COMMISSIONER OF INSURANCE OF THE STATE OF NEW JERSEY, Plaintiff–Respondent, v. INTEGRITY INSURANCE COMPANY, a stock insurance company of New Jersey, THE INTEGRITY FINANCIAL GROUP, INTEGRITY CREDIT CORPORATION, Defendants–Respondents, THE OWENS CORNING/FIBREBOARD ASBESTOS PERSONAL INJURY TRUST, Defendant–Appellant.
DOCKET NO. A–1606–11T1
-- September 26, 2013
Robert M. Horkovich of the New York bar, admitted pro hac vice, argued the cause for appellant (Anderson, Kill & Olick, P.C., attorneys; Mr. Horkovich, Robert Y. Chung of the New York bar, admitted pro hac vice, and Kenneth E. Sharperson, on the briefs).Daniel Hargraves (Hargraves McConnell & Costigan, P.C.) of the New York bar, admitted pro hac vice, argued the cause for respondent Kenneth E. Kobylowski, Acting Commissioner of Banking and Insurance of the State of New Jersey in his capacity as Liquidator of Integrity Insurance Company (Golub & Isabel, P.C., and Mr. Hargraves, attorneys; Mr. Hargraves, on the brief).
The Liquidator of defendant Integrity Insurance Company (Integrity) disallowed asbestos-related non-products bodily injury claims made by defendant The Owens Corning/Fibreboard Asbestos Personal Injury Trust (Trust), as assignee for Owens Corning/Fibreboard (Owens Corning), against Integrity's excess insurance policies. Owens Corning had already received the full policy limits for asbestos-related products claims arising from its manufacture and distribution of asbestos products. The Trust sought a second policy limits recovery for Owens Corning's alleged non-products losses arising from Owens Corning's decision to operate a supply and contracting division that installed an insulation product containing asbestos at nationwide construction sites. The Special Master affirmed the Liquidator's decision. The Trust appeals from the liquidation court's November 9, 2011 order, which confirmed the Special Master's determination. We affirm.
Between 1948 and 1958, Owens–Illinois Incorporated (Owens–Illinois) manufactured and distributed Kaylo, a thermal insulation product containing asbestos. Owens–Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 442–43 (1994) (explaining the history of Kaylo manufacturing and distribution). In 1953, Owens Corning became one of the distributors of Kaylo. Strickland v. Owens Corning, 142 F.3d 353, 355 (6th Cir.1998). In 1958, Owens Corning became the manufacturer of Kaylo when it purchased the Kaylo product line from Owens–Illinois. Ibid. Owens Corning ceased manufacturing Kaylo in 1973. During the underlying litigation in this matter, Owens Corning claimed that it also operated a supply and contracting division that installed Kaylo (the S & C Division). The record does not reveal when and how Owens Corning formed the S & C Division or when the division began or ceased installing Kaylo. Beginning in the 1980s, Owens Corning became a defendant in a multitude of asbestos lawsuits.
Between 1979 and 1984, Integrity issued comprehensive general liability policies that provided coverage for bodily injury and property damage (the underlying policies). With respect to claims for “personal injury,” the underlying policies protected Owens Corning from claims for asbestos-related injuries that occurred either away from the premises owned by or rented to Owens Corning after it relinquished physical possession of the product to others (“products hazard” coverage), or after an asbestos-related operation was completed or abandoned and occurred away from the premises owned or rented to Owens Corning (“completed operations hazard” coverage).1 The underlying policies had a $100 to $150 million per “occurrence” limit of liability.
Integrity also issued several excess liability insurance policies that insured Owens Corning for bodily injury and property damage. Seven of those excess policies, with a combined “per occurrence” limit of $22 million, are at issue in this appeal (the excess policies). The excess policies were subject to and followed the terms of the underlying policies, and there were three levels of underlying coverage before any of the excess policies were reached on the fourth level. Integrity was not obligated to pay any loss under the excess policies until the limits of the underlying policies were exhausted.
In 1991, Owens Corning submitted a claim to the Ohio Insurance Guaranty Association (OIGA) for asbestos-related bodily injury losses covered by the excess policies and other non-Integrity insurance policies. Up until then, Owens Corning had categorized all of its asbestos-related claims as products claims falling within the products category and as arising from a single occurrence: its decision to manufacture and distribute asbestos products. See Travelers Cas. & Sur. Co. v. Gerling Global Reinsurance Corp. of Am., 419 F.3d 181, 184–85 (2d Cir.2005).
Pursuant to a 1991 settlement with OIGA, Owens Corning received $4,538,192 from the excess policies for its “asbestos claims” (the OIGA settlement). The OIGA settlement agreement defined “asbestos claims” as follows:
[A]ny and all claims or lawsuits alleging any injury, damage or loss, including but not limited to personal injury, bodily injury, mental injury, mental anguish, shock, sickness, disease, disability, death, property damage or asbestos removal, asserted to have been caused in whole or in part by any asbestos or asbestos-containing products.
The settlement provided that $17,461,808 was the maximum claim Owens Corning could assert against Integrity and other insolvent insurers, which reflected the uncollected balance of all policy limits. The settlement also provided as follows:
The OIGA and [Owens Corning] agree to submit their respective claims to the various liquidators based upon the allocation of the proceeds from the SETTLEMENT AMOUNT contained in this Section VI of the Settlement Agreement. The OIGA shall submit its claims to the various liquidators based on the allocation amount contained in this section, and [Owens Corning's] claims to the various liquidators shall be based on the remainder of the POLICIES' limits.
Sometime thereafter, Owens Corning devised a new strategy in order to obtain more coverage. It now claimed that its asbestos claims arose from a dual occurrence: one for products liability arising from its decision to manufacture and distribute asbestos products, and the second for non-products liability arising from its decision to operate a supply and contracting insulation installation business. Owens Corning posited that to the extent a claimant was exposed to Kaylo during installation and before Owens Corning relinquished possession of the product and/or completed the installation, the claims did not fall within the definitions of “products hazard” and “completed operations hazard.” Thus, a Kaylo-related claim was a separate and distinct non-products claim entitled to separate coverage and recovery under the excess policies as a separate occurrence.
To support its new strategy, in 1996, Owens Corning developed a “coding project” to classify its asbestos claims and identify the non-products claims that arose from a claimant's exposure to Kaylo during installation. Its criteria for identifying a non-products claim consisted of “capturing allegations of each claimant's work history and comparing that data to information regarding [the S & C Division's] activities.” Owens Corning coded a claim a non-products claim where there was some evidence that a claimant had worked at a site at roughly the same time the S & C Division had performed activities there. Owens Corning used four codes to identify non-products claims:
Code 1: Claimant mentions [supply and contracting]—Work history, deposition, etc. state that the claimant worked for Owens Corning [supply and contracting] at this site, that the claimant saw [Owens Corning] at this site, or that [Owens Corning] was the insulation contractor at this site.
Code 2: Co-worker mentions [supply and contracting]—Affidavit, deposition, etc. of coworker states that he worked for [Owens Corning supply and contracting] at this site, he saw [Owens Corning supply and contracting] at this site, or that [Owens Corning] was the insulation contractor at this site.
Code 3: Sites and Dates Match—Work history site and dates match known [supply and contracting] sites with dates overlapping.
Code 4: Site Matches and Dates Matches w/in 1 yr.—Work history site matches known [supply and contracting] site, dates are within 1 year of known [supply and contracting] dates.
In 1998, Owens Corning obtained an expert report from Denise Neumann Martin and Vinita M. Juneja in connection with litigation entitled Owens Corning v. Certain Underwriters at Lloyd's of London and Certain London Companies (the Martin report). The report estimated that Owens Corning had a twelve-percent share of the insulation market between 1953 and 1973, and that the supply and contracting insulation installation division had installed between thirty-four and sixty-five percent of all Kaylo nationwide. Sometime in 2000, Owens Corning retained another expert, William T. Jones (Jones) of Navigant Consulting, Inc., to review the coding project, provide criteria for identifying non-products claims, assess the reasonableness of the criteria Owens Corning used to identify those claims, and determine whether the coding procedures were followed consistently.
In the meantime, Owens Corning submitted Final Proof of Claims (POCs) for its products claims to Integrity's Liquidator. On November 22, 2000, the Liquidator issued Final Notices of Determination (NODs) allowing some of the POCs in the total amount of $17,461,808. This represented the $22 million combined limits of the excess policies minus $4,538,192 from the OIGA settlement.
Thereafter, on October 15, 2003, Jones rendered an expert report relating to the non-products claims (the Jones report). The Jones report relied on an undated excerpt from a statistical analysis contained in a report issued by Wanda A. Wallace (the Wallace report). Both the Wallace report and the Jones report were prepared for litigation entitled Owens Corning v. Birmingham Fire Insurance Co. of America, which was filed in Ohio state court.
The Jones report indicated that out of 108,000 claims that Owens Corning had coded, Jones only tested 921 claims consisting of 550 of the 31,517 claims that Owens Corning had identified as non-products claims and 371 of the approximately 76,000 claims that Owens Corning had not identified as non-products claims. Of the 550 alleged non-products claims that Jones tested, only 467 had sufficient information to determine if the claim was, in fact, a non-products claim. Jones did not test the remaining 83 of the 550 claims, but instead, he randomly selected other claims to test.
In addition, there were approximately 70,000 claims that Owens Corning had not yet coded. Jones sampled 488 of these claims and estimated the number of non-products claims that might have been among them. Jones then extrapolated his results over the remaining claims that he did not test and estimated that approximately thirty-three percent of all of Owens Corning's asbestos claims were non-products claims.
Jones's estimates included Owens Corning's employees, who were covered under a separate workers' compensation policy. In addition, the estimates were not limited to non-products losses arising from the S & C Division's activities; they also included asbestos losses arising from “all contracting activities of Owens Corning and related entities, including Detroit Insulation, FESCO, and FENCO.” The asbestos losses arising from the activities of these other Owens Corning divisions, however, did not arise from the operation of the S & C Division.
On November 15, 2004, Jones issued a supplemental expert report in response to Owens Corning's request to reallocate asbestos losses for claims it had closed during the period April 1, 1993 to October 4, 2000 (the supplemental Jones report). Jones reallocated the estimated non-products losses among the insurance policies issued to Owens Corning; however, he did not allocate any of the estimated losses to the excess policies, nor did he or any other expert show that Owens Corning's alleged non-product losses reached the excess policies. The supplemental Jones report only mentioned the excess policies in relation to Jones's analysis of Owens Corning's products claims for which it had already been paid.
In 2005, Owens Corning submitted POCs to Integrity's Liquidator seeking coverage under the excess policies for non-products claims arising from the S & C Division's installation of Kaylo. In May 2005, the Liquidator issued NODs disallowing the POCs because “[d]amages, as presented, are insufficient to trigger coverage. There is no evidence indicating that any specific claimant has triggered the ‘per occurrence’ coverage under Integrity's excess policy.”
Over four years later, on September 29, 2009, the Trust submitted POCs to the Liquidator for Owens Corning's non-product claims arising from the S & C Division's installation of Kaylo. Along with the POCS, the Trust submitted a compact disc containing a spreadsheet of Owens Corning's paid asbestos claims as of June 30, 2009, a notice of entry of an order confirming Owens Corning's sixth amended joint plan of reorganization, a disclosure statement regarding the plan, a notice of filing of plan supplemental materials, and an order approving the disclosure statement. The Trust did not mention the OIGA settlement or the Liquidator's May 2005 disallowance of Owens Corning's POCs for these non-products claims. On January 7, 2010, the Liquidator issued NODs disallowing the Trust's POCs for the following reasons:
Insufficient supporting documentation.
Failure to document the exhaustion of limits of coverage of the underlying policy to the Integrity policy.
Unacceptable allocation methodology presented.
No support for payments for any one occurrence impacting this policy was received. Claims presented do not trigger coverage under this policy. The non-product bodily injury claims presented by the insured are subject to the per occurrence limits and [cannot] be aggregated.
The matter was transferred to the Special Master after the Trust objected to the NODs and the Liquidator did not amend them. Thereafter, on January 11, 2011, the Trust submitted a supplemental POC along with documentation that it had not submitted with the original POCs, including the Jones report, the Jones supplemental report, the Martin report and the Wallace report. On February 4, 2011, the Trust submitted a “further supplemental” POC, claiming for the first time that it had incurred an additional $1 billion in non-products losses for a total of $1.777 billion. The “further supplemental” POC also contained an allocation pursuant to Carter–Wallace, Inc. v. Admiral Ins. Co., 154 N.J. 312 (1998) alleging that Owens Corning's claims should have been approved in the amount of either $18,217,251 or $15,895,526.2
The Liquidator objected to the Trust's supplemental submissions as untimely and because the Trust provided no evidence, including expert evidence, supporting its alleged additional $1 billion in non-products losses. The Liquidator also argued that the Trust's Carter–Wallace allocation was defective and the Trust failed to provide information that was necessary to the analysis.
At the hearing before the Special Master on February 10, 2011, the Trust presented its dual occurrence and products versus non-products theories, and asserted that it had incurred $734 million in non-products losses. The Liquidator countered that the Trust failed to provide sufficient supporting documentation or demonstrate that any of the excess policies could be reached through claims that Owens Corning actually paid.
In an August 3, 2011 written determination, the Special Master sustained the Liquidator's decision. The Special Master found that for over twenty years, Owens Corning had characterized all of its asbestos-related bodily injury claims as arising from a single occurrence covered by the products liability and completed operations provisions of the underlying policies, and Owens Corning settled its asbestos claims with Integrity on that basis and received the full policy limits. The Special Master concluded that the Trust's POCs were substantially duplicative of the Owens Corning POCs for which Owens Corning had recovered full policy limits. The Special Master also determined that
[t]he Trust has failed to show that Owens Corning had any actual non-products losses. The evidence on which the Trust relied is insufficient to show that any asbestos claimant actually suffered any asbestos injury during the course of Owens Corning's [supply and] contracting activities and decision to operate a nationwide [supply and] contracting business. The Trust proofs are mere speculation as to non-products claims. The occurrences for which a valid claim has been made was the response to the asbestos after it was provided and or installed by Owens Corning. I find that the Trust has not presented any evidence that Owens Corning has a separate set of asbestos losses that were caused by its decision to operate a nationwide [supply and] contracting business.
The matter proceeded before the liquidation court. In a November 9, 2011 written opinion, the court confirmed the Special Master's decision pursuant to Rule 4:41–5(b). The court concluded that the Trust's POCs were substantially duplicative of the Owens Corning POCs for which Owens Corning had already been paid for its asbestos bodily injury claims. The court also found that the Trust failed to show that Owens Corning had any actual non-products losses. The court determined that the Trust's evidence of non-products claims was merely speculative and insufficient to show that any claimant actually suffered an asbestos injury during the course of the S & C Division's activities. Finally, the court found that the Trust failed to present sufficient evidence that Owens Corning had a separate set of asbestos losses that were caused by its decision to operate a nationwide supply and contracting insulation installation business. This appeal followed.
On appeal, the Trust contends that the liquidation court erred in ruling that the non-products claims were duplicative of the products claims. The Trust argues that because the non-products claims fall outside the “product hazard” and “completed operations hazard” definitions, they are separate and distinct claims entitled to coverage and a second recovery of the limits of the excess policies. We disagree.
Owens Corning's alleged non-products claims related directly to its decision to manufacture and distribute products containing asbestos. Because Owens Corning's ability to install Kaylo without relinquishing possession is linked to its manufacturing operations, all of its asbestos claims are the result of the same occurrence. Thus, in our view, all of Owens Corning's asbestos losses, including its alleged non-products losses stemming from its decision to operate a supply and contracting insulation installation business, arose from a single occurrence for which it has been fully compensated. We decline the Trust's invitation to rely on out-of-state authority or unpublished opinions to reach a contrary result. Accordingly, the liquidation court correctly held that the Trust's POCs were substantially duplicative of Owens Corning's POCs for which Owens Corning had recovered full policy limits.
Even assuming the non-products losses could constitute a separate occurrence, there was no proof of any such separate occurrence. The Trust submitted no documents relating to the S & C Division. Thus, it is unknown when and how Owens Corning formed that division, when the division began and completed its installation operations at any given work site, and whether any claimant was actually exposed to Kaylo during the division's activities on the worksite. There was also no evidence that the claimants who sought payment from Owens Corning in connection with the alleged non-products claims at issue here were complaining about exposure to Kaylo's asbestos fibers.
In any event, as the Trust acknowledges, the ultimate issue is whether the non-products claims were valid and allowable under the Uniform Insurers Liquidation Act (UILA), N.J.S.A. 17:30C–1 to –31. With respect to this issue, the Trust argues that the liquidation court erred in ruling that: (1) the Trust failed to show that Owens Corning had non-product losses; (2) the Trust failed to show that claimants suffered injury during the S & C Division's operations; and (3) there was insufficient evidence that Owens Corning's non-products losses were caused by its decision to operate a supply and contracting insulation installation business. We reject these arguments.
Regarding claims, the UILA provides as follows:
All claims against an insurer against which delinquency proceedings have been begun shall set forth in reasonable detail the amount of the claim, or the basis upon which such amount can be ascertained, the facts upon which the claim is based, and the priorities asserted, if any. All such claims shall be verified by the affidavit of the claimant, or someone authorized to act on his behalf and having knowledge of the facts, and shall be supported by such documents as may be material thereto.
[N.J.S.A. 17:30C–20a (emphasis added).]
The UILA also provides that claims must be absolute:
No contingent claim shall share in a distribution of the assets of an insurer which has been adjudicated to be insolvent by an order made pursuant to [N.J.S.A. 17:30C–30a], except that such claims shall be considered, if properly presented, and may be allowed to share where
(1) Such claim becomes absolute against the insurer on or before the last day fixed for filing of proofs of claim against the assets of such insurer[.]
“Absolute” is defined as “all or that part of any covered [c]laim for which the liability and value has been fixed by actual payment by the [c]laimant or by judgment of a court of law, including claim resolution proceeds approved by a federal bankruptcy court, and has not been previously allowed by the liquidator.” See Amended Liquidation Closing Plan, dated June 12, 2008.
As our Supreme Court has held, estimated claims are not absolute claims and not payable under the UILA:
The plain language of N.J.S.A. 17:30C–28(a) requires that, in order to be cognizable in liquidation, a claim against the liquidated estate must be ‘absolute against the insurer on or before the last day fixed for filing of proofs of claim against the assets of [an insolvent] insurer[.]’ That language does not permit the substitution of estimated claims for ‘absolute’ ones, even when those estimated claims result from the application of sophisticated actuarial estimation methodologies.
[In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 88 (2007) (citing N.J.S.A. 17:30C–28a) (emphasis added).]
The Court specifically stated that the term “absolute” refers to cognizable claims against a company in liquidation and does not include claims that “are the product of generally accepted estimating techniques,” even if those techniques are applied in a commercially reasonable manner. Id. at 94–95. In order for a claim to be absolute, “the claim, in each of its fundamental respects, must stand on its own, and not by reference to any other claim.” Id. at 96.
The Court determined that the statutory bar of contingent claims prohibits allowance of estimated claims:
The unambiguous terms of N.J.S.A. 17:30C–28(a) demonstrate that the Legislature specifically selected which claims would be honored in the insurance company liquidation context. At the outset, the Legislature determined that no contingent claim shall share in a distribution of the assets of an insurer which has been adjudicated to be insolvent. Thus, the overarching legislative intent plainly is to bar any contingent claim.
[Id. at 95 (emphasis in original; internal citations and quotation marks omitted).]
The Court reasoned that estimated claims are necessarily contingent. See id. at 96. Regarding contingent claims, the UILA provides:
Where an insurer has been so adjudicated to be insolvent, any person who has a cause of action against an insured of such insurer, shall have the right to file a claim in the liquidation proceeding, regardless of the fact that such claim may be contingent, and such claim may be allowed
(1) If it may be reasonably inferred from the proof presented upon such claim that such person would be able to obtain a judgment upon such cause of action against such insured; and
(2) If such person shall furnish suitable proof, unless the court, for good cause shown, shall otherwise direct, that no further valid claims against such insurer arising out of his cause of action, other than those already presented, can be made[.]
There is no evidence in this case that Owens Corning's alleged non-products claims were absolute.3 The Trust provided no evidence that any claimant actually sued Owens Corning for a non-products asbestos-related injury connected to the S & C Division's activities, let alone that Owens Corning's liability was fixed by actual payment of a non-products claim or judgment. The Trust merely submitted the flawed and speculative Jones analysis and the estimation of possible non-products claims that Jones believed existed among Owens Corning's total asbestos claims. Among other deficiencies, Jones did not analyze every asbestos claim; rather, he only tested a very small number of claims and then extrapolated his results over the remaining claims he never tested. Thus, the alleged non-products claims were not absolute because they did not stand on their own without reference to any other claim. In re Liquidation of Integrity Ins. Co., supra, 193 N.J. at 96.
In addition, Jones included worksites where the S & C Division merely worked without verifying that it had actually installed Kaylo there. Simply alleging that the S & C Division worked at a particular site is not enough to justify legal action; allegedly-injured parties must show that the S & C Division's activities involved asbestos products. See Sch. Dist. No. 1J Multnomah Cnty., Oregon v. AC & S, 767 F.Supp. 1051, 1057 (D.Or.1991) (granting summary judgment to Owens Corning because the evidence only showed that Owens Corning performed contracting activities for the school district school, not that those activities involved asbestos products), aff'd, 5 F.3d 1255 (9th Cir.1993). Jones's analysis also included Owens Corning's employees who were covered under a separate workers' compensation policy as well as asbestos losses arising from the activities of other Owens Corning entities not connected to the S & C Division's operations. Jones also did not segregate the S & C Division's non-asbestos-related activities. The Martin report and historical and medical evidence the Trust also submitted did nothing to overcome these deficiencies.
The Trust also provided no affidavit or verified documentation relating to the S & C Division, and failed to set forth in reasonable detail the necessary information related to its claims. See N.J.S.A. 17:30C–20a. Although along with its original POCs the Trust submitted a disk along containing a spreadsheet of claims as of June 30, 2009, that spreadsheet was flawed as well. The spreadsheet listed information for 65,536 claims; however, it is unclear if the spreadsheet included only information for the POCs at issue here.
In addition, the spreadsheet shows that the first 14,303 claimants were exposed to asbestos prior to 1948; however, Owens–Illinois did not begin manufacturing Kaylo until 1948, and stopped manufacturing Kaylo in 1959. The spreadsheet also does not indicate that those 14,303 claimants were actually exposed to Kaylo as opposed to some other asbestos product. As a result, it cannot be determined that the first 14,303 claims on the spreadsheet are related to the POCs at issue here.
Furthermore, Owens Corning began distributing Kaylo in 1953. The spreadsheet contains a claim related to a 1953 exposure to an asbestos product; however it is unclear whether that product was Kaylo. It is also unclear if the claimants listed on the spreadsheet from 1953 to 1958 were exposed to products that Owens–Illinois manufactured, or to products that Owens Corning distributed. Moreover, Owens Corning began manufacturing Kaylo in 1958. Some of the claims on the spreadsheet relate to a 1958 exposure; however, it is unclear if those claims arose from Kaylo or whether they were products claims, completed operations claims, non-products claims or a combination of those three types of claims. Thus, the Trust failed to set forth in reasonable detail the necessary information related to its POCs necessary to satisfy N.J.S.A. 17:30C–20(a). Accordingly, the liquidation court correctly determined that the Trust failed to show that Owens Corning had actual non-products losses and that claimants suffered injuries during the S & C Division's operations.
We address one last issue. Integrity was not obligated to pay any loss under the excess policies until the limits of the underlying policies were exhausted. There was no evidence that Owens Corning's alleged non-products losses reached the excess policies. In fact, the evidence shows the contrary: Jones allocated all of Owens Corning's estimated non-product losses to policies other than the excess policies. The Trust's argument that it was not required to show it had exhausted the underlying policies lacks sufficient merit to warrant any further discussion. R. 2:11–3(e)(1)(E).
The underlying policies contained the following definitions:
COMPLETED OPERATIONS HAZARD:
(1) Includes PERSONAL INJURY ․ arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the PERSONAL INJURY ․ occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the INSURED. Operations include materials, parts or equipment furnished in connection therewith.
Operations shall be deemed completed at the earliest of the following times:
(a) when all operations to be performed by or on behalf of the INSURED under the contract have been completed.
(b) when all operations to be performed by or on behalf of the INSURED at the site of the operations have been completed, or
(c) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or sub-contractor engaged in performing operations for a principal as a part of the same project.
Operations which may require further service or maintenance work or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.
[W]ith respect to PERSONAL INJURY ․ shall mean an accident or event including continuous or repeated exposure to conditions, which results, during the policy period, in PERSONAL INJURY ․ neither expected nor intended from the standpoint of the INSURED. For the purpose of determining the limit of [the INSURER'S] liability, all PERSONAL INJURY ․ arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one OCCURRENCE.
(1) bodily injury, sickness, disease, disability or shock, including death at any time resulting therefrom, mental anguish and mental injury[.]
Includes PERSONAL INJURY ․ arising out of the INSURED'S PRODUCTS or reliance upon a representation or warranty made at any time with respect thereto, but only if the PERSONAL INJURY ․ occurs away from premises owned by or rented to the INSURED and after physical possession of such products has been relinquished to others.
1. FN1. The underlying policies' definitions of the terms “completed operations hazard,” “occurrence,” “personal injury,” and “products hazard” are contained in the Appendix to this opinion.
2. FN2. There is no authority permitting the submission of these supplemental POCs and documents after the submission of the original POCs on September 30, 2009. See Comm'r of Ins. of the State of New Jersey v. Integrity Ins. Co./W.R. Grace & Co., A–2505–10T4, (App.Div. Jan. 11, 2012) (slip op. at 15, 24–26) (stating that untimely submissions would not be considered pursuant to the terms of the Amended Liquidation Closing Plan), certif. denied, 211 N.J. 607 (2012).
3. FN3. We disagree with the Trust that Integrity's payment of Owens Corning's POCs for products claims and the bankruptcy court's approval of Owens Corning's claim resolution procedures made the non-products claims absolute.