USCA4 Appeal: 20-2052 Doc: 80-1 Filed: 11/14/2022 Pg: 1 of 8

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2052

WESTFIELD INSURANCE COMPANY,

Plaintiff – Appellant,

v.

SISTERSVILLE TANK WORKS, INC.; ROBERT N. EDWARDS; E. JANE PRICE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT G. PRICE, DECEASED; DOUGLAS L. STEELE; CAROL STEELE,

Defendants – Appellees,

and

GARY THOMAS SANDY; PEGGY P. SANDY,

Defendants,

and

REAGLE & PADDEN, INC.; DAVID C. PADDEN,

Third Party Defendants – Appellees.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:18-cv-00100-JPB-JPM)

Argued: October 26, 2022 Decided: November 14, 2022

Before AGEE and WYNN, Circuit Judges, and MOTZ, Senior Circuit Judge. USCA4 Appeal: 20-2052 Doc: 80-1 Filed: 11/14/2022 Pg: 2 of 8

Question of law certified to the West Virginia Supreme Court of Appeals by unpublished order.

ARGUED: Brent K. Kesner, KESNER & KESNER, PLLC, Charleston, West Virginia, for Appellant. Ryan Paul Orth, CASEY & CHAPMAN, PLLC, Wheeling, West Virginia; Zachary Benjamin Pyers, REMINGER CO., L.P.A., Columbus, Ohio; David Belknap Lunsford, HARTLEY LAW GROUP, PLLC, Wheeling, West Virginia, for Appellees. ON BRIEF: Ernest G. Hentschel, II, KESNER & KESNER, PLLC, Charleston, West Virginia, for Appellant. Patrick S. Casey, Sandra M. Chapman, CASEY & CHAPMAN, PLLC, Wheeling, West Virginia, for Appellee Sistersville Tank Works, Inc. Kenton H. Steele, REMINGER CO., L.P.A., Columbus, Ohio, for Appellees Reagle and Padden, Inc. and David C. Padden.

ORDER

PER CURIAM:

Appellant, Westfield Insurance Company, brought this action under the Declaratory

Judgment Act,

, and

et seq. Westfield asked the

district court to determine whether it owes insurance coverage under West Virginia law to

Sistersville Tank Works (STW) for three state tort claims brought against STW. J.A. 28.

The state tort claims at issue were brought by Robert N. Edwards, Deborah S.

Edwards, E. Jane Price, Douglas Steele, and Carol Steele (collectively the “Claimants”).

The Claimants allege that they developed latent illnesses as a result of exposure to

chemicals that leaked from tanks manufactured by STW. Each of their illnesses was

diagnosed between 2014 and 2016, but allegedly caused by hazardous chemical exposure

dating back to the 1960s.

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Westfield provided some form of coverage to STW between 1985-2010. The

federal district court ordered summary judgment in favor of STW, finding that Westfield

owed STW coverage under the 1985-1989 policies. Westfield Ins. Co. v. Sistersville Tank

Works,

, 295-97 (N.D.W. Va. 2020). Because coverage existed under

those policies, the district court held that the issue of coverage under later policies was

moot.

.

Westfield challenges the district court’s ruling on appeal. Central to its contentions,

Westfield argues that the district court applied the wrong theory to determine when

insurance coverage was triggered under West Virginia law. Finding no controlling

appellate decision, constitutional provision, or statute of West Virginia resolving the

determinative issue in this matter, we certify the following question of law to the West

Virginia Supreme Court of Appeals pursuant to the Uniform Certification of Questions of

Law Act,

-1A et seq.:

At what point in time does bodily injury occur to trigger insurance coverage

for claims stemming from chemical exposure or other analogous harm that

contributed to development of a latent illness?

This Court acknowledges that the West Virginia Supreme Court of Appeals may

reformulate this question. See

-1A-4. In accordance with the requirement

in

-1A-6, we identify the names and addresses of counsel of record and

unrepresented parties as follows: (1) Counsel of record for Appellant Westfield Insurance

Company is Brent K. Kesner and Ernest Glen Hentschel, II, Kesner & Kesner, PLLC, 112

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Capitol Street, Charleston, WV 25329; (2) Counsel of record for Appellee STW is Patrick

Shannon Casey, Sandra Marie Chapman, and Ryan Paul Orth, Casey & Chapman, PLLC,

1140 Chapline Street, Wheeling, WV 26003; (3) Counsel of record for Appellees Reagle

& Padden, Inc. and David C. Padden is Zachary Benjamin Pyers, Reminger Co. LPA, Suite

800, 200 Civic Center Drive, Columbus, OH 43215; and (4) Counsel of Record for

Appellees Robert Edwards, Jane Price, Douglas Steele, and Carol Steele is David Belknap

Lunsford, Hartley Law Group, PLLC, 7 Pine Avenue, 2001 Main Street, Wheeling, WV

26003.

I.

West Virginia law provides that a certification order must contain “the facts relevant

to the question, showing fully the nature of the controversy out of which the question

arose.”

-1A-6. Accordingly, we set forth those facts below.

STW is currently defending itself against three West Virginia state tort claims

alleging that negligence in manufacturing its products contributed to latent illnesses

suffered by the Claimants. Each of the Claimants was diagnosed with their latent illness

between 2014 and 2016. However, they each allege that decades of exposure to hazardous

chemicals in STW-manufactured tanks caused their recently-diagnosed illnesses.

Westfield Insurance Company acknowledges that it insured STW under several

policies from 1989-2010. The district court also found that it provided insurance to STW

from 1985-1989, although Westfield contests that finding. See Westfield Ins. Co.,

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Supp. 3d at 295-97. It is uncontested that Westfield did not provide insurance to STW in

2014-2016, the years that the Claimants’ illnesses were diagnosed.

Critical to determination of the question of whether Westfield owes coverage to

STW is when bodily injury occurs under the insurance policies so as to trigger coverage

for a latent bodily injury or illness. The district court and the parties here acknowledge

that this is a question of West Virginia state law that has yet to be addressed by the West

Virginia Supreme Court of Appeals. See Westfield Ins. Co., 484 F. Supp. 3d at 295.

At least four trigger of coverage theories can be employed to determine whether

latent bodily injury or property damage has occurred within an insurance policy period. Id.

at 294. These theories are “(1) exposure trigger, (2) injury-in-fact trigger, (3) manifestation

trigger, and (4) continuous or multiple trigger.” Id. Westfield argues that the manifestation

theory of coverage should apply, while STW argues for application of the continuous

theory of coverage. The West Virginia Supreme Court of Appeals could apply any one of

these theories in the context of latent illness claims.

The district court applied a continuous coverage theory to this case, determining

that any policy in place throughout the alleged period of harm was triggered by these

claims. Westfield Ins. Co., 484 F. Supp. at 295. The court held that Westfield owed

coverage to STW under the 1985-1989 policies. Id. at 296. Finding coverage under those

policies, the court determined that evaluating coverage under the 1989-2010 policies is

now moot. Id. at 297.

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Westfield challenges several aspects of the district court judgment. First, Westfield

argues that the district court erred in applying the continuous trigger coverage theory,

instead of the manifestation theory, to find coverage under any of these policies. Westfield

also contends that the district court erred in failing to decide the question of coverage under

the 1989-2010 policies and in considering the 1985-1989 policies, because they were not

properly before the court.

II.

Lower courts applying West Virginia law that have previously considered the first

question—the coverage trigger question—have reached different outcomes.

The district court relied on two West Virginia circuit court opinions to apply the

continuous trigger theory of coverage. See U.S. Silica Co. v. Ace Fire Underwriters Ins.

Co.,

(W. Va. Cir. Nov. 27, 2017); Wheeling Pittsburgh Corp. v. Am.

Ins. Co., Civil Action No. 93-C-340,

(W. Va. Cir. Oct. 18, 2013).

Federal district courts in West Virginia, however, have concluded that West

Virginia law calls for application of the manifestation theory in similar contexts. See State

Auto Prop. & Cas. Ins. Co. v. H. E. Neumann Co.,

(S.D.W. Va. Sept.

23, 2016); Westfield Ins. Co. v. Mitchell,

(S.D.W. Va. 2014).

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III.

Several factors counsel in favor of certification in this case. There is no controlling

West Virginia precedent guiding the choice of trigger of coverage theory. Due to the long

history of West Virginia housing a substantial chemical industry, this question is likely to

be a matter of exceptional importance for the State.

The answer to this question may be determinative of coverage in this case. If the

West Virginia Supreme Court of Appeals holds that the manifestation theory of coverage

is applicable, then there will likely be no coverage under any of Westfield’s policies. If,

on the other hand, the West Virginia Supreme Court of Appeals finds the continuous

coverage theory or some other theory applies, this court may need to determine whether

the district court otherwise erred in finding coverage under the 1985-1989 policies and

whether the district court properly determined that coverage under the 1989-2010 policies

was moot.

IV.

Accordingly, pursuant to the privilege made available by

-1A-3,

we respectfully hereby ORDER: (1) that the question stated above be certified to the West

Virginia Supreme Court of Appeals for answer; (2) that the Clerk of this Court forward to

the West Virginia Supreme Court of Appeals, under the official seal of this Court, a copy

of this Order of Certification, together with the original or copies of the record before this

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Court to the extent requested by the West Virginia Supreme Court of Appeals; and (3) that

the Clerk of this Court fulfill any request for all or part of the record simply upon

notification from the Clerk of the West Virginia Supreme Court of Appeals.

QUESTION CERTIFIED

FOR THE COURT

/s/ Patricia D. Connor Clerk

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