Mayor and City Council of Baltimore v. Utica Mutual Ins. Co.

MURPHY, Chief Judge. The issues in these consolidated appeals from the Circuit Court for Baltimore City arise out of an omnibus pre-trial Order entered on May 16, 2001 by the Honorable Gary I. Strausberg in multiple garnishment proceedings initiated by the Mayor and City Council of Baltimore (“City”) against several insurance companies (“garnishees” oí “insurers”) that provided liability coverage and excess coverage to Croker, Inc. (“Croker”), a subcontractor who installed asbestos-containing thermal insulation products in public buildings. Summary As a result of the pre-hearing conference held pursuant to Maryland Rule 8-206, this Court issued an Order calling upon the parties to address the following rulings: 1. Ruling on Insurers’ Motion to Set Aside or, in the Alternative, to Revise the Consent Judgment; 2.

Ruling on Zurich [Insurance Companyj’s Motion for Summary Judgment Based on the Products Hazard Exclusion; 3. Ruling on Utica Mutual [Insurance Comp'anyjs Motion •for Summary Judgment on the Issues of Trigger of Coverage and Allocation, which other Insurers joined; ²⁶⁵ 4. Ruling on U.S. Fire Insurance Company’s Motion for Summary Judgment (based on absence of policy); 5. Ruling on Federal Insurance Company’s Motion for Summary Judgment (based on exhaustion); and 6.

Ruling on Insurers’ Motion to Strike Plaintiff the Mayor & City Council of Baltimore’s Jury Demand. We hold that in garnishment proceedings, summary judgment in favor of a particular garnishee is a final judgment as to that garnishee. We shall deny the garnishees’ motion to dismiss the City’s appeals from the. entries of summary judgment based on the products hazard exclusion, on allocation, and on trigger of coverage. We shall dismiss the City’s appeals from the order striking its jury request, and from the court’s refusal to deny garnishees’ request to reopen the consent judgment.

We shall also dismiss the cross-appeals filed by Utica Mutual. We conclude that the products hazard exclusion applies to claims of negligent failure to warn, and therefore affirm the entry of summary judgment in favor of American Guarantee and Liability Insurance Company and Zurich on that issue, as to primary and umbrella policies for the period from September 5,1979 through September 5,1980, and the primary policy for the period from September 5, 1980 to June 2, 1981. We vacate the entry of summary judgment as to the Zurich umbrella policy for the September 5, 1980 to September 5, 1981 period, because of a significant discrepancy in the record with regard to the correct policy number for the products hazard exclusion, and remand this issue to the circuit court for further consideration. 1 ²⁶⁶ We conclude that an injury-in-fact/continuous trigger of coverage is applicable for long term and continuing damage posed by the installation and continued presence of asbestos in buildings, and shall therefore vacate the circuit court’s judgment in favor of insurers whose coverage began after December 31, 1980. We remand this issue for further proceedings consistent with our opinion.

We conclude that liability for the damages claimed in this matter shall be allocated—on a pro rata basis from the perspective of time on the risk—among triggered primary insurance policies and periods of self-insurance (viz., when Croker was either “self-insured” or chose not to buy products liability coverage that was available). We shall affirm the entry of summary judgment in favor of Federal Insurance Company on the issue of exhaustion because we have determined that as a matter of law that, under an appropriate allocation and horizontal exhaustion rule, Federal’s excess policy will not be reached. 2 Background These appeals represent yet another chapter in asbestos-abatement litigation that commenced on September 24, 1984, when the City sued numerous entities deemed responsible in some manner for the installation of asbestos-containing building materials (ACBMs) in certain city buildings. 3 According to the City, the various defendants should be held responsible for the cost of removal, management, abatement or remediation of ACBMs. 4 With the parties’ consent, the circuit court ²⁶⁷ divided the case into separate proceedings based on the nature of the asbestos product that had been installed: “Group I” involved surface treatment products; “Group II” involved thermal insulation products; and “Group III” involved flooring materials. 5 The Group III litigation settled prior to trial. On June 5, 1992, a jury returned verdicts in favor of the City against three of the Group I defendants-United States Gypsum Company, Hampshire Industries, Incorporated and Asbestospray Corporation, 6 awarding (1) compensatory dam ²⁶⁸ ages against all three defendants in the amount of $17,208,807.14, and (2) punitive damages in the aggregate amount of $6,000,000 against United States Gypsum ($4,000,-000) and Asbestospray ($2,000,000). The circuit court entered a final judgment on that verdict, and the defendants noted appeals.

While the appeals were pending in this Court, the Court of Appeals issued a writ of certiorari. In United States Gypsum Co. v. Mayor & City Council of Baltimore, 336 Md. 145 , 647 A.2d 405 (1994), while upholding the compensatory damage award and reversing the punitive damage award, the Court of Appeals held that (1) tort remedies were available to the City in this action for property damage, 7 (2) the defendants were under a continuing duty to warn of product defects after the moment of installation and sale, 8 and (3) the defendants would be held responsible for general “state of the art” knowledge about the hazards posed by their product. 9 The Court of Appeals had another occasion to conduct a direct review of Group I proceedings when two insurance companies, North River Insurance Company and United States Fire Insurance Company, as garnishees in the City’s attempt to collect the Group I award against Asbestospray, appealed a default judgment. 10 North River Insurance Co. v. Mayor & City Council of Baltimore, 343 Md. 34 , 680 A.2d 480 (1996). ²⁶⁹ The City-Croker Settlement The issues before us arise out of a settlement reached in the Group II litigation. 11 One of the Group II defendants was Croker, a subcontractor that installed asbestos thermal insulation in a number of Baltimore City public buildings. 12 Settlement discussions between Croker and the City were conducted throughout 1993, and the parties reached a settlement on December 29, 1993. A consent judgment for $5,018,989.44 was filed in the circuit court on January 4, 1994. The City is now attempting to collect this amount, plus applicable interest, from the insurance companies that provided coverage to Croker during the period of time that is relevant to this litigation.

The City requested the issuance of writs of garnishment against insurance proceeds and credits allegedly payable to Croker by a number of its insurance carriers. The writs were executed and the garnishees filed timely answers thereto. The City in turn replied. 13 The issues thus joined, the parties ²⁷⁰ filed a host of pre-trial motions, 14 and the appeals now before us stem from Judge Strausberg’s rulings on certain of those motions. 15 The Circuit Court’s January 21, 2000 Order Zurich Insurance Company, joined by American Guarantee Insurance Company, 16 moved to set aside the consent judg ²⁷¹ ment, and the City filed a Cross-Motion to Strike Insurers’ Affirmative Defenses. In a Memorandum Opinion filed on January 21, 2000, while rejecting the City’s arguments that (1) the carriers lacked standing to challenge the consent judgment for fraud, and (2) the garnishees were precluded from contesting that Judgment by “principles of finality,” Judge Strausberg concluded that Zurich is not entitled to the relief it seeks as a matter of law as there is a genuine dispute as to material facts.

Md. Rule 2-501. Whether all or part of the consent judgment was procured by fraud or collusion is an open issue not susceptible to resolution as a matter of law at this point in time. The Circuit Court’s May 16, 2000 Order The parties continued to skirmish over pre-trial motions. On April 17 and May 2, 2000, Judge Strausberg held hearings on their legal arguments.

In a Memorandum Opinion filed May 16, 2000, Judge Strausberg (1) granted a majority of the garnishees’ motions for summary judgment, 17 (2) deferred ²⁷² ruling on Zurich’s motion to set aside the consent judgment, (3) struck the City’s demand for a jury trial, and (4) denied the City’s Motion to Strike the garnishees’ affirmative defenses. These appeals and cross-appeals followed. Jurisdiction As a preliminary matter, we must determine whether we have jurisdiction pursuant to Maryland Code (1974 and 1998 RepLVol.), §§ 12-301, 12-308 of the Courts and Judicial Proceedings Article. Before the Court is a motion to dismiss the City’s appeals, filed by American Guarantee, Zurich, U.S. Fire and St. Paul Fire & Marine. 18 According to these appellees, the City has no right to note its numerous appeals from nonfinat judgments that have not resolved all of the claims against all of the parties in this garnishment proceeding.

According to the City,. because the garnishment proceedings have been initiated against separate insurers, and are separate and distinct from one another, summary judgment as to a particular insurer constitutes a final, appealable, judgment that has effectively ended the litigation against that insurer. 19 The City also argues for dismissal of the cross-appeals filed by ²⁷³ Utica Mutual Insurance Company from the circuit court’s refusal to grant Utica’s motions for summary judgment. The Final Judgment Rule Maryland Rule 2-602, in pertinent part, provides: (a) Generally.—Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment; (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. (b) When allowed.—If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment: (1) as to one or more but fewer than all of the claims or parties; ... The Court of Appeals has recently reaffirmed the well-established rule that, subject to certain exceptions, an appeal may be taken to the Court of Special Appeals under Maryland Code, § 12-301 of the Courts and Judicial Proceedings Article, only from a “final judgment entered in a civil or criminal case by a circuit court.” In construing that statute, we have held that, if a ruling of the Circuit Court is to constitute a final judgment, it must, among other things, be an “unqualified, final disposition of the matter in controversy.” Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767, 773 (1989); Davis v. Davis, 335 Md. 699, 711 , 646 A.2d 365, 370 (1994).

O’Brien v. O’Brien, 367 Md. 547, 554 , 790 A.2d 1, 5 (2002). • “In the context of multiple-claim or multiple-party litigation, or both, the purpose of the [final judgment] mies is to avoid ²⁷⁴ the costs, delays,' frustrations, and unnecessary demands on judicial resources occasioned by piecemeal appeals.” Planning Board of Howard County v. Mortimer, 310 Md. 639, 645-46 , 530 A.2d 1237, 1240-41 (1987). Final Judgments in Garnishment Proceedings Garnishments are intended to enforce judgments. See Parkville Federal Savings Bank v. Maryland National Bank, 343 Md. 412, 418 , 681 A.2d 521, 524 (1996). “Garnishment is a remedy created and controlled by statute.” The Catholic University of America v. Bragunier Masonry Contractors, Inc., 139 Md.App. 277, 293 , 775 A.2d 458, 467 (2001), aff'd, 368 Md. 608 , 796 A.2d 744 (2002). It is a “statutory proceeding whereby a [judgment debtor’s] money or property in possession of another are applied to payment of the former’s debt to a third person.” 20 Chromacolour Labs, Inc. v. Snider Brothers Property Management, Inc., 66 Md.App. 320 , 327-28 n. 4, 503 A.2d 1365 , 1369 n. 4 (1986). “A garnishment proceeding is, in essence, an action by the judgment debtor for the benefit of the judgment creditor which is brought against a third party, the garnishee, who holds the assets of the judgment debtor.

An attaching judgment creditor is subrogated to the rights of the judgment debtor and can recover only by the same right and to the same extent that the judgment debtor might recover.” Bragunier Masonry Contractors, Inc. v. The Catholic University of America, 368 Md. 608, 622 , 796 A.2d 744, 752 (2002) (quoting Parkville Federal Savings Bank, 343 Md. at 418 , 681 A.2d at 524 ); see Fico, Inc. v. Ghingher, 287 Md. 150, 159 , 411 A.2d 430, 436 (1980). See also International Bedding Co. v. Terminal Warehouse Co., 146 Md. 479, 488 , 126 A. 902, 905 (1924); see generally Simpson v. Consolidated Construction Services, Inc., 143 Md.App. 606 , 795 A.2d 754 (2002). ²⁷⁵ These appeals present two issues that involve the nature of garnishment litigation: (1) whether, and to what extent, a garnishment constitutes a proceeding that is separate from the “underlying action” that created the judgment (even though a garnishment proceeding is “filed in the same action”); and (2) whether the attempts to collect property or credits of the judgment debtor that are in the hands of different garnishees constitute separate and distinct garnishment proceedings. A garnishment of a judgment debtor’s property has “many of the attributes of a separate cause of action,” and a garnishee may respond to the writ “in a similar manner to a defendant pleading in an ordinary action.” C. Brown, Introduction to Maryland Civil Litigation, § 6.34, 200-201 (1982). Thus, on the question of whether garnishment proceedings against separate insurers fall squarely within the confines of the underlying action, or are sui generis, garnishment has a separate character in those cases where the purported garnishee contests the process.

Under Maryland Rule 2-645(g), when a judgment creditor replies to a garnishee’s answer to the writ, “the matter shall proceed as if it were an original action between the judgment creditor as plaintiff and the garnishee as defendant and shall be governed by the rules applicable to civil actions.” Maryland Rule 2-645(e) expressly provides that the “garnishee may assert any defense that the garnishee may have to the garnishment, as well as any defense that the judgment debtor could assert.” According to the Honorable Paul V. Neimeyer, “[t]he date of the filing of a reply under this rule is analogous to the date that a complaint is filed.” Commentary on the New Maryland Rules of Civil Procedure, 43 Md.L.Rev. 669, 857 (1984). See also Paul V. Neimeyer and Linda M. Schuett, Maryland Rules Commentary at 521 (1992). The Court of Appeals Standing Committee on Rules of Practice and Procedure has discussed the nature of property garnishment proceedings in cases in which the issue had been joined by the judgment creditor’s reply, in contrast to those ²⁷⁶ routine situations where attachment and garnishment were virtually pro forma. See Court of Appeals Standing Committee on the Rules of Practice and Procedure, Minutes, March 12 and 13,1982, at 37-39, noting: Several of the members expressed concern about the requirements of opening a new case. [Judge] Niemeyer pointed out that a new case involves additional process not required by the current garnishment practice....

The Reporter commented that the requirement of a new suit affords protection for the garnishee; election, of jury trial, discovery, and all other procedural safeguards would be available. Mr. Smith noted that in some counties it is current practice to docket the garnishment proceeding as a new case against the garnishee. Mr. Bowen suggested that the full panoply of process associated with a new case will only be involved where the garnishee had money of the debtor but refuses to disgorge it.... ... It was proposed that current practice be preserved to govern the 95% untroublesome garnishments and the type of procedure.presented in this draft be reserved to govern the 5% contested cases....

Mr. Bowen maintained that ... where the creditor contests the response filed by the garnishee that the problem cases are distinguished from the majority of garnishments.... The next month, the following explanatory note was placed in the Committee minutes: [The proposed garnishment rule] has been redrafted with the intent of retaining the essence of current garnishment practice for use in the majority of cases and of making special provision for the few cases where controyersy between the judgment creditor and garnishee requires the full panoply of a litigation action. 21 Minutes, April 16,1982, at 21. We hold that summary judgments in favor of some, but not all, of the garnishees constitute appealable final judg ²⁷⁷ ments because each garnishment initiated against a different insurer constitutes a separate and distinct proceeding. Thus, a summary judgment that terminates the proceeding against a specific garnishee constitutes a final appealable judgment as to that garnishee. 22 In light of our conclusion that garnishment proceedings are separate cases, even though filed in the underlying action, we shall deny the motions to dismiss the City’s appeals from the entry of summary judgment in favor of Zurich Insurance Company and American Guarantee Insurance Company, and shall review the following rulings of the circuit court: 1.

The circuit court’s entry of summary judgment on Federal Insurance Company’s Motion for Summary Judgment on the issue of exhaustion; 2. The circuit court’s entry of summary judgment on Zurich Insurance Company’s and American Guarantee’s motions for summary judgment based on the product’s hazard exclusion; and 3. The circuit court’s entry of summary judgment on St. Paul Fire and Marine Insurance Company’s (joined by Zurich) motions for summary judgment relating to trigger of coverage. The City has also appealed the circuit court’s May 16, 2000 decision to vacate its January 21, 2000 denial of the Motion to Set Aside the Consent Judgment filed by Zurich Insurance Company and American Guarantee.

Judge Strausberg had originally denied that motion, effectively treating it as a request for summary judgment that required further ²⁷⁸ development of the facts. On May 16, 2000, however, Judge Strausberg revisited this issue and ruled that his earlier consideration of this question had been premature. It is true that the City would have a right to an immediate appeal from an order vacating an enrolled judgment. Ventresca et ux. v. Weaver Brothers, Inc., 266 Md. 398, 403 , 292 A.2d 656, 659 (1972).

In this case, however, the City has appealed a decision to decide a motion to vacate. A party has no right to appeal a circuit court’s ruling that it will-at some point in the future-decide whether there is merit in a motion to vacate a judgment. The parties have expended a considerable amount of effort and argument on this issue, but the decision to reconsider an earlier denial of a motion to vacate judgment is simply not an appealable order. 23 At this juncture, the consent judgment, which the City seeks to maintain, remains in effect. We therefore dismiss the City’s appeal of the decision to consider Zurich’s “Motion to Revise or Set Aside Consent Judgment—Collusion.” 24 Collateral Order The City contends that the order striking a jury trial falls under the “collateral order” doctrine, which provides for appellate review of a “narrow class of interlocutory orders [that are] treated as final judgments without regard to the ²⁷⁹ posture of the case.” In re: Franklin P., 366 Md. 306, 326 , 783 A.2d 673, 685 (2001); Harris v. Harris, 310 Md. 310, 315 , 529 A.2d 356, 358-59 (1987); Baltimore Police Dept. v. Cherkes, 140 Md.App. 282, 298 , 780 A.2d 410, 419 (2001).

It is well settled that, to fall within the [final judgment] exception, the order appealed from must meet four requirements: (1) it must conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment. In re: Franklin P., 366 Md. at 327 , 783 A.2d at 685 ; Ashcraft & Gerel v. Shaw, 126 Md.App. 325, 341 , 728 A.2d 798, 806 (1999). The first three elements are satisfied in this case. The denial of the jury trial “conclusively determined the disputed question,” and clearly resolved an important issue that was separate from the merits.

We are persuaded, however, that in this case the denial of a jury trial will be reviewable on appeal from a final judgment. In Old Cedar Development Corp. v. Jack Parker Construction Corp., 320 Md. 626 , 579 A.2d 275 (1990), the Court of Appeals dismissed an appeal from an order striking a jury trial, rejecting the contention that the order to strike was a “final” order under section CJ 12-301. The Court held that the order striking the jury trial in that case was not “effectively unreviewable on appeal from a final judgment.” 320 Md. at 632-33 , 579 A.2d at 278-79 . While the Old Cedar Court did note that, “[u]nder entirely different circumstances [an] order denying a jury trial might well satisfy the requirements of the collateral order doctrine,” Id. at 633 n. 1, 579 A.2d at 279 n. 1 (citing Kawamura v. State, 299 Md. 276 , 473 A.2d 438 (1984)), 25 we shall hold that the denial of a jury trial in this ²⁸⁰ instance does not constitute a collateral order because the circuit court’s action is not “effectively unreviewable on appeal[.]” We shall therefore dismiss the City’s appeals on this issue.

Utica Mutual’s Cross Appeals Utica Mutual Insurance Company has filed two cross-appeals from the denials of two summary judgment motions. The denial of a motion for summary judgment is normally not a final judgment from which an appeal may be taken. Porter Hayden Company v. Commercial Union Insurance Co., 339 Md. 150, 164 , 661 A.2d 691, 698 (1995). A refusal to enter summary judgment does not “finally dispose” of any matter, but instead allows the case to proceed.

See Ralkey v. Minnesota Mining and Mfg. Co., 63 Md.App. 515, 523 , 492 A.2d 1358, 1362 (1985). It is true that in limited circumstances, a refusal to enter summary judgment may constitute an appealable collateral order. 26 That exception does not apply here because the denials at hand lack “the characteristic of finality.” Porter Hayden, 339 Md. at 164 , 661 A.2d at 698 . We shall dismiss ²⁸¹ Utica’s cross-appeals from the denials of its summary judgment motions. 27 Motion to Strike Affirmative Defenses The City filed a cross-motion to strike four affirmative defenses that had been raised by the Insurers.

That motion was summarily denied by the circuit court. 28 The circuit court’s refusal to strike the insurers’ affirmative defenses is not a final, appealable order. Even if the garnishees cannot overturn the consent judgment in the underlying action, they are not precluded from disputing the amount of that judgment in the garnishment proceeding. 29 We shall there ²⁸² fore dismiss the City’s appeal from the denial of its motion to strike. Coverage Issues The appeals from summary judgment 30 entered in the garnishment proceedings involve the issue of whether the City’s damages were excluded from coverage by “Products Hazard Exclusion” clauses in Comprehensive General Liability policies, as well as coverage of issues of “trigger,” “allocation” and “known loss.” Products Hazard Exclusion The City argues that summary judgment should not have been entered in favor of Zurich and American Guarantee (the “Products Hazard Motion”) on the ground that property damage is excluded by the terms of the CGL primary and umbrella policies issued to Croker by Zurich Insurance Company and American Guarantee and Liability Insurance Company. The Policies at Issue Croker purchased third-party Comprehensive General Lia ²⁸³ bility (CGL) insurance policies from a number of carriers. 31 American Guarantee and Liability Insurance Company issued policy TOP 74-74-079, a general liability policy to Croker for the period September 5, 1979 through September 5, 1980.

The record also shows that an umbrella policy, No. 89-28-612, was issued to Croker by Zurich for the period of September 5, 1980 through September 5, 1981. 32 There also appears a “schedule of forms and endorsements” for a Policy No. 89-28- ²⁸⁴ 611 issued by Zurich, effective September 1, 1980. Endorsement No. 38 excludes from coverage “The Products Hazard [and] the Completed Operations Hazard.” Section II of the American Guarantee Policy, entitled “Comprehensive General Liability Coverage with Optimal Extended Protection,” 33 provides the following coverage: The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence[.] Policy No. TOP 74 74 079, Section II. The policy includes the following definitions: “occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured; “products hazard” includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others; “property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period[.] Policy No. TOP 74 74 079, “Definitions—Section II.” The Zurich Insurance Company umbrella policy, No. 89-28-612, provided coverage from September 5, 1980, to September 5, 1981. Under this policy, Zurich agreed to “indemnify the ²⁸⁵ insured for ultimate net loss in excess of the retained limit hereinafter stated which the insured shall become legally obligated to pay as damages because of ...

B. property damage ... to which this policy applies, caused by an occurrence.” These policies, in one form or another, purport to limit the carriers’ obligations to indemnify the insured by means of various exclusions. 34 The “purpose of the products hazard exclusion is to exempt products liability claims made against the insured from liability coverage.” Brewer v. The Home Insurance Company, 147 Ariz. 427, 429 , 710 P.2d 1082, 1084 (App.1985). The American Guarantee primary policy includes a “Products and Completed Operations Coverage” exclusion, which removes from coverage “bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard,” as defined in the primary policy. The policy contains a Products and Completed Operations Hazards Exclusion that provides: A. Products and Completed Operations Hazards Exclusion: to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard. The policy then refers, inter alia, to the applicable definitions of “products hazard” and “property damage.” The Zurich umbrella policy also removes from coverage: property damage to (1) property owned by the insured, or (2) the insured’s products arising out of such products or any part of such products, or (3) work performed by or on behalf of the insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith, or (4) property rented to, occupied or ²⁸⁶ used by or in the care, custody or control of the insured to the extent the insured is under contract to provide insurance therefor[.] Zurich Umbrella Policy No. 89-28-612 “II Exclusions.” The Zurich policy defines “occurrence” to mean: with respect to subsection (1) of the definition of personal injury and with respect to property damage, an accident or happening or event or injurious exposure to conditions, which results, during this policy period, in such personal injury or property damage neither expected nor intended from the standpoint of the insured.

All ultimate net loss arising out of continuous or repeated exposure to substantially the same conditions shall be considered as arising out of one occurrence. Zurich Umbrella Policy No. 89-28-612 “VII Definitions” (No.) 7 “Occurrence.” “Products hazard” includes: personal injury and property damage 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 or property damage occurs away from premises owned by or rented to the insured and after physical possession of such products has been relinquished to others[.] Zurich Umbrella Policy No. 89-28-612 “VII Definitions” (No.) 9 “Products Hazard.” “Property Damage” is defined as “injury ‘to or destruction of property.’ ” Id., No. 10. Negligent Failure to Warn In its amended complaint, the City asserted a negligence action based on Croker’s alleged failure to warn of the hazards presented by asbestos. It argues to us that a negligent failure to warn claim is not excluded under the Product Hazards Exclusion, and thus the CGL policies extended coverage to the claims it has asserted.

According to the City, because the failure to warn allegation sounds in negligence, it is outside of the Products Hazard Exclusion. 35 ²⁸⁷ Judge Strausberg entered summary judgment for the Insurers on this issue, ruling that a failure to warn of the inherent dangers of asbestos was a factor so closely related to the product that this claim too was excluded from coverage. This ruling expressly relied upon Celotex Corp. v. AIU Insurance Company (In re Celotex Corp.), 149 B.R. 997 (Bankr. M.D.Fla.1993), in which the Bankruptcy Court held that the products hazard exclusion in the liability policies in question deleted from coverage the insured’s negligent failure to warn of the inherently dangerous properties of asbestos. An injured party may assert a claim for failure to warn of the latent defects of a product under theories of strict liability, negligence, and warranty.

Maryland has long recognized a duty on the part of sellers to warn of latent dangers attendant upon a proper use of the products they sell, where injury is foreseeable. The standard applied in that regard, under all three theories of negligence, breach of implied warranty, and strict liability, has been that stated in Restatement (Second) of Torts § 388. Dechello v. Johnson Enterprises, 74 Md.App. 228, 236 , 536 A.2d 1203, 1207 , cert. denied sub nom. Albert E. Pecora Importers v. DeChello, 312 Md. 601 , 541 A.2d 964 (1988). “A product may become defective because of a failure to give an adequate warning.” ACandS, Inc. v. Abate, 121 Md.App. 590, 702 , 710 A.2d 944, 999 , cent. denied sub nom.

Crane v. Abate, 350 Md. 487 , 713 A.2d 979 (1998), cert. denied sub nom. John Crane, Inc. v. Abate, 525 U.S. 1171 , 119 S.Ct. 1096 , 143 L.Ed.2d 95 (1999). In Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 , 601 A.2d 633 (1992), the Court of Appeals noted that in strict liability failure to warn cases, “negligence concepts to some extent have been grafted onto strict liability.” Id. at 435 , 601 A.2d at 640 ; cf. Phipps v. General Motors Corp., 278 ²⁸⁸ Md. 387, 351, 363 A.2d 955, 963 (1976)(theory of strict liability not radical departure from traditional tort concepts). The defense of contributory negligence may be asserted in “failure to warn” negligence actions but that defense may not be asserted in strict liability actions.

See Zenobia, 325 Md. at 435 n. 7, 601 A.2d at 640 n. 7; see also Russell v. G.A.F. Corp., 422 A.2d 989 , 991 n. * (D.C.App.1980). Nevertheless, these two theories—negligence and strict liability failure to warn—have been described as nearly identical. In either instance the failure to warn causes the product to be defective with respect to its “latent dangerous characteristics.” In either instance, the duty to provide adequate warnings in essence “runs with the product,” and remains with the seller subsequent to the sale. Thus, the Court of Appeals has concluded that “a manufacturer of a defective product has a duty to warn of product defects which the manufacturer discovers after the time of sale.” Zenobia, 325 Md. at 446 , 601 A.2d at 645 .

The Court of Appeals has also stated that the continuing duty to warn is applicable to suits for property damage. See United States Gypsum, 336 Md. at 160 , 647 A.2d at 412 . An installer such as Croker, who “should have known” about the danger of the ACBMs, has a duty to provide adequate warnings about that product. Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 198-200, 203-04 , 604 A.2d 445, 455-57 (1992).

The supplier-installer is held to the same standard of awareness of the dangerous characteristics of asbestos, viz. “should have known,” whether the cause of action is denominated “strict liability” or sounds in negligence. See id. at 199-200 , 604 A.2d at 455 ; Zenobia, 325 Md. at 443 n. 11, 601 A.2d at 644 n. 11. Judge Strausberg relied on the Bankruptcy Court’s decision in Celotex because it, too, involved the nature and extent of insurance coverage, in an asbestos-related property damage case. There is, however, a split of authority on this issue.

In Scarborough v. Northern Assurance Co., 718 F.2d 130 (5th Cir.1983), the insured, a supplier of sand, filed a third- ²⁸⁹ party claim against two insurers, asserting a right to reimbursement for costs it had incurred in successfully defending a products liability action. The district court dismissed the claim, ruling that the insurers’ policies excluded coverage of claims arising out of the company’s silica products. The company appealed to the United States Court of Appeals for the Fifth Circuit, which framed the issue as: whether [the] complaint [in the underlying action], which alleged, among other things, that [the company] had furnished [plaintiffs] employers sandblasting material (sand) “without proper instructions for its use,” alleged a ground of liability against [the company] that was not excluded by the exclusion provisions of [insurers’] policies. Scarborough, 718 F.2d at 132.

Applying Louisiana law, the Scarborough Court held that a negligent failure to warn was not excluded by the “products hazard” exclusion. 36 In Harford Mutual Ins. Co. v. Moorhead, 396 Pa.Super. 234 , 578 A.2d 492 (1990), the Pennsylvania Superior Court concluded that a products hazard exclusion did not apply to allegations of negligent failure to warn.' In that case, manufacturers of wine making supplies marketed a sulphur strip that was designed to prepare a vessel for use in the fermentation of grapes. The strip would be ignited and placed inside the fermentation container in order to kill bacteria. The customer placed the strip inside a former whiskey barrel, which exploded because of the presence of alcohol vapors.

Litigation, followed, with plaintiffs asserting, inter alia, that ²⁹⁰ the defendants were negligent in failing to warn of the dangers posed by lighting the strip. In a declaratory action initiated by the defendants’ insurer, the trial court entered judgment in favor of the insured. The insurer appealed, contending that the “essence” of the underlying complaint was one of products liability, and not negligence, regardless of how drafted. The wine makers responded that the exclusion was inapplicable in this case.

The Pennsylvania Superior Court agreed with that argument, 37 explaining: Alleged negligence which does not involve the sale of a defective product is of a type which “occurs occasionally in the course of business and is a risk for which businesses buy general coverage.” ... To construe a “Products Hazard” exclusion to apply in a suit later brought against an insured where the product sold was not the cause of the damage, but was merely an incidental instrumentality through which the damage was done, would defeat the purpose of purchasing such a policy by rendering meaningless much of the stated coverage---- Thus, we conclude, as did this Court in Friestad [v. Travelers Indemnity Co., 260 Pa.Super. 178 , 393 A.2d 1212 (1978) ], that the “Products Hazard” exclusion applies only when a product, rather than a service, is the alleged cause in fact of damages or injury to a third person. Moorhead, 396 Pa.Super. at 242 , 578 A.2d at 496 (emphasis supplied, citations omitted). Following Moorhead, 38 the United States District Court for the Western District of Pennsyl ²⁹¹ vania concluded that the Pennsylvania Superior Court’s opinion “stands for the proposition that an insurer must accept a claim as stated in the complaint and cannot justify its decision to deny coverage by attempting to recharacterize the claim to fit within the terms of the exclusion.” Devich v. Commercial Union Ins., 867 F.Supp. 1230, 1235 (W.D.Pa.1994).

In Chancler v. American Hardware Mutual Insurance Co., 109 Idaho 841 , 712 P.2d 542 (1985), the Supreme Court of Idaho reached the same result. The plaintiff in an underlying tort action was injured when a crane he had been operating collapsed. In a declaratory judgment action against the seller’s insurance company, the trial court and Idaho’s intermediate appellate court agreed that the products hazard exclusion was applicable. The Idaho Supreme Court reversed, concluding that the exclusion did not apply.

Chancler, 109 Idaho at 847 , 712 P.2d at 548 ; cf. Mario Beauty Supply, 227 Mich. App. at 319-20, 575 N.W.2d at 329 (exclusion does not explicitly disavow coverage for damages resulting from failure to warn). In Celotex, the debtor-manufacturer sought a declaration regarding the scope of the “products hazard” exclusion in its liability policies, and asked the court to determine whether the definition of “products liability” or “products hazard” covered liability for asbestos-related property damage. The debtor company’s argument tracks the argument presented by the City in the case at bar: Debtor asserts a distinction must be made between those claims founded in strict liability, which requires a showing of a defective product, and those claims alleging mere negligent failure to warn, which does not require a showing of a defect in the product involved in the injury....

Thus, Debtor argues the claims are not directly related to products liability. 149 B.R. at 999-1000 . The Bankruptcy Court agreed with the insurance company, and rejected the debtor’s argument that its negligent failure to warn was “sufficiently removed from the nature of its asbestos-containing products to warrant ²⁹² classification as something other than products liability.” Id. at 1001 . The court noted Scarborough and Moorhead , but disagreed with those cases, explaining: In this case, however, the Court finds the alleged damages resulting from the failure to warn of the dangers involved in the use of the asbestos-containing products are sufficiently tied to the nature of Debtor’s products to warrant denominating the liability as products hazard.... The underlying complaints allege asbestos is a dangerous, defective product whether used properly or improperly.

Any liability based upon negligent failure to warn of those innate dangers, is directly associated with the product. 149 B.R. at 1001 . The court stated that, in the case of inherently dangerous products, “it is the failure to warn of those inherent dangers that makes the product defective and implicates the products hazard or products liability provisions of the policies.” 149 B.R. at 1002 . Other courts also agree with Celotex. As was explained by a Florida intermediate appellate court: The complaint against appellants did not allege that they sold the wrong product; or that they had a duty to warn of possible results of misuse [thereof]; or that [defendant] negligently failed to advise [plaintiffs] of additional available equipment which would safely adapt the [product] for a particular use.

On the contrary, it alleged that [defendant] was on notice of a dangerous condition created by. a product defect and did not warn of it. Thus, even though the complaint does contain an allegation of negligent failure to warn, it effectively alleges a bodily injury arising out of either the named insured’s product or reliance upon, a necessarily implied warranty with respect to its fitness. The negligence alleged is clearly that contemplated by the exclusions. K-C Manufacturing Co., Inc. v. Shelby Mutual Insurance Co., 434 So.2d 1004, 1006-07 (Fla. 1st DCA 1983).

See also Brewer, 147 Ariz. at 431 , 710 P.2d at 1086 (negligent instructions pertaining to product installation and failure to warn of ²⁹³ related danger fall within exclusion); accord, Laminated Wood Products, Co. v. Pedersen, 76 Or.App. 662, 671 , 711 P.2d 165, 170 (1985), review denied, 300 Or. 722 , 717 P.2d 630 (1986) (claim that insured failed to warn of unreasonably dangerous condition and negligently designed, manufactured and supplied product, alleged damage “arising out of named insured’s products”). See also Laidlaw Environmental Services (TOC) Inc. v. AETNA Casualty & Surety Company of Illinois, 338 S.C. 43 , 50-51, 524 S.E.2d 847 , 851 (Ct.App.1999); Massachusetts Insurance Insolvency Fund v. Eastern Refractories Co., Inc., Civil Action No. 89-4811 [1997 Mass.Super. LEXIS 589] (Suffolk Super. Ct. July 10, 1997) (Rouse, J.); cf. Flint v. Universal Machine Company, 238 Conn. 637, 649-50 , 679 A.2d 929, 935-36 (1996) (failure to warn allegation relates to and is part of defective workmanship claims).

In Fibreboard Corp. v. Hartford Accident and Indemnity Co., 16 Cal.App.4th 492 , 20 Cal.Rptr.2d 376 (1993), the plaintiffs in asbestos-in-buildings cases sought damages based on a variety of theories, including negligence and strict liability. In this particular appeal, Fibreboard, a manufacturer of asbestos-containing products, asked the California Court of Appeals to overturn a trial court’s entry of summary judgment in favor of the insurer on the ground that numerous claims were excluded under an asbestos products exclusion. Fibreboard argued to the appellate court that “claims based on theories such as concert of action [and] failure to disclose hazardous nature of products ... have ‘nothing to do with any product manufactured, sold, handled or distributed by Fibreboard’ ” and accordingly would not be subject to an exclusion limiting indemnity for products claims. The Court of Appeals rejected that argument, 39 explaining: ²⁹⁴ Within the framework of the Hartford policies and the continuum of coverage provided for liability stemming from operations and products, it is obvious that the traditional products claims in the underlying complaints, namely, those asserting negligent testing, design, manufacture and sale; strict liability for design and manufacturing defects; failure to warn; breach of warranties; misreprésentation. and the like, are within the four walls of the “products hazard” clause. 16 Cal.App.4th at 502 , 20 Cal.Rptr.2d at 382 .

It is true that there is a distinction between strict liability and negligence. 40 While they are not redundant causes of action, in the context of a defective product case, under either theory, it is the failure to warn that renders the product defective. 41 We therefore hold that the products hazard exclusion applies to claims for negligent failure to warn of the dangers of an inherently dangerous product such as asbestos in all of its forms. 42 Whether styled as “negligence” or “strict liability,” a complaint for failure to warn of the dangers of the asbestos-containing materials in this case seeks to recover for property damage “arising out of the named insured’s products.” We shall therefore affirm the entry of summary judgment in favor of American Guarantee as to its policy No. TOP ²⁹⁵ 74 74 079 for the period September 5, 1979 through September 5,1980, on the basis of the products hazard exclusion. We shall also affirm the summary judgment in favor of American Guarantee for the policy in effect from September 5, 1980 through June 2, 1981, and affirm the summary judgment in favor of Zurich for the umbrella policy that had been written for September 5, 1979 to September 5,1980. Own Products Exclusion We vacate the summary judgment entered in favor of Zurich with respect to the annual period from September 5, 1980 to September 5, 1981. In applying the products hazard exclusion to relieve Zurich from any potential indemnification liability on its umbrella policy for that period, the circuit court cited what is generally referred to as the “own products exclusion.” As noted by the Illinois Appellate Court, this exclusion by its terms does not apply to indemnification for damage inflicted on the property of persons other than the insured.

See United States Gypsum Co. v. Admiral Insurance Co., 268 Ill.App.3d 598, 633 , 643 N.E.2d 1226, 1248-49 , 205 Ill.Dec. 619 (1994), appeal denied, 161 Ill.2d 542 , 208 Ill.Dec. 370 , 649 N.E.2d 426 (1995). Zurich may be entitled to a judgment in its favor, as exclusion of coverage for this period of time will be controlled by the products hazard exclusion that purportedly exists as an endorsement to the 1979-1980 umbrella policy. But the record demonstrates confusion on this point, for it contains, as stated above, a schedule of endorsements with a policy number that is different from that employed to identify the Zurich umbrella policy. Although it is argued that the endorsements actually refer to Zurich No. 89-28-612, instead of 89-28-611 as written, the record shows that the effective dates for the documents differ, as do the agency or producer numbers.

There may be a logical explanation for these discrepancies, but the discrepancies must be resolved by the trier of fact. Trigger of Coverage Utica Mutual, joined by St. Paul, Zurich and American Guarantee, filed a motion for summary judgment on the ²⁹⁶ ground that (1) the City could not prove the amount of property damage that occurred during its policy period, and (2) it would not be technologically feasible to demonstrate such damage. Utica also contended that, because the “total amount” of property damage occurred at the moment of installation, damages sought by the City were not covered by insurance policies that were on the risk only after the asbestos was installed. 43 Utica’s motions were denied, but summary judgment was entered in favor of St. Paul and Zurich. Citing this Court’s decision in Harford Mutual Insurance Co. v. Jacobson, 73 Md.App. 670 , 536 A.2d 120 , cert. denied, 312 Md. 601 , 541 A.2d 964 (1988), for the proposition that “no insurers can be liable after manifestation of property damage[,]” the circuit court concluded: Discovery or manifestation of damage occurs on the date when appreciable property damage was actually discovered or should have been discovered.... [Liability will only extend to those insurers who provided coverage from the date of installation until the date, that" the City actually discovered or should have discovered, if acting reasonably, that the Croker installed, asbestos-containing thermal systems insulation was harmful.

The City argues that St. Paul and Zurich were not entitled to summary judgment on the ground that their policies covered periods subsequent to December 31, 1980. 44 The City also argues that' its knowledge of the asbestos' problem is irrelevant to the question of What Croker knew and what impact that knowledge has on Croker’s right to indemnification from its carriers. ²⁹⁷ According to the City, the circuit court erred in applying a trigger of coverage rule that has been discredited in Maryland, when it should have applied the “injury-in-fact” trigger applied by the Court of Appeals in Harford County v. Harford Mutual Insurance Co., 327 Md. 418 , 610 A.2d 286 (1992). According to St. Paul Fire & Marine Company, Zurich Insurance Company, and American Guarantee and Liability Insurance Company, the circuit court correctly entered judgment in their favor because their policies took effect after the manifestation of the City’s damages in this case, and this is a “trigger of coverage” question rather than a defense based on the concept of known loss. We are persuaded that, while the “injury-in-fact” is an appropriate trigger of coverage rule for asbestos-in-building property damages, this trigger does not preclude coverage under subsequent policies when there is continued exposure. “Trigger is a legal rule designed to determine when a policy must respond.” James M. Fischer, Insurance Coverage for Mass Exposure Tort Claims:- the Debate over the Appropriate Trigger Rule, 45 Dkake L.Rev. 625, 652 (1997). The policies do not refer to a “trigger”; “the term ‘trigger’ is merely a label for the event or events that under the terms of the insurance policy determines whether a policy must respond to a claim in a given set of circumstances.” Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 447-48 , 650 A.2d 974, 979 (1994) (citing Robert D. Fram, End Game: Trigger of Coverage in the Third Decade of CGL Latent Injury Litigation, in 10th Annual Insurance, Excess, and Reinsurance Coverage Disputes 9 (PLI Litig. & Admin.

Practice Course Handbook Series No. 454, [454 PLI/Lit 9] 1993)(“Fram”)). Although the CGL policy is essentially a standard form, divergent theories have been applied to the trigger of coverage. In Owens-Illinois, the New Jersey Supreme' Court reviewed a number of theories for the trigger of policy coverage, stating: ²⁹⁸ The most frequently offered theories for the trigger of coverage are (1) the exposure theory, (2) the manifestation theory, and (3) the continuous-trigger theory .... [and][a]t least two other less-frequently followed theories exist. One is the “injury-in-fact” (or “damages-in-fact”) approach, which holds that coverage is triggered by a showing of actual injury or damage-producing event....

Under that theory, coverage is triggered by “a real but undiscovered injury, proved in retrospect to have existed at the relevant time * * * irrespective of the time the injury became manifest.” ... [Ajfter an injury ... it may be inferred ... that the harm actually began sometime earlier ... [and fjinally, the “double-trigger” theory holds that injury occurs at the time of exposure and the time of manifestation, but not necessarily during the intervening period. Id., 138 N.J. at 449-51 , 650 A.2d at 980-81 (citations, footnotes and internal quotations omitted). See also Village of Morrisville Water & Light Dept. v. United States Fidelity & Guaranty Co., 775 F.Supp. 718, 730-31 (D.Vt.1991). The divergent views on the appropriate trigger of coverage can be explained by the fact that “third party CGL policies do not impose, as a condition of coverage, a requirement that the damages or injury be discovered at any particular point in time.” Montrose Chemical Corp. v. Admiral Insurance Company, 10 Cal.4th 645, 664 , 42 Cal.Rptr.2d 324 , 913 P.2d 878 , 887 (1995).

As stated by one commentator: Resolving the issue of when coverage is triggered is important because only a triggered policy potentially covers the injury. Courts have concluded that exposure, latency, occurrence of the injury, or manifestation-and even combinations of these-will trigger coverage. Corresponding trigger theories followed: the exposure theory, the manifestation theory, the triple-trigger theory, and the injury-in-fact theory. Lee H. Ogburn, The Progression of Trigger Litigation in Maryland—Determining the Appropriate Trigger of Coverage, its Limitations and Ramifications, 53 Md. Law Rev. 220, ²⁹⁹ 222 (1994) (“Ogburn”).

According to the Michigan Supreme Court, reference to specific trigger paradigms “can be deceiving,” because in the final analysis the court must apply policy language in particular factual contexts. See Gelman Sciences, Inc. v. Fidelity & Casualty Co., 456 Mich. 305, 317 , 572 N.W.2d 617, 622 (1998); Domtar, Inc. v. Niagara Fire Insurance Co., 563 N.W.2d 724, 733 (Minn. 1997). In Harford County , the Court of Appeals addressed the trigger of coverage question under a CGL policy in a case involving property damage resulting from environmental pollution. During the time period relevant to that litigation, the county operated five sanitary landfills.

For a portion of that period, the county carried standard form CGL liability insurance to cover, inter alia, county liability for property damage claims arising out of the operation of the landfills. The county initially obtained “accident” policies, designed to respond to “accidents which occurred during the policy period.” The CGL policy was revised in 1966 by the National Bureau of Casualty Underwriters, so the policies offered to the county covered property damage on an “occurrence” basis. Harford County, 327 Md. at 420 -21 & n. 1, 610 A.2d at 287 & n. 1. The policies in question expired in 1982.

Upon discovering that seepage from the landfills contaminated underlying groundwater, the county sought a declaratory judgment that each insurer’s policies provided coverage for property damage claims arising out of the seepage. The insurers moved for summary judgment on the ground that the county failed to establish that any damage due to the landfill seepage and resultant contamination had been sustained during the effective period of its policies. The circuit court entered summary judgment in favor of the insurer on the ground that any insurance coverage would be triggered upon the manifestation of damage, after the insurer’s policies were no longer on the risk. On appeal, the county argued that the “manifestation” trigger of coverage theory utilized by the circuit court had been rejected by a number of jurisdictions, and that it was contrary ³⁰⁰ to the rule established in Lloyd E. Mitchell, Inc. v. Maryland Casualty Company, 324 Md. 44 , 595 A.2d 469 (1991).

According to the county, a “continuous” trigger of coverage applied to the environmental property damage in that case, and insurance coverage was triggered “in each period during which damage took place and not only when damage was discovered or became manifest.” Id. at 430, 610 A.2d at 292 . The insurers argued “manifestation” was the appropriate trigger theory for environmental claims, because there was no damage under the policies until damage was actually discovered. The Court of Appeals held that the circuit court erred in “limiting the trigger of coverage to the time of manifestation or discovery of the property damage,” because “occurrence” CGL policies cover “liability inducing events occurring during the policy term.” Harford County, 327 Md. at 435 , 610 A.2d at 294 . Recognizing the difficulty in determining precisely when the environmental harm causes property damage, the Court of Appeals concluded that: “[Manifestation” is not the sole trigger of coverage in environmental pollution cases.

Rather, ... coverage under the policies may be triggered during the policy period at a time earlier than the discovery or manifestation of the damage. H* H* *)* The burden to show that property damage occurred within the coverage of the policies is, of course, upon the insured. Whether at any time during the policy period the discharge of contaminants into the soil and underlying groundwater - is of sufficient gravity to prove detectable “property damage” within the policies’ definition of that term is quite likely a matter for expert testimony. We decide nothing more in this case than that [the circuit court] was in error in limiting the trigger of coverage to the time of manifestation or discovery of the property damage. ³⁰¹ Id. at 435-36 , 610 A.2d at 294-95 ; 45 see also Bausch & Lomb v. Utica Mutual Ins.

Co., 355 Md. 566, 587-88 , 735 A.2d 1081, 1093 (1999). Harford County, 327 Md. at 436 , 610 A.2d at 295 . Alternative Trigger of Coverage The starting point for our analysis must be the language of the policies in question. 46 As set forth above, the American Guarantee CGL policy, as well as the pertinent St. Paul policies, provide that those carriers will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because ... of property damage to which this insurance applies, caused by an occurrence. American Guarantee primary Policy No. TOP 74 74 079, Section II.

St. Paul CGL policy. The insuring agreement for the Zurich umbrella policy for the period September 5,1980 to September 5,1981, similarly promises that Zurich will indemnify the insured for ultimate net loss in excess of the retained limit hereinafter stated which the insured shall become legally obligated to pay as damages because of ... ³⁰² property damage ... to which this policy applies, caused by an occurrence. Zurich umbrella Policy No. 89-28.612. Both the American Guarantee and St. Paul CGL policies define “occurrence” as an “accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured.” The Zurich umbrella policy provides a similar definition of occurrence.

According to George Tinker in his noted commentary on the CGL policy, “occurrence” is the “keystone to the total coverage structure.” Tinker, ante, at 231. He emphasizes that the “revised wording [of the 1973 CGL policy] should make clear that the definition encompasses not only the usual ‘accident’ but also the exposure to conditions which may continue over a long period of time.” Id. According to the insurers, Harford County does not apply to their specific argument that the manifestation of damage occurs prior to the inception of a particular policy, so that policy does not obligate the insurer to indemnify for prior manifested damage.' 47 We disagree. The continued presence of ACBMs in