CENTURY INDEMNITY COMPANY v. ANHEUSER-BUSCH, INC. Complaint

8/6/2019 CENTURY INDEMNITY COMPANY v. ANHEUSER-BUSCH, INC. Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CENTURY INDEMNITY COMPANY,

(AS SUCCESSOR TO CCIINSURANCE COMPANY, AS

SUCCESSOR TO INSURANCE

COMPANY OF NORTH AMERICA),

Plaintiff,

v.

ANHEUSER-BUSCH, INC.,

Defendant.

)

)))))))) CIVIL ACTION NO. 4:11-CV-1097)) JURY TRIAL DEMANDED))

COMPLAINT AND REQUEST FOR DECLARATORY JUDGMENT

Plaintiff, Century Indemnity Company, as successor to CCI Insurance Company, as

successor to Insurance Company of North America (Century), by its undersigned counsel, for

its Complaint against Defendant, alleges as follows:

NATURE OF ACTION

1. This is an action for declaratory judgment. Plaintiff seeks this Courtsdetermination concerning the scope and nature of its obligations, if any, as issuers of certain

liability insurance policies to Defendant, Anheuser-Busch, Inc. (Anheuser-Busch).

2. This case arises out of multiple underlying asbestos-related bodily injury claimsand lawsuits (the Underlying Claims) brought against Defendant, for which Defendant has or

may seek defense and/or indemnification from Plaintiff.

3. In connection with the Underlying Claims, for which Defendant now claims ormay claim coverage in the near future, an actual, justiciable controversy exists between the

parties as to which a declaratory judgment setting forth their respective rights and obligations

under the subject insurance policies is necessary and appropriate.

Case: 4:11-cv-01097-CEJ Doc. #: 1 Filed: 06/17/11 Page: 1 of 10 PageID #: 1


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THE PARTIES

4. Plaintiff Century is the successor to CCI Insurance Company, as successor toInsurance Company of North America. Century is an insurance company organized under the

laws of the Commonwealth of Pennsylvania, having its principal place of business in

Philadelphia, Pennsylvania. At all times relevant to this action, Century was authorized to

conduct business in the State of Missouri, including within the Eastern District.

5. Upon information and belief, Defendant Anheuser-Busch is, and at all timesrelevant to this Complaint was, a Missouri corporation whose principal place of business is

located in St. Louis, Missouri.

JURISDICTION AND VENUE

6. This Court has original jurisdiction over this declaratory judgment action basedupon 28 U.S.C. 1332(a) and 28 U.S.C. 2201 et. seq. The amount in controversy exceeds,

exclusive of interest and costs, the sum of $75,000.

7. Venue is proper in this Court pursuant to 28 U.S.C. 1391(a).THE UNDERLYING ASBESTOS-RELATED BODILY INJURY CLAIMS

8. Upon information and belief, asbestos-related bodily injury claims have been andmay in the future be asserted by various private-party claimants for compensatory and punitive

damages and other legal and/or equitable relief against Defendant as a result of alleged exposure

to asbestos or asbestos-containing products at an Anheuser-Busch facility.

9. Upon information and belief, generally, the underlying claimants allege that theywere exposed to asbestos or asbestos-containing products at an Anheuser-Busch facility as far

back as 1940 and as recently as the 1990s.



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10. A list of known underlying asbestos lawsuits brought against Defendant isattached hereto as Exhibit A.

11. Defendant has sought insurance coverage from Plaintiff for some or all of thoseasbestos-related bodily injury claims.

12. Defendant has asserted or may assert that Plaintiff is or may be obligated todefend Anheuser-Busch and/or assume liability for defense costs incurred or to be incurred by

Anheuser-Busch in connection with present and future asbestos-related bodily injury claims.

13. Anheuser-Busch has asserted or may assert that Plaintiff is or may be obligated toindemnify Anheuser-Busch for any judgments or settlements in connection with Anheuser-

Buschs liabilities arising out of some or all of the asbestos-related bodily injury claims.

PLAINTIFFS INSURANCE POLICIES AT ISSUE

14. This Complaint stems from certain excess insurance policies issued by Century(through its predecessor in interest, Insurance Company of North America) to Anheuser-Busch

for the policy years 1980 through 1992 (the Century Policies).

15. The Century Policies are excess and/or umbrella policies which are excess of thelimits of certain underlying insurance policies and/or retained limits, depending on the purported

potential coverage, if any, implicated by the underlying claim.

16. A list of the Century Policies is attached hereto as Exhibit B.17. Upon information and belief, the Century Policies were brokered, negotiated,

contracted for and issued in Missouri.

18. Upon information and belief, many key witnesses and documents relevant to thesubject matter of this action are located in Missouri.



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19. Upon information and belief, to the extent that Anheuser-Busch properly hastendered claims to Plaintiff for asbestos-related bodily injury under the Century Policies,

Plaintiff has timely and properly reserved its right to disclaim coverage.

SUMMARY OF CLAIMS

20. Upon information and belief, there are disputes between Plaintiff and Defendantregarding Plaintiffs obligation, if any, to indemnify Defendant for losses resulting from the

Underlying Claims, to reimburse Defendant for defense costs expended in connection with the

Underlying Claims, and to provide Defendant a defense against the Underlying Claims. Plaintiff

contends that it has no such obligation for some or all of the Underlying Claims. Alternatively,

if Plaintiff is found to have any such obligation, Plaintiff contends that these obligations are

limited pursuant to the terms, conditions and exclusions set forth in the Century Policies. Upon

information and belief, Defendant disputes Plaintiffs contentions.

21. As such, an actual, immediate, and justiciable controversy exists between Plaintiffand Defendant concerning their respective rights and obligations, if any, under the Century

Policies with respect to some or all of the underlying asbestos-related bodily injury claims.

22. Pursuant to 28 U.S.C. 2201 et. seq, Plaintiff is entitled to a judicialdetermination concerning the scope and nature of its rights and obligations, if any, under the

Century Policies with respect to some or all of the Underlying Claims.

COUNT I(Declaratory Judgment)

23. Plaintiff incorporates herein by reference paragraphs 1 through 22 set forth abovein this Complaint.

24. Plaintiff seeks a declaration that under the express terms, conditions, andexclusions contained in the Century Policies, Plaintiff has no obligation, either in whole or in



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part, to defend and/or indemnify Defendant for losses resulting from asbestos-related bodily

injury claims arising out of the alleged exposure to asbestos at an Anheuser-Busch facility,

which have been asserted, or which may be asserted, against Defendant because, among other

things:

(a) the asbestos-related bodily injury claims asserted against Defendant do notconstitute claims for personal injury, bodily injury, or property damage that took place during the

applicable periods of the Century Policies;

(b) the asbestos-related bodily injury claims asserted against Defendant do notarise out of an accident or occurrence as required by the Century Policies;

(c) some or all of the asbestos-related bodily injury claims asserted againstDefendant do not constitute claims for damages because of personal injury, bodily injury, and/or

property damage within the meaning of the Century Policies;

(d) some or all of Defendants alleged damages do not constitute ultimate netloss as defined in the Century Policies;

(e) on information and belief, some or all of Defendants expense, loss orobligation was voluntarily incurred, without the consent of Plaintiff, thus barring coverage under

the Century Policies;

(f) to the extent that some or all of the insurance recovery sought byDefendant is for liability associated with punitive damages or civil or criminal penalties or fines,

coverage is barred by applicable law, public policy, the language of the Century Policies, and by

the excess fines, due process and equal protection clauses of the United States Constitution, and

the Constitution of the State of Missouri, and other states;



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(g) to the extent that Defendant is and/or will be seeking insurance recoveryfor liability arising out of events, acts, occurrences, transactions, losses or claims which were in

progress or were not contingent or unknown at the time of the issuance of the Century Policies,

recovery is barred by applicable law, public policy, and the language of the Century Policies;

(h) Defendant is not entitled to coverage under some or all of the CenturyPolicies to the extent that Defendant or those persons acting on its behalf have made

misrepresentations, including, without limitation, those deriving from the failure to disclose

material facts, in the course of procuring such insurance policies, regarding the nature of

Defendants business operations and/or existing or known asbestos problems resulting from

those practices and operations;

(i) coverage is not afforded under the Century Policies for any individual orentity which is not expressly identified therein as a named or additional insured;

(j) Defendant is not entitled to coverage under the Century Policies to theextent it has failed to mitigate and/or avoid any of the losses sustained in connection with the

asbestos-related bodily injury claims;

(k) coverage is barred to the extent that any asbestos-related claim or claimsasserted against Defendant resulted from Defendants violation of statute, regulation, ordinance

or public policy;

(l) to the extent that the asbestos-related bodily injury claims againstDefendant constitute claims for liability assumed by Defendant under any contract or agreement,

such claims may not be within the scope of coverage otherwise afforded by the Century Policies;

(m) coverage is precluded under the Century Policies to the extent that anyasbestos-related claim arose out of Defendants willful or intentional conduct;



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(n) there is no coverage under the Century Policies to the extent that theinsured failed to satisfy conditions precedent, including without limitation, the failure to furnish

Plaintiff with prompt and adequate written notice of any alleged occurrence, and immediate

notice of all claims or suits as required by the terms and conditions of the policies;

(o) there is no coverage under the Century Policies for the Underlying Claimsto the extent that they contain asbestos exclusions;

(p) there is no coverage under the Century Policies to the extent that theinsured failed to consult with and obtain prior consent from Plaintiff before entering into any

agreements, incurring any legal costs, or assuming any obligations with respect to any claims for

which they seek reimbursement or indemnity, or to the extent that the insured has breached its

duty to cooperate;

(q) there is no coverage under the Century Policies to the extent that theinsured has impaired Plaintiffs rights of subrogation, indemnity or contribution;

(r) there is no coverage under the Century Policies to the extent that anyapplicable statute of limitations or contractual limitation period has expired;

(s) there is no coverage under the Century Policies to the extent that theUnderlying Claims seek injunctive or equitable relief (including the costs of complying with

equitable relief or government regulations or directives) or for settlements or judgments with

respect thereto;

(t) coverage is barred under the Century Policies to any extent that theUnderlying Claims are claims for which the insured may be held liable under any workmens

compensation, unemployment compensation or disability benefits law, or under any similar law;



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(u) coverage is barred under the Century Policies to the extent the UnderlyingClaims seek recovery for bodily injury to an employee of the insured arising out of and in the

course of the claimants employment by the insured;

(v) with regard to the Century Policies, Plaintiff further asserts andincorporates herein by reference any and all defenses to coverage that may be asserted under the

terms, conditions and exclusions of any underlying insurance policies, to the extent that the

Century Policies follow form to or incorporate the provisions of such underlying policies;

(w) coverage is barred under the Century Policies to the extent that the insuredsettled any underlying asbestos-bodily injury claim where the underlying claimant had not shown

sufficient evidence of exposure to asbestos, the insureds product, and/or the insureds premises,

or was otherwise unreasonable;

(x) coverage is precluded under the Century Policies to the extent that anyterms, conditions, definitions, exclusions, and endorsements of said policies apply to

Defendants asbestos-related bodily injury claims.

COUNT II

(Declaratory Judgment)

25. Plaintiff incorporates herein by reference paragraphs 1 through 24 set forth abovein this Complaint.

26. As set forth in Count I above, Plaintiff has no obligation under the CenturyPolicies, either in whole or in part, to indemnify Defendant for losses arising in connection with

the Underlying Claims, to reimburse Defendant for defense costs incurred in defending such

Underlying Claims, or to provide Defendant a defense against such Underlying Claims. In the

alternative, if such an obligation is found to exist for some such losses under some or all of the

Century Policies, Plaintiff seeks a declaration that:



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(a) if and to the extent that coverage for any asbestos-related bodily injuryclaims asserted against Defendant is determined to exist under the Century Policies, Plaintiff is

not obligated under any such policies until the limits of all applicable underlying policies,

deductibles, self-insured retentions, and/or applicable retained limits have been properly and

fully exhausted; and

(b) damages arising from said bodily injury claims must dividedpro rata, bytime on the risk, across all years in which the alleged exposure to asbestos occurred, such that

Plaintiff is only responsible for its share of covered losses allocated to the periods of the Century

Policies that exceed the limits of underlying coverage, self-insured retentions, and/or retained

limits; and

(c) any indemnity for the Underlying Claims and/or defense costs allocated tothose time periods for which Defendant did not purchase insurance coverage, for which no

relevant insurance coverage is known to exist, for which any relevant insurance coverage has

been exhausted, or for which insurance coverage is otherwise unavailable, must be borne by

Defendant.

WHEREFORE, Plaintiff respectfully requests that the Court:

(a) Declare that Plaintiff has no obligation to defend or indemnity Defendantwith respect to some or all of the Underlying Claims;

(b) In the alternative, declare that damages, if any, arising from an UnderlyingClaim must be allocatedpro rata over all years in which the alleged exposure to asbestos

occurred and further declare the respective rights and obligations of the parties under the Century

Policies, and declare the limits of any obligation of Plaintiff to defend and/or indemnify

Defendant for costs incurred with respect to some or all of the Underlying Claims;



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(c) Award Plaintiff its costs; and(d) Grant Plaintiff such other and further relief as may be necessary and

appropriate under the circumstances.

DANNA MCKITRICK P.C.

By: ___/s/ John F. Cooney________________John F. Cooney, #32522MO7701 Forsyth Boulevard, Suite 800St. Louis, Missouri 63105(314) 726-1000(314) 725-6592 (fax)[email protected]

Of counsel:

WHITE AND WILLIAMS LLP

Patricia B. Santelle,pro hac vice pendingShane R. Heskin,pro hac vice pendingOne Liberty Place, Suite 1800Philadelphia, PA 19103-7395(215) 864-6329(215) 399-9603 (fax)

Attorneys for PlaintiffCentury Indemnity Company

7806355v17795458v.17810254v.1



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LAST NAMEFIRST

NAME

MIDDLE

INITIALCAPTION VENUE

Walker RobertRobert and Helen Walker v. A.H. Voss Company, etal. Including Anheuser Busch

In San Francisco County Superior CCalifornia

Williams GloriaGloria Williams, et al. v. A.H. Voss Company, et al.including Anheuser Busch


Yager IrmaIrma Yager, et al. v. ABEX Corp., et al. includingAnheuser Busch


Cashen BillBill Cashen v. Northern Peabody, Inc. v. Anheuser

BuschGrimes Douglas

Douglas Grimes, et al. v. Exxon Corporation, et al.including Anheuser Busch

In the 57th Judicial District Court of BCounty, Texas

McHenry Charlie Charlie and Barbara McHenry In California Superior Court of San F

Zuniga Espiridion Zuniga Espiridion v. Anheuser Busch Odessa, Texas

West Richard A.Richard A. West, et al. v. Anheuser-Busch, Inc., etal.

Van Nuys, California

Hooker Dorothy I.Dorothy I. Hooker, et al. v. 3M Company includingAnheuser Busch, Inc.

149 District Court of Brazoria Count

Fandi JohnJohn Fandl, James Horvath, and Barbara Vogler, v.Anheuser-Busch, Inc.

In The Circuit Court for the City of SCounty, Missouri, Twenty Second JCircuit

7733213v.1

Case: 4:11-cv-01097-CEJ Doc. #: 1-1 Filed: 06/17/1


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7731899v.1

Exhibit B

Policies Issued by Century Indemnity Company (as Successor to CCI

Insurance Company, as Successor to Insurance of North America) to

Anheuser-Busch, Inc.

Policy Number Policy Period

XBC152493 07/01/80 06/30/81

XBC152728 07/01/81 06/30/82

XBC153752 07/01/82 06/30/83

XBC154304 07/01/83 06/30/84XBC154407 07/01/84 06/30/85

XBC154493 07/01/85 06/30/86

XBCGO313755 07/01/86 06/30/87

XBCG1042051-9 07/01/87 06/30/88

XOOG1023518-2 07/01/88 06/30/89

XOOG10238158 07/01/89 06/30/90

XOOG1157205-4 07/01/90 06/30/91

XOOG1157422-1 07/01/91 06/30/92

EXHIBIT B

Case: 4:11-cv-01097-CEJ Doc. #: 1-2 Filed: 06/17/11 Page: 1 of 1 PageID #: 17


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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

)

, )

)

Plaintiff, )

)

v. ) Case No.)

, )

)

Defendant, )

)

ORIGINAL FILING FORM

THIS FORM MUST BE COMPLETED AND VERIFIED BY THE FILING PARTY

WHEN INITIATING A NEW CASE.

THIS SAME CAUSE, OR A SUBSTANTIALLY EQUIVALENT COMPLAINT, WAS

PREVIOUSLY FILED IN THIS COURT AS CASE NUMBER

AND ASSIGNED TO THE HONORABLE JUDGE .

THIS CAUSE IS RELATED, BUT IS NOT SUBSTANTIALLY EQUIVALENT TO ANY

PREVIOUSLY FILED COMPLAINT. THE RELATED CASE NUMBER IS AND

THAT CASE WAS ASSIGNED TO THE HONORABLE . THIS CASE MAY,

THEREFORE, BE OPENED AS AN ORIGINAL PROCEEDING.

NEITHER THIS SAME CAUSE, NOR A SUBSTANTIALLY EQUIVALENT

COMPLAINT, HAS BEEN PREVIOUSLY FILED IN THIS COURT, AND THEREFORE

MAY BE OPENED AS AN ORIGINAL PROCEEDING.

The undersigned affirms that the information provided above is true and correct.

Date:

Signature of Filing Party

Case: 4:11-cv-01097-CEJ Doc. #: 1-4 Filed: 06/17/11 Page: 1 of 1 PageID #: 20Reset

Century IndemnityCompany

4:11-CV-1097Anheuser-Busch, Inc.

06/17/2011 /s/ John F. Cooney


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AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)

))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Case: 4:11-cv-01097-CEJ Doc. #: 1-5 Filed: 06/17/11 Page: 1 of 2 PageID #: 21Reset

Eastern District of Missouri

Century Indemnity Company

4:11-CV-1097

Anheuser-Busch, Inc.

Anheuser-Busch, Inc.Registered Agent: CT Corporation System

120 South Central AvenueClayton, Missouri 63105

John F. Cooney

Danna Mc.Kitrick, P.C.7701 Forsyth, Suite 800St. Louis, Missouri 63105


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AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on(date) .

I personally served the summons on the individual at (place)

on (date) ; or

I left the summons at the individuals residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individuals last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of(name of organization)

on (date) ; or

I returned the summons unexecuted because ; or

Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:


4:11-CV-1097

0.00

CENTURY INDEMNITY COMPANY v. ANHEUSER-BUSCH, INC. Complaint

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