actions of the pilot's estate in settling with the passenger's estate did not discharge Ideal from its obligations under the policy, because the actions in settling the claim did not prejudice the insurance company nor deprive it of any policy defense. This case is not helpful to Traveler's position.

Travelers also references a recent 5th Circuit case based on Louisiana law which cited the Motiva Enteprises case, and ruled that the breach of the consent-to-settle clause in an insurance contract caused prejudice to the insurer and relieved the insurer's obligation to pay under the insurance contract. Danrik Constr. Inc. v. American Casualty Co. of Reading Pa. , 314 Fed. Appx. 720, 724 (5th Cir. 2009) (not for publication). A construction contractor caused damage on construction projects and requested liability coverage from insurer. Insurer began adjustment process and agreed to pay an amount less than plaintiffs demand for settlement. Contractor settled with plaintiffs without insurer's consent, then sued the insurer for payment. The Court said the Motiva case "suggests that whether a court will excuse a breach of a consent-to-settle clause depends on the circumstances of the situation" and in the instant case there was no "time is of the essence" situation that would excuse contractor's settlement without consent. Id. at 724.

These cases indicate that whether a breach of the consent to settle clause provides a defense against the contract for Travelers hinges on 1) whether Travelers had a meaningful opportunity to participate in the settlement negotiations, 2) if it suffered prejudice based on the breach, and 3) if exigent circumstances existed that would cause the court to excuse a breach of a consent-to-settle clause by the insured.

It appears from the record that Travelers had a full opportunity to participate in the settlement negotiations. A reading of the emails between all insurers, Custom and the attorneys, indicates that further pressing of a settlement of $1,000,000 was futile because of the plaintiff's position. Plaintiff had rejected the last offer of $1 million dollars. The last demand by Plaintiff was for $4 million dollars. Custom, the attorneys and other insurers also seemed to think a jury trial would yield a much higher judgment against Custom. This seems like settlement negotiations in which Travelers had an opportunity to participate, but its assessment of the settlement value diverged too greatly from all other parties for them to come to an agreement with Travelers. These circumstances weigh in favor of a determination that a Mississippi court would decide that a breach of the consent-to-settle clause, if there was a breach, is excused because of the exigent circumstances.

Union argues that Travelers' consent to settlement was implicit in Travelers' payment of almost half a million dollars toward the settlement. Union also contends that despite Travelers eleventh-hour withdrawal from the settlement negotiations, Travelers had led Custom and the other insurers to believe it would participate by explicitly pursuing a $1,500,000 settlement authorization. After Travelers stated it would only pay $485,700, Custom and the other insurers continued to copy Travelers on emails concerning the progression of the settlement negotiations. Finally, Union argues that the very short time to trial and the attorneys' high valuation of the claim if it went to a jury, obligated Union to put the insured's best interest above its own and settle the case. (Custom's defense attorneys at Forman, Perry, Watkins Krutz & Tardy valued the claim at between $5,000,000 to $10,000,000.)

This court finds that the alleged breach of contract by Custom is not a defense to Travelers' contribution to Union. This is a defense that could, arguably, be asserted as a basis for failing to indemnify Custom, but Travelers makes no claim here against its insured. If Travelers really thought it could escape liability because of the failure of the insured to obtain consent, it would have refused to pay any amount toward the settlement, or would seek contribution from its insured. This, Travelers has not done.

C. Combined Policy Limits

Key to Travelers' position is the assertion that the maximum liability owed under all of the policies combined was only one million dollars. Travelers contends that Gatlin's injuries constitute only a single occurrence, and the policies each have a per occurrence limit of $1 million dollars. This issue is more thoroughly discussed in this court's analysis of Union's motion for summary judgment.

This court is not persuaded to grant Traveler's motion for summary judgment. As previously discussed, Union's payment was not a 'voluntary payment' as Travelers contends; and Union is entitled to seek contribution from Travelers for its overpayment, provided the $1.75 million dollar settlement amount was reasonable and within policy limits. This court has already determined that the settlement amount was reasonable. The only remaining inquiry, therefore, is whether the settlement amount was within policy limits. This will be more thoroughly examined in this court's analysis of Unions motion for summary judgment.

I. UNION'S MOTION FOR SUMMARY JUDGMENT

A. Voluntary Payment Doctrine and Agreement to Litigate

Union has also filed a motion for summary judgment [Docket No. 33], basing its request for judgment as a matter of law on many of the same arguments that are outlined in Travelers' motion for summary judgment, but urging different conclusions. First, Union argues that the voluntary payment doctrine does not apply to its payment.

Union correctly argues that Mississippi recognizes that one insurance carrier, like Union, which overpays its portion of a settlement in order to protect a mutual insured, like Custom, can seek contribution from the underpaying carrier. Union cites Guidant Mutual Ins. Co. v. Indemnity Ins. Co. of North America , 13 So.3d 1270 (Miss. 2009) and State Farm v. Allstate , 255 So.2d 667 (Miss. 1971). Union submits that the overpayment to the Gatlin Settlement was not voluntary, because, consistent with the requirements of Guidant and its progeny, Union was legally obligated to overpay to protect its insured. This court agrees.

With the very real possibility that a huge judgment could be rendered against their insured, and with the trial only a few days away, Union perceived an obligation to protect its insured from a judgment in excess of policy limits. Ironically, Union's actions in funding the settlement above its pro rata share, also protected Travelers from a potential "bad faith" claim. This court previously has determined that Union's payment was not voluntary, based on the factors outlined in Guidant. v. Indemnity , 13 So.3d 1270 (Miss. 2009) ( Guidant I ), and Indemnity v. Guidant , 99 So.3d 142 (Miss. 2012), ( Guidant II ).

Union argues that this court should not look to Genesis to define voluntary payment; but, says Union, even under the criteria of Genesis , the excess payment it made was not voluntary, because there was an agreement by the carriers to litigate their respective liabilities after the settlement. As previously discussed, two factors are to be considered under the Genesis test to determine whether a payment was voluntary: 1) that no prior agreement existed between the parties to litigate coverage following settlement (e.g., parties agree that one will pay, but they reserve the right to resolve coverage issues later); and 2) payments must be voluntary, that is, not made by virtue of legal obligation, by accident/mistake or made under compulsion. Id. at 738.

In the Genesis case, the court said, that a mutual agreement between President, Wausau, and Genesis to litigate their respective liabilities among themselves after settling the Baker litigation would preclude the application of the volunteer payment doctrine. See McLean v. Love , 157 So. 361, 362 (1934). Accord McDaniel Bros. Constr. Co. , 175 So.2d at 605 ; Presley v. American Guarantee & Liability Ins. Co. , 237 Miss. 807, 116 So.2d 416, 416 (1959). Genesis contended that its reservation of rights letter, combined with Wausau's internal e-mails, indicated the presence of such an agreement.

The district court, in Genesis , had concluded that the settlement with Baker took place "in lieu" of a legal determination of the parties' respective obligations under their policies. The court premised its decision upon the legal rule that a payment under "protest" or accompanied by a unilateral reservation of rights will not escape the application of the volunteer doctrine. See Rowe v. Union Central Life Ins. Co. , 194 Miss. 328, 12 So.2d 431, 433 (1943) ; Horne v. Time Warner Operations, Inc. , 119 F.Supp.2d 624, 629 (S.D. Miss. 1999).

The court in that case determined that the appellants had raised a fact issue as to whether Genesis's reservation of rights was indeed unilateral or whether Wausau had agreed with President and Genesis to preserve the coverage issue for resolution at a later date. Genesis Ins. Co. v. Wausau Ins. Companies , 343 F.3d 733, 736-37 (5th Cir. 2003)

Union contends that in the instant case, an agreement existed to litigate the respective rights and liabilities of the insurers after the settlement was paid, which would obviate the voluntary nature of Union's overpayment. Travelers counters that it did not have any such agreement with the other insurers to litigate coverage issues after settlement. It claims that any correspondence regarding resolving the dispute among the insurers after the settlement was paid was unilateral, and not by agreement.

Union says that on the same day as the settlement agreement was announced, October 9, 2007, counsel for Travelers, Gerald Begley, sent an email to the other carriers stating the figure Travelers would pay and acknowledging that the carriers "have reserved their rights to any contribution claims to which they believe they may be entitled ....." [doc. No. 47 p. 39]. Two days later, on October 11, 2007, a representative from Union emailed a letter to Gerald Begley notifying Travelers that Union and Zurich had agreed to fund the balance of Travelers' share but that both companies intended to seek reimbursement from Travelers. Then on October 15, 2007, counsel for Union, Stephen Wright, sent an email to Begley at Travelers, purporting to memorialize their earlier telephone conversation. The text of that email appears below.

Gerald:

Thank you for the telephone conversation of 10-15-07. This email will confirm our mutual understandings from that communication. We agreed: 1) Travelers, though it may pay $480+/-K toward the $1.75 Million to settle the Gatlin litigation for insured Custom Aggregates, will not expect or require releases from the insured or the other insurers, including USIC; 2) Travelers will negotiate now and after settlement relative to it paying more of the settlement funds; and 3) if satisfactory resolution of this issue (Travelers contractual share of the Indemnification funding) cannot be reached by agreement, then Travelers agrees to litigate with USIC and the other carriers post settlement to allow the courts to resolve the issue. With this understanding in place, no payment by USIC or other carriers can be characterized as voluntary.

Let me know if I misstate our conclusions and agreement.

[doc. no. 48 p. 31]

Begley responded three days later, acknowledging receipt of the October 15, email as well as two subsequent emails from Wright, and reiterated Travelers' position regarding the $1 million dollar total limit of liability and raising a question about the reasonableness of the settlement amount. Regarding the agreement to negotiate after settlement, Begley says: "Finally, while Travelers believes its position with respect to the occurrence limit is correct, we remain open to discussion on this matter." He does not dispute Wright's characterization of their earlier conversation regarding negotiation or litigation. [doc. no. 48 p.32]. Thus, it appears that there was an agreement to resolve the respective rights of the insurers after settlement. This is but another nail in the coffin of the voluntariness that Travelers contends applies to Union's overpayment.

B. The Coverage Trigger: exposure v. manifestation of symptoms

In its Complaint Union asks this court to decide as a matter of law whether to apply the 'exposure' or the 'manifestation of symptoms' triggering mechanism to determine which policy years are involved. "Trigger of coverage" is a term of art that describes what must occur during the policy period for potential coverage to commence under the specific terms of an insurance policy." Boston Gas Co. v. Century Indemnity Co. , 454 Mass. 337, 350, 910 N.E.2d 290, 301 (2009).

Most liability policies are designed to respond to losses that occur instantaneously, such as automobile accidents. In toxic exposure cases, however, the damage usually cannot be traced to having "occurred" at a specific point in time, but instead developed and existed continuously, remaining unrecognized, for several years before it was discovered. The damage may have "occurred" or been "triggered" along a continuous timeline during which several successive polices were in effect. See William R. Hickman and Mary R. De Young, Allocation of Environmental Cleanup Liability Between Successive Insurers , 17 N.Ky.L.Rev. 291, 293 (1990).

The "exposure theory," provides that coverage of toxic tort claims should be based solely on the claimant's period of exposure to the toxic substance. If the exposure occurs during the policy period of more than one carrier, the coverage and defense obligations would be shared among the carriers on the risk during any period of exposure, usually on an apportioned pro rata basis. The exposure theory grew out of asbestos cases in which proponents said medical evidence showed that bodily injury takes place at or shortly after exposure to asbestos and that the condition worsens with the continued breathing in of the dangerous substance. Therefore, they say, coverage and defense obligations must be tied to exposure. Zurich Ins. Co. v. Northbrook Excess & Surplus Ins. Co. , 145 Ill. App. 3d 175, 98 Ill.Dec. 512, 494 N.E.2d 634 (1986), aff'd sub nom. Zurich Ins. Co. v. Raymark Indus., Inc. , 118 Ill. 2d 23, 112 Ill.Dec. 684, 514 N.E.2d 150 (1987)

The exposure theory was first adopted by the Court of Appeals for the Sixth Circuit in Insurance Co. of North America v. Forty-Eight Insulations , 633 F.2d 1212 (6th Cir. 1980), clarified , 657 F.2d 814, cert. denied (1981), 455 U.S. 1009, 102 S.Ct. 1648, 71 L.Ed.2d 878, It was later was utilized by the Court of Appeals for the Fifth Circuit in Porter v. American Optical Corp. (5th Cir. 1981), 641 F.2d 1128, cert. denied (1981), 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650. The Eleventh Circuit has adopted this approach ( Commercial Union Insurance Co. v. Sepco Corp., 765 F.2d 1543 (11th Cir. 1985) ), as have many states.

Under the "manifestation theory", coverage and defense obligations are not triggered until the occurrence insured against has "manifested" itself in a medically detectable manner. The proponents of this theory contend that medical evidence shows that diseases such as asbestosis are not diagnosable until the person has developed recognizable signs or symptoms.

Zurich at 181-83, 98 Ill.Dec. 512, 494 N.E.2d 634.

The manifestation theory has been adopted by the First Circuit. Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co. (1st Cir. 1982), 682 F.2d 12, cert. denied (1983), 460 U.S. 1028, 103 S.Ct. 1280, 75 L.Ed.2d 500.)

Union proposes that for a continuous exposure toxic tort the court should adopt an 'exposure' coverage trigger as a matter of law. Mississippi, says Union, has not adjudicated which coverage trigger applies and thus the District Court should make an Erie guess as to which trigger applies.

The parties, however, prior to the underlying litigation, accepted the 'exposure' method to determine which policies were involved. Furthermore, each insurer followed this agreement in calculating which portion of defense costs they paid. This issue, therefore, is not in dispute in the instant case, and therefore, there is no issue in controversy for this court to decide concerning this matter.

C. Allocation of Indemnity: pro rata allocation v. all sums method

Once it is determined which policy years and which policies are implicated, the next logical step is to determine the allocation of the risk between the successive insurers. Union asks in its Complaint that this court establish the allocation method that should be used to determine each insurer's liability. In progressive or continuous injury situations, it is impractical or impossible to determine how much of the damage actua