Aluminum Company of America v. Accident and Casualty Insurance Co.

The full case caption appears at the end of this opinion. TALMADGE, J. — We are asked in this case to apply the law ofPennsylvania to resolve disputes between the Aluminum Company of America,its subsidiary Northwest Alloys, Inc. (Alcoa), and 167 insurers regardinginsurance coverage for environmental damage under comprehensive generalliability (CGL) policies and property insurance policies called differencesin conditions (DIC) policies. We accepted direct interlocutory review inthis case. RAP 2.2(d); RAP 4.4. We generally affirm the trial court’sdisposition of the issues in the case, but we reverse the trial court withrespect to its treatment of the issues of fortuity, the contractuallimitation periods, and the allocation of damages. FACTS [FOOTNOTE 1] Alcoa is a large, multinational aluminum producing company withindustrial locations across the United States and the world. In theordinary course of its business over the years, Alcoa generated wasteproducts that were stored in on-site disposal facilities, landfills, andlagoons; and sometimes discharged into the property of others. In recentyears, federal and state environmental agencies and private parties madeclaims against Alcoa for the cleanup of groundwater, surface water, andsoil contamination at disposal sites, lagoons, landfills, and other suchfacilities in Washington and around the country, all stemming from Alcoa’sdisposal of its waste products. Alcoa paid for investigation andremediation of the environmental harm. Alcoa’s claims for coverage in thiscase involved 35 different facilities in 11 different states. Raising avariety of defenses, the insurers denied coverage. Alcoa hereafter filedthis declaratory judgment action in the King County Superior Court inDecember 1992 against 167 insurers seeking coverage for the cost ofpollution damage, investigation, and remediation. The present case was assigned to the Honorable J. Kathleen Learned whowas faced with the daunting task of addressing discovery in this large,complex matter, handling numerous dispositive pretrial motions, andultimately conducting the trial of the issues. Judge Learned did anadmirable job of managing this extraordinarily complex case. The trial court determined the law of Pennsylvania applied, largelybecause Alcoa’s headquarters are located in Pittsburgh. [FOOTNOTE 2] Ultimately, thetrial court granted summary judgment motions determining Alcoa had aninsurable interest as to groundwater under its property, Alcoa did not havecoverage for certain DIC policy claims because the losses were notfortuitous, and Alcoa had no coverage under the CGL policies because thepollution exclusion barred coverage. In order to streamline pretrial and trial procedure, the trial courtdesignated 3 of the 35 sites at issue–Vancouver, Washington; Massena, NewYork; and Point Comfort, Texas–as test sites for the trial. Originaldamage estimates against the DIC insurers for these three sites aloneapproached $850 million. The trial court, in designating these three sitesfor trial,hoped that the parties could focus their discovery on the test sites,develop their respective legal theories, file appropriate dispositivemotions, and receive a definitive resolution regarding all of the disputedfactual and legal issues surrounding the test sites and that suchresolution would provide a basis for settlement, rather than trial, of theremaining first-party {DIC} sites. Clerk’s Papers at 050753. [FOOTNOTE 3] The trial involving the three sites was called Phase I; the futurePhase II trial is intended to resolve issues arising from the remaining 32sites. The Phase I trial consisted of two stages. Stage 1 was designed todetermine whether the policy jackets the DIC insurers added to theinsurance policy Alcoa drafted were part of the insurance contract. Thattrial lasted three weeks. The jury returned acomplete verdict concerning the applicability of policy jackets to theinsurance contract. The Stage 2 trial lasted 10 weeks and the jurydeliberated for 3 months before returning an incomplete verdict; the juryanswered only about one-half of the interrogatories submitted it. The trial court then certified the case for appeal pursuant to CR54(b), setting out in detail all of the jury’s findings of fact and thetrial court’s extensive summary judgment orders containing conclusions oflaw. The trial court certified the case for reasons of judicial economy,concluding, ‘there must be resolution of the legal standards that willapply’ before continuing with trial on the remaining 32 sites. Clerk’sPapers at 050755. RAP 2.2(d). Pursuant to RAP 4.4, the Court of Appeals,Division One, transferred the case to us, and we accepted direct review. ISSUES 1. Did Alcoa have an insurable interest in the groundwater? 2. Did Alcoa’s alleged misrepresentations or failure to discloserelevant information to its insurers render the policies void ab initio? 3. Did the trial court correctly grant summary judgment to theinsurers on coverage under the CGL policies’ pollution exclusionprovisions? 4. Did the DIC policies’ suit limitation provisions apply? 5. Did the trial court correctly apply the known risk or fortuitydefense to the DIC policies? 6. Under the terms of the DIC policies, should the damages beprorated among the years of damage if the environmental harm wasindivisible? ANALYSIS We begin with the contract formation issues; we then proceed to thecoverage questions; we conclude with the issues pertaining to damages. A. Background to the Insurance Coverages To understand the issues in this case fully, it is necessary todescribe how the parties agreed to the insurance coverage provided and thenature of the coverage obtained. As befits a large, sophisticated,multinational enterprise, Alcoa had its own internal insurance or riskmanagement department. Wishing to procure property insurance for its far-flung operations for the periods 1977-80, 1980-83, and 1983-84, Alcoaprepared ‘submissions’ that described the nature of Alcoa’s business, itsproperties, and the insurance coverages Alcoa sought. Attached to thesubmissions were ‘manuscript forms,’ actual proposed insurance policiesprepared by Alcoa and its insurance brokers. The manuscript forms includedboth CGL and DIC coverages. Large insurance brokerage firms shopped thesubmissions and manuscript forms to various insurers. The insurersresponded with price quotations for the layers of coverage they offered toAlcoa. Upon the placement of coverage, the insurers sent ‘policy jackets,’standard policy language, to the brokers for inclusion in the formalpolicies. Ultimately, the first layer of CGL coverage for the period 1977-84 wasplaced with Commercial Union. Lexington covered the first layer of DICcoverage for 1977-80, but various other insurers provided the initialcoverage for 1980-84. Numerous insurers provided excess layers ofcoverage. In the mid-1980s, pressed by state and federal regulators to clean upenvironmental hazards on its own property and elsewhere, Alcoa incurredsubstantial expenses to remediate these hazards. The essence of theproblem with Alcoa’s insurance coverage claims here rested with theretroactive liability imposed on potentially responsible parties by CERCLA(Comprehensive Environmental Response, Compensation, and Liability Act of1980), 42 U.S.C. sec. 9607(a)(2). See, e.g., CombinedProperties/Greenbriar Ltd. Partnership v. Morrow, 58 F. Supp. 2d 675 (E.D.Va. 1999) (retroactive application of CERCLA does not violate due process).At the time the coverages were placed in this case, it is unlikely any ofthe parties anticipated CERCLA’s imposition of retroactive liability onAlcoa. To compound the complexity of the issues here, a significantportion of the harm was to Alcoa’s own property. Central to understanding the insurers’ defenses is recognition of thetwo different types of insurance involved in this case: CGL insurance(third-party insurance), and a special type of property coverage known asDIC insurance (first-party insurance). Some of the insurers issued bothtypes of policies to Alcoa. ‘Third party insurance involves protection for the policyholder forliability it incurs to someone else, while first party insurance involvesprotection for losses to the policyholder’s own property.’ Olds-Olympic,Inc. v. Commercial Union Ins. Co., 129 Wn.2d 464, 479, 918 P.2d 923 (1996).Generally, a CGL policy insures against injury or damage to a third party;the insurer agrees to defend and indemnify the insured against liabilityfor risks identified in the policy. A DIC policy, by contrast, isgenerally a first-party insurance policy that indemnifies the insured fordamage to its own property. Harold Meeks, a former manager of Alcoa’scasualty and property insurance division, testified Alcoa purchased DICinsurance to cover damage to Alcoa’s property not covered by other propertydamage policies Alcoa had in place. In particular, the DIC policies were’all-risk’ policies [FOOTNOTE 4] that acted either as excess coverage to risks coveredby other Alcoa property damage policies, or primary coverage for propertydamage not covered by Alcoa property damage policies. Trial Ex. 431 at 6(‘perils insured’), 10 (‘other insurance’). [FOOTNOTE 5] According to the trial court,DIC policies were written for only a short period of time (the late 1970sto the early 1980s), so there is either no authority or only sparseauthority for their interpretation. Clerk’s Papers at 050753. [FOOTNOTE 6] The trial court granted summary judgment dismissing Alcoa’s claimsagainst the CGL insurers on the basis of the pollution exclusion clause for33 of the 35 sites at issue. The interpretation of the pollution exclusionclause is the single issue on appeal arising from the CGL policies. TheDIC policies presented many issues that were not, like the CGL policies,susceptible to summary judgment. Consequently, the case was tried in theKing County Superior Court on issues relating to the DIC coverage. B. Insurable Interest in Groundwater The first issue we address goes to the formation of the DIC insurancecontracts. The trial court held, without dispute on appeal, ‘The Courtdetermines that the 1977-80 and 1980-83 Difference in Conditions (‘DIC’)policies insure only property in which plaintiffs {Alcoa} had an insurableinterest as of the date of loss or damage.’ Clerk’s Papers at 041154(footnote omitted). The DIC policies contained the following definition of’property insured’: PROPERTY INSURED: The interest of the Insured in all Real and PersonalProperty of every description, including Business Interruption, owned bythe Insured {or} held by them in trust, or for which they may be legallyliable or may agree to insure. Trial Ex. 584, at 3. The DIC insurers moved for summary judgmenteliminating Alcoa’s claims for recovery of damage to the groundwater at theVancouver and Massena sites. [FOOTNOTE 7] The basis of the insurers’ motion is that inWashington and New York, the people of those states own the groundwater,and, therefore, Alcoa could not have an insurable interest in groundwaterit did not own. The trial court denied the motion, holding, ‘Pennsylvanialaw permits the purchase of insurance to protect any property whosecontinued existence produces an economic benefit or whose destruction wouldresult in a pecuniary loss, regardless of actual ownership.’ Clerk’sPapers at 041156. Under Pennsylvania law, ‘In order to have an insurable interest inproperty, a person must derive pecuniary advantage from the continuedexistence of the property or suffer pecuniary loss from its destruction.’Sotelo v. Washington Mut. Ins. Co., 734 A.2d 421, 423 (Pa. Super. 1999).’All definitionsof an insurable interest import an interest . . . which can be enforced atlaw or in equity.’ Kanefsky v. National Commercial Mut. Fire Ins. Co., 154Pa. Super. 171, 35 A.2d 766, 768 (1944) (quoting Prospect Dye Works v.Federal Ins. Co., 33 Pa. Super. 223, 227 (1907)). Thus, while it is trueAlcoa cannot not have ‘title’ to the groundwater in either Washington orNew York, it clearly has an interest in groundwater that can be enforced atlaw, i.e., its license to withdraw the groundwater for its own use, becausethat license conferred a pecuniary benefit on Alcoa. The DIC insurers’ reliance on Alcoa’s lack of title to the groundwateris hypertechnical. We note Alcoa had permits to withdraw the groundwaterfor plant operations in New York and Washington. Plainly, if someone elsecontaminated that groundwater making it unusable by Alcoa there would becoverage for the damage to Alcoa’s pecuniary interest in that groundwater.The trial court’s holding was correct because in Pennsylvania, thedefinition of insurable interest in property includes more than mere titleto property. Alcoa derived both pecuniary benefit and potential pecuniaryloss from its interest in the groundwater. It therefore had an insurableinterest in the groundwater. C. Misrepresentation The insurers argued to the jury Alcoa omitted material facts in itsapplication for DIC insurance, and, as a result, the policies should bevoid ab initio under Pennsylvania law. ‘Pennsylvania common law has longrecognized that contracts for insurance, procured by fraud, are void abinitio.’ Klopp v. Keystone Ins. Cos., 528 Pa. 1, 5, 595 A.2d 1 (1991).Washington law is the same. See, e.g., Queen City Farms, Inc. v. CentralNat’l Ins. Co., 126 Wn.2d 50, 882 P.2d 793, 891 P.2d 718 (1994). Theinsurers argued Alcoa was aware of significant environmental damage to theproperty it sought to insure and failed to inform them of that damage. The jury rejected the insurers’ argument after the trial courtsubmitted the following special verdict question to the jury: ‘Inobtaining the DIC policies, did Alcoa make any material misrepresentationsto the insurers?’ The jury answered ‘No’ as to all 52 policies the juryconsidered. The insurers then moved the trial court to enter a judgmentnotwithstanding the verdict of the jury (JNOV), pursuant to CR 50(b) andfor a new trial pursuant to CR 59, alleging four improper arguments byAlcoa’s counsel in closing argument. The trial court denied both motions.Finally, the insurers contend the trial court erred in ruling its denial ofthe misrepresentation defense is preclusive as to the remaining 32 sites. Turning first to the motion for JNOV, the standard of review we applyfor a trial court’s ruling on a CR 50(b) motion is the following: In reviewing a JNOV, this court applies the same standard as the trialcourt. . . . A JNOV is proper only when the court can find, ‘as a matterof law, that there is neither evidence nor reasonable inference therefromsufficient to sustain the verdict.’ Brashear v. Puget Sound Power & LightCo., Inc., 100 Wn.2d 204, 208-09, 667 P.2d 78 (1983) (quoting Hojem v.Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)). A motion for a JNOV admitsthe truth of the opponent’s evidence and all inferences that can bereasonably drawn therefrom, and requires the evidence be interpreted moststrongly against the moving party and in the light most favorable to theopponent. No element of discretion is involved. Davis v. Early Constr.Co., 63 Wn.2d 252, 254-55, 386 P.2d 958 (1963). Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995). ‘Under Pennsylvania law an insurance policy is void formisrepresentation when the insurer establishes three elements: (1) thatthe representation was false; (2) that the insured knew that therepresentation was false when made or made it in bad faith; and (3) thatthe representation was material to the risk being insured.’ New York LifeIns. Co. v. Johnson, 923 F.2d 279, 281 (3d Cir. 1991) (citing Pennsylvaniacases). Accord Matinchek v. John Alden Life Ins. Co., 93 F.3d 96, 102 (3dCir. 1996). This is the common law rule that has been in effect sinceEvans v. Penn Mut. Life Ins. Co., 322 Pa. 547, 186 A. 133 (1936). The ruleis simply a version of the well-known common law principle, ‘Fraud rendersa contract voidable by the innocent party.’ Bird v. Penn Cent. Co., 334 F.Supp. 255, 258 (E.D. Pa. 1971) (citing Pennsylvania insurance cases). False applications for casualty insurance have also been a matter ofstatutory law in Pennsylvania since 1921: The falsity of any statement in the application for any policy coveredby subdivision (b) {casualty insurance} of this article shall not bar theright to recovery thereunder, unless such false statement was made withactual intent to deceive, or unless it materially affected either theacceptance of the risk or the hazard assumed by the insurer. Pa. Stat. Ann. tit. 40, sec. 757 (West 1999) (originally enacted as 1921Pa. Laws 682, art. VI, sec. 622). The insurers make no reference to thisstatute. The Pennsylvania Superior Court (the intermediate level appellatecourt in Pennsylvania) has recently explained the rule for proving fraud inthe context of an insurance contract: It is well established that ‘where the execution of a contract of insurancehas been induced by fraudulent misrepresentations of the insured, theinsurer may secure its cancellation{.}’ Tudor Ins. Co. v. Township ofStowe, 697 A.2d 1010 (Pa.Super.1997) (quoting New York Life Insurance Co.v. Brandwene, 316 Pa. 218, 221, 172 A. 669, 669 (1934)). The burden ofproving fraud is on the insurer who must prove, by clear and convincingevidence, [FOOTNOTE 8] that on the application, the insured knowingly made falsestatements or knowingly failed to disclose information which was materialto the risk against which the insured sought to be protected. Id. at 1016.In order to show a policy is void ab initio on the basis of fraud, theinsurer must prove that the intent to deceive was deliberate. Grimes v.Prudential Ins. Co. of America, 401 Pa.Super. 245, 585 A.2d 29, 33 (1991). Mere mistakes, inadvertently made, even though of material matters, or thefailure to furnish all details asked for, where it appears that there is nointention of concealing the truth, does not work a forfeiture, and aforfeiture does not follow where there has been no deliberate intent todeceive, and the known falsity of the answer is not affirmatively shown. [FOOTNOTE 9] Id. (quoting Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 553, 186A. 133, 143 (1936)). The clear and convincing standard of proof issufficiently met if the evidence presented was ‘so clear, direct, weighty,and convincing as to enable the jury to come to a clear conviction, withouthesitancy, of the truth of the precise facts in issue.’ Lessner v.Rubinson, 527 Pa. 393, 400, 592 A.2d 678, 681 (1991). Nonetheless, ‘fraud. . . is never proclaimed from the housetops nor is it done otherwise thansurreptitiously with every effort to conceal the truth of what is beingdone. So fraud can rarely if ever be shown by direct proof. It mustnecessarily be largely inferred from the surrounding circumstances.’Shechter v. Shechter, 366 Pa. 30, 33, 76 A.2d 753, 755 (1950). Rohm & Haas Co. v. Continental Cas. Co., 732 A.2d 1236, 1251-52 (Pa. Super.1999). The insurers argue Alcoa’s actions satisfied all three prongs. First,they contend Alcoa did not reveal in its applications for DIC coverage itsland had already been contaminated by industrial wastes. They treat thisomission as a false representation. That there was damage to some ofAlcoa’s property prior to the time Alcoa requested insurance coverage fromthe insurers had been established by pretrial orders. Jury Instruction No.20 detailed as much: As a result of rulings made prior to trial, I instruct you that, as amatter of law, you must take as established the following: (a) Land and groundwater are real property covered under the DICpolicies. (b) Prior to July 1, 1977, Alcoa was aware that mercury, cyanide, andPCBs, in certain forms, under certain conditions, at some concentration,and through certain biological pathways, could be considered hazardous ortoxic. (c) Prior to July 1, 1977, Alcoa knew that it sustained mercury-related property damage at the Point Comfort facility in the followingareas: the portion of Lavaca Bay leased by Alcoa, in the four BauxiteResidue Lakes, Dredge Island, and the Dredge Spoil Lake. (d) No later than July 1, 1980, Alcoa knew that it sustained PCB-related property damage at the Massena facility in the following wastemanagement units: The Lubricating Waste Oil Lagoon and the Soluble OilLagoon. (e) As of December 1978, Alcoa knew that cyanide had damaged thegroundwater under the SPL pile at the Vancouver facility. (f) Prior to July 1, 1977, Alcoa knew that fluoride had damaged theSettling Lagoons at the Vancouver facility. As of the start of theVancouver Sludge Pond’s operation in 1978, Alcoa was also aware of thefluoride-related damage to the pond. Clerk’s Papers at 049132. Question No. 4 on the Special Verdict Formasked, ‘When did Alcoa know of the property damage in each area or becomesubstantially certain that such damage would occur {?}’ In its answer, thejury indicated Alcoa knew of many areas where damage had occurred beforeAlcoa applied for insurance. Clerk’s Papers at 049392-95. [FOOTNOTE 10] Thus, theinsurers appear to meet the first test for misrepresentation. Second, the insurers contend Alcoa did not inform them of this damagewhen it applied for insurance. Alcoa disputes this contention. Alcoaasserts it did not knowingly or in bad faith fail to inform the insurers ofthe damage. The crux of Alcoa’s argument is it was not aware the insurersneeded information from Alcoa about environmental damage to its ownproperty. This contention blends into the third prong, materiality, anddoes not refute the insurers’ argument Alcoa did not inform them ofenvironmental damage to its own property. The insurers appear to meet thesecond test for misrepresentation. Third, the insurers contend Alcoa’s omission of information aboutdamage to its property from industrial wastes was material. UnderPennsylvania law, ‘Information is said to be material if knowledge orignorance of it would naturally influence the judgment of the insurer inissuing the policy, in estimating the degree and character of the risk, orin fixing the premium rate.’ A.G. Allebach, Inc. v. Hurley, 373 Pa. Super.41, 540 A.2d 289, 295 (1988). The insurers assert, ‘{A}ny informationpertaining to this property and insured-risk would, a fortiori, bematerial.’ Br. of Cross-Appellants at 25. But the insurers decline toconfront the crucial question regarding misrepresentation: was informationof damage material? The trial court held it was not. In its order denying the motion forJNOV, the trial court said: As of 1977, when the Lexington policies were negotiated, there were nostatutory requirements that the owner of an industrial facility clean upits own property, there was no indication that Alcoa had ever or would everincur costs to remedy pollution-related damage on its own property, therewas no indication that Alcoa was contemplating making claims for suchdamage, and there is no evidence that Alcoa had made pollution-relatedclaims in the past. The jury could conclude that, as of 1977, the factthat the operation of Alcoa’s waste management units had damaged its ownproperty, where no claim had ever been made or was ever likely to be maderegarding such damage, would not have been material to either party. Thejury’s findings of no material misrepresentations were, therefore,appropriate as to the Lexington policies. Clerk’s Papers at 050067. The trial testimony of insurance company representatives is importantregarding materiality. One representative testified the damage Alcoa didnot report was not material because he did not believe the DIC policiescovered environmental damage: Q. Well, today, {are} environmental assessment{s} . . . done inconnection with underwriting property policies? A. DICwise, I don’t believe so. Q. They are not done? A. They are not done. Q. I take it, then, that they weren’t done in the 1977 to the 1984 timeperiod either? A. I don’t think so. Q. Mr. Daly, if environmental assessments are not done today, inconnection with the issuance of the DIC policies, then that information isnot material in determining whether or not to underwrite the DIC policies.Isn’t that correct? A. The information is not material to not write them? Q. You testified that environmental assessments are not being done today? A. I said I think so. Q. You said that you think that they weren’t being done in the 1977 tothe 1984 time period either in connection with the issuing of the DICpolicies; right? A. Right. Q. So that the information that one might get from the environmentalassessments might not be material at the time of writing DIC policies? A. Maybe so. I don’t know for sure. Q. If environmental assessments are not being done today in connectionwith the DIC policies, do you think that the information that anenvironmental assessment might generate would be material to issuing thosepolicies today? A. Yes. Q. Why aren’t they, why aren’t environmental {assessments} done? A. Because to this day I don’t think that contamination and pollution arecovered as a specific peril. Report of Proceedings at 10972-73 (testimony of John Daly, a propertyunderwriter with 22 years of experience. Report of Proceedings at 2499).Another insurance company executive was even more definite about theimmateriality of environmental damage to Alcoa’s property to the decisionto insure: Q. Now, similarly, at the time that you were underwriting these policies,in 1983, these DIC policies, you didn’t think that the policies coveredcontamination of land by waste generated by Alcoa; isn’t that right? A. I still don’t. Q. You still don’t. All right. Now, Mr. York, at the time that youunderwrote these policies, you really didn’t know much about Alcoa’s wastegeneration activities; isn’t that right? A. No, I did not. Q. You don’t recall really asking about any information about Alcoa’swaste handling or generation activities; isn’t that right? A. I could see no relation to that to the subject of our propertypolicies. Q. You weren’t really that concerned about Alcoa’s waste generation, orabout hazardous chemicals contaminating land, because you didn’t think thatcontamination of the land was covered under those DIC policies through theunderwriting. Isn’t that right? A. Correct. Q. So that type of information was not really a primary consideration foryou, when you were underwriting the policies. You were focused more on theflood exposures and the earthquake exposures and information relating tothose types of exposures; isn’t that right? A. Yes. Q. You don’t recall having any particular concern at that time about anycontamination or pollution exposures of Alcoa; isn’t that right? A. No. We would have, I testified earlier that how we would haveapproached underwriting to cover land and we just didn’t really have a goodfeeling about that. We wouldn’t have done it. Q. I am asking you not to speculate what you would have done or thought,if you had known land was covered under these policies. I am talking aboutwhat you did think and what you were focused on at the time that youunderwrote these policies at the time that you didn’t think that land wascovered under them; that is, that you weren’t that focused or concernedabout exposures relating to contamination for pollution. Isn’t that right? . . . A. I don’t think that it is a very direct question, either. I am afraidyou are kind of putting words into my mouth. You are not asking me what Ithought. You are saying, ‘yada, yada, yada, is that a fair statement?’ Q. Well, let me try it again, Mr. York. I won’t use ‘yada, yada, yada’in this sentence. At the time that you underwrote these Commonwealthpolicies, you don’t recall having any particular concern about Alcoa’sexposures relating to contamination or pollution; isn’t that correct? A. No, I don’t recall any such concerns. Report of Proceedings at 11095-97 (testimony of Hugh York, manager of theUnited States Property Underwriting Division of Commonwealth Insurance.Report of Proceedings at 11049-50). Thus, the jury heard testimony thatallowed it to conclude the information Alcoa omitted about damage to itsproperty was not material to the decision to issue insurance. Because we are addressing a defense, a species of fraud in theinducement, that voids the insurance contract in its entirety from theoutset, we are careful in applying this most extreme of remedies. UnderPennsylvania law, the test is, as it should be, a very rigorous one with ahigh burden on the insurers. Pennsylvania law abhors forfeitures. FogelRefrigerator Co. v. Oteri, 391 Pa. 188, 137 A.2d 225, 231 (1958). AlthoughAlcoa did not inform the insurers about pollution damage to Alcoa’sproperty at the time Alcoa applied for insurance, the trial court wascorrect in holding pollution damage was not a material factor in theinsurers’ decision to insure because nobody considered pollution damage tobe covered by the DIC policies in the first instance. Failing of thisthird prong of the test for misrepresentation, the insurers have not mettheir burden to sustain a motion for JNOV. We hold, therefore, there was sufficient evidence before the jury tosustain its verdict, and conclude the trial court did not err in denyingthe insurers’ motion for JNOV. We next turn to the insurers’ contention they are entitled to a newtrial because of misconduct by Alcoa’s counsel in closing statements to thejury. After the jury verdict, the insurers moved for a new trial,referencing four allegedly improper and prejudicial comments by Alcoa’scounsel during closing argument. The trial court denied the motion for anew trial in a written order. Abuse of discretion is the standard of review for an order denying amotion for a new trial: ‘An order denying a new trial will not be reversedexcept for abuse of discretion. The criterion for testing abuse ofdiscretion is: ‘{H}as such a feeling of prejudice been engendered orlocated in the minds of the jury as to prevent a litigant from having afair trial?’ ‘ Moore v. Smith, 89 Wn.2d 932, 942, 578 P.2d 26 (1978)(quoting Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464(1932)). See also Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597(1997) (‘A much stronger showing of abuse of discretion will be required toset aside an order granting a new trial than an order denying one becausethe denial of a new trial ‘concludes {the parties’} rights.’ ‘ (alterationin original)) (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 437, 397P.2d 857 (1964)); Seattle Operating Co. v. Cavanaugh, 14 Wash. 701, 701, 44P. 266 (1896). This rule of abuse of discretion specific to motions for anew trial stands in juxtaposition to the general test for abuse ofdiscretion set forth in State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971): ‘that is, discretion manifestly unreasonable, orexercised on untenable grounds, or for untenable reasons.’ The grounds for granting a new trial are set forth at CR 59(a). Theinsurers rely on only one of the nine listed grounds, CR 59(a)(2):’Misconduct of prevailing party or jury.’ Br. of Cross-Appellants as toMisrepresentation at 31. Such misconduct must ‘materially affect{} thesubstantial rights’ of the moving party. CR 59(a). Washington law on the standard for counsel misconduct as grounds for anew trial in a civil case is scant. In Godley v. Gowen, 89 Wash. 124, 129-30, 154 P. 141 (1916), a case predating adoption of our Civil Rules forSuperior Court, we said: It is finally claimed that, in the opening statement of counsel forthe plaintiff, a statement was made to the effect that, shortly after theaccident, the defendant discharged the plaintiff from his employ andrefused to pay his doctor’s bill, and that this was misconduct which wouldwarrant the granting of a new trial. When counsel made this statement itwas objected to, and the court told the jury, in substance, that theyshould not consider statements of counsel unless the same were supported bythe evidence. We think this was not such misconduct of counsel as wouldwarrant the granting of a new trial. See also Freeman v. Intalco Aluminum Corp., 15 Wn. App. 677, 552 P.2d 214(1976) (curative instruction sufficient to address alleged misconduct ofcounsel). We have spoken at some length, however, on the criteria for mistrialsin criminal cases. In State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747(1994), cert. denied, 514 U.S. 1129, 115 S. Ct. 2004, 131 L. Ed. 2d 1005(1995), we stated: Trial courts are accorded discretion in denying a motion for mistrial;such denials will be overturned only when there is a ‘substantiallikelihood’ the prejudice affected the jury’s verdict. State v. Crane, 116Wn.2d 315, 332-33, 804 P.2d 10, cert. denied, 111 S. Ct. 2867 (1991).Trial courts ‘should grant a mistrial only when the defendant has been soprejudiced that nothing short of a new trial can insure that the defendantwill be tried fairly’. {State v. }Mak, 105 Wn.2d {692} at 701, {718 P.2d407 (1986)} quoted in State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014(1989). See also State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979) (‘As ageneral rule, the trial courts have wide discretionary powers in conductinga trial and dealing with irregularities which arise. . . . A mistrialshould be granted only when ‘nothing the trial court could have said ordone would have remedied the harm done to the defendant.’ ‘ (citationsomitted)). Thus, the trial court’s issuance of a curative instruction mayobviate the need for a new trial, even if there is misconduct. In its written opinion on the motion for a new trial, the trial courtemployed the following rules for its decision: Pursuant to CR 59, a new trial should be granted when the prevailingparty has engaged in misconduct that ‘materially affect{s} the substantialrights’ of the losing party. Under Washington law, there are two prongs tothe analysis: were counsel’s remarks improper and, if so, did such remarkshave a prejudicial effect (i.e., was there substantial likelihood that theremarks affected the jury’s verdict)? See State v. Mak, 105 Wn.2d 692(1986); State v. Russell, 125 Wn.2d 24, 85 (1994). Where both questionsare answered in the positive, a new trial is necessary. Order Denying Certain Defs.’ Mot. for a New Trial at 1 (Clerk’s Papers at050703). Ultimately, we generally agree with the trial court’s two-part test,but we note the circumstances of a civil case, where life and liberty arenot at issue, militate in favor of a standard that more generally upholdstrial court decisions. One federal rule commentator noted the propercriteria for consideration: A new trial may properly be granted based on the prejudicialmisconduct of counsel. As a general rule, the movant must establish thatthe conduct complained of constitutes misconduct (and not mere aggressiveadvocacy) and that the misconduct is prejudicial in the context of theentire record. . . . The movant must ordinarily have properly objected tothe misconduct at trial, . . . and the misconduct must not have been curedby court instructions. 12 James Wm. Moore, Federal Practice sec. 59.13{2}{c}{I}{A}, at 59-48 to58-49 (3d ed. 1999). The insurers want a new trial because of what they contend wereimproper statements by Alcoa’s counsel during closing argument. They argueboth in the trial court and in their briefs here that Alcoa made 11improper statements or took improper positions to which the trial courtsustained the insurers’ objections. Unfortunately, they discuss only threealleged improper statements; they do not point to the location in therecord where the others might be found. In any event, while the trialcourt considered the statements improper, it held they were notprejudicial. The first allegedly improper closing argument was Alcoa’s counseltelling the jury the insurers’ defense of misrepresentation is nothing buta ruse to void the policies. The insurers’ attorney objected on the groundAlcoa’s counsel was improperly advising the jury of the legal effect ofmisrepresentation. The trial court upheld the objection. The trial court conceded the argument was improper; it had beenforbidden by an order granting a motion in limine. But the trial courtwent on to note the insurers’ central contention throughout the trial wasno coverage for a variety of reasons, among which misrepresentation wasonly one. The trial court also noted the jury was likely to know anywaythat misrepresentation by Alcoa could lead to voiding of the policiesbecause such language was contained in the policies the jurors had beforethem during their deliberations. The trial court concluded the jury wasable to decide the case fairly, without passion or prejudice, despite theimproper statement by Alcoa’s counsel during closing argument. The second claimed improper closing argument was a comment by Alcoa’scounsel questioning the validity of one of the court’s jury instructions.The insurers objected to the statement and the trial court sustained theobjection, informing the jury it was bound by the court’s orders. Thetrial court, in denying the motion for a new trial, held the insurers werenot prejudiced because there had been over three months of trial testimonyon the very issue referenced by Alcoa’s counsel. Thus, the improper remark’was not surprising.’ Clerk’s Papers at 050707. We agree. Next, the insurers argue they are entitled to a new trial because ofthe following improper remarks by Alcoa’s counsel during closing argument:This case is about the truth. It’s not about clever lawyering. Mr. Buddand I tried not to object very frequently. Why? Because we wanted you tohear everything. Mr. Daar: I’m sorry, that’s not proper argument. The Court: Yes, sustained. Disregard that, please. Br. of Cross-Appellants as to Misrepresentation at 39; Report ofProceedings at 12165. The trial court instructed the jury in JuryInstruction No. 1, ‘The lawyers have the right and the duty to make anyobjections that they deem appropriate.’ Clerk’s Papers at 050708. Theimproper statement regarding the number of objections is a flimsy basis onwhich to grant another trial. In summary, the trial court observed: There is no indication that the jury was swayed by passion orprejudice for or against any particular party or position. This jury wasextremely thoughtful, competent, and diligent in their efforts to reviewthe evidentiary record and answer the Special Verdict Form. Suchdedication was noted repeatedly by both parties and the Court during trialand deliberations. The number and content of the jury inquiries propoundedduring deliberations indicates that they painstakingly considered theevidence before them in arriving at their decisions. Clerk’s Papers at 050706. In view of the trial court’s opinion of thediligence of the jury, and the somewhat insubstantial issues the insurersraise to justify a new trial, we agree. The trial court did not abuse itsdiscretion in denying the insurers a new trial on misrepresentation. The final issue the insurers raise on misrepresentation has to do withthe scope of the trial court’s decision on that issue. At the end of thePhase I trial, the jury was asked on the Special Verdict Form, ‘Inobtaining any of the DIC policies, did Alcoa make any materialmisrepresentations to the insurers?’ For every policy issued covering thethree test sites from 1977 to 1984, the jury answered in the negative. Thetrial court subsequently held these findings were conclusive as to theremaining 32 sites: The finding of this jury that there were no material misrepresentations onAlcoa’s part during the negotiations of the DIC policies is conclusive, andlitigation on this issue is at an end. Should discovery identify specificinstances where Alcoa knew of and actually incurred monetary losses inresponse to contamination-related damages on its own property prior to theinception date of the policies at issue, defendants’ remedy may lie underCR 60(b)(3).{ [FOOTNOTE 11] Clerk’s Papers at 050069. The insurers assert the ruling unfairly precludes any defenses basedon misrepresentation they might have for the remaining 32 sites, defenses they may not have detected or developed so far because they have not hadconduct discovery as to those 32 sites. But they ignore the reasonanimating the trial court’s finding of no misrepresentation: the pollutiondamage to Alcoa’s own property was not material to the insurers’ insuringdecision because such damage was not thought to be covered under the DICpolicies. Additional fact-finding atthe remaining sites cannot change the materiality consideration. As thetrial court said, ‘{F}indings of non-fortuitous damage at other sites wouldnot support a finding of material misrepresentation: such information waseither immaterial at the time of contracting or was not misrepresented.’ Clerk’s Papers at 050069. We agree. The trial court did not abuse itsdiscretion in ruling the jury’s finding of no misrepresentation applies toall the sites. D. Pollution Exclusion Clause The CGL policies provide insurance coverage for damage third-partiesincur resulting from an ‘occurrence,’ which the Commercial Union policy,for example, defines as follows: ‘ ‘occurrence’ means an injuriousexposure to conditions which results, during the policy period, in personalinjury or property damage or advertising offense neither expected norintended from the standpoint of the Insured{.}’ Clerk’s Papers at 001125.The policies do not provide coverage, however, for costs Alcoa incurs toremedy damages stemming from environmental pollution or contaminationbecause of pollution exclusions in the CGL policies. The pollutionexclusion clause in the Commercial Union policy, for example, states:It is agreed that the insurance does not apply to bodily injury or propertydamaged arising out of the discharge, dispersal, release or escape ofsmoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids orgases, waste materials or other irritants, contaminants or pollutants intoor upon land, the atmosphere or any watercourse or body of water; but thisexclusion does not apply if such discharge, dispersal, release or escape issudden and accidental. Clerk’s Papers at 001154. In other words, the CGL policy will not, as ageneral matter, cover damage to others by pollution the insured generates. But the last phrase of the clause qualifies the pollution exclusion:the policy will cover pollution damage to others if the ‘discharge, releaseor escape is sudden and accidental.’ Because of this qualification of thepollution exclusion, this policy provision is a qualified pollutionexclusion clause. The case at bar concerns the meaning of the phrase,’sudden and accidental.’ Alcoa contends it is entitled to coverage because’sudden and accidental’ encompasses as much as 40 years of Alcoa’s gradual,pollution-generating activity. The trial court agreed with the CGLinsurers and dismissed Alcoa’s claims, based on the pollution clause, in aseries of orders. [FOOTNOTE 12] The trial court relied on extant Pennsylvania lawdefining ‘sudden and accidental’: This court will not revisit established Pennsylvania law. That lawholds that the pollution exclusion clause is unambiguous. In Pennsylvania,the term ‘sudden and accidental’ is not another way of saying ‘unexpectedand unintended’ but includes a temporal element requiring an abrupt andtime-limited discharge. Clerk’s Papers at 029348. In its earlier order dismissing Alcoa’s claimsagainst Commercial Union (Clerk’s Papers at 029856), the trial court citedLower Paxton Township v. U.S. Fidelity & Guar. Co., 383 Pa. Super. 558, 557A.2d 393, 402 (1998), where the Pennsylvania Superior Court said: ‘To read’sudden and accidental’ to mean only unexpected and unintended is torewrite the policy by excluding one important pollution coveragerequirement–abruptness of the pollution discharge.’ We construed a nearly identical qualified pollution exclusion clausein Queen City Farms, 126 Wn.2d at 74, but we found coverage, holding thephrase ‘ ‘sudden and accidental’ means ‘unexpected and unintended’.’ Id.at 90. In the case at bar, however, Queen City Farms does not apply;Pennsylvania law controls. In its order granting Commercial Union’s motionto dismiss, the trial court specifically noted the conflict betweenPennsylvania and Washington law in the interpretation of the qualifiedpollution exclusion clause, and concluded Pennsylvania law applied to theinterpretation of the clause. No party disputes the trial court’sapplication of Pennsylvania law to the pollution exclusion issue. Alcoa’s appeal from the lower court’s pollution exclusion clauseholding is limited to a single issue: whether the CGL insurers areestopped to deny coverage because of misrepresentations they made to thePennsylvania Insurance Department when they applied in 1970 for permissionto use the pollution exclusion clause. The alleged misrepresentationoccurred in an explanatory memorandum the insurance industry submitted tothe Pennsylvania Insurance Department along with its application for thepollution exclusion clause. The memorandum reads, in pertinent part: Coverage for pollution or contamination is not provided in most cases underpresent policies because the damages can be said to be expected or intendedand thus are excluded by the definition of occurrence. The aboveexplanation clarifies this situation so as to avoid any question of intent.Coverage is continued for pollution or contamination caused injuries whenthe pollution or contamination results from an accident. Sunbeam Corp. v. Liberty Mut. Ins. Co., 740 A.2d 1179, 1189 n.7 (Pa. Super.1999). This argument is what courts have referred to as regulatoryestoppel, a species of fraud in the inducement. Alcoa claims that but forthe fraudulent misrepresentation by the insurance industry as to themeaning and effect of the pollution exclusion clause, thereby inducing thePennsylvania Insurance Department to approve use of the clause in CGLpolicies, Alcoa would not have been left without coverage. It is not necessary to discuss this claim in detail because in aDecember 1999 case, the Pennsylvania Superior Court, sitting en banc,settled and disposed of the regulatory estoppel issue. In Sunbeam Corp.,the court held the insured failed to demonstrate the Pennsylvania InsuranceDepartment had relied on the alleged misrepresentation in making thedecision to allow the pollution exclusion clause. Actual reliance on thealleged false statement is one of the necessary elements of fraud. [FOOTNOTE 13] Indeed, the Pennsylvania court found it was unlikely a regulatory body likethe Pennsylvania Insurance Department would simply abandon its statutorycharge to determine the meaning of a proposed clause in an insurancecontract and rely solely on the insurance industry’s representations as tothe meaning of the clause. Richard W. Simpson, who was Assistant Directorof the Bureau of Regulation of Rates of the Pennsylvania InsuranceDepartment (Clerk’s Papers at 001659), averred in a declaration, ‘Asstated above, I was not mislead {sic} or deceived by the IRB’s filings of1966 or 1970 nor to the best of my knowledge was any Department staffmember misled or deceived.’ Clerk’s Papers at 001661. As the Sunbeamcourt said, citing the language of the Pennsylvania trial court: {Sunbeam’s} regulatory estoppel argument requires that I find that afterreading the pollution exclusion, the members of the regulatory bodies andtheir staffs looked to the insurance industry’s explanation of the proposedpollution exclusion to determine the scope of the exclusion. However, itis far more reasonable to assume that a regulatory body would attach itsown meaning to the language of a proposed exclusion and that it would, infact, be suspicious of an industry explanation which appeared to besomewhat inconsistent with the proposed language. Sunbeam, 740 A.2d at 1190 (alteration in original). In addition to disposing of the regulatory estoppel argument againstAlcoa, Sunbeam reaffirmed Lower Paxton’s definition of ‘sudden andaccidental’: ‘the word ‘sudden,’ construed in its plain, natural, andordinary sense, includes a temporal element and means ‘abrupt’ and ‘lastingonly a short time.’ ‘ Sunbeam, 740 A.2d at 1188. These are the precisewords the trial court here relied upon in dismissing Alcoa’s claims underthe pollution exclusion clause. As a result of Sunbeam, Alcoa is leftwithout a triable issue of fact unless it can show that for at least someof the polluted sites the pollution that occurred was ‘sudden andaccidental,’ as Pennsylvania defines the phrase. In its written decision on the CGL insurers’ motion for summaryjudgment based on the pollution exclusion clause, the trial court held, ‘Itis the Plaintiffs burden to establish coverage and that there are facts tosupport an exception to the pollution exclusion clause.’ Clerk’s Papers at029354. Alcoa does not disagree it had such a burden. The trial courtdiscussed and rejected several of Alcoa’s contentions that discharges ofpollutants were, in fact, abrupt. On appeal, Alcoa addresses the factual issues in a single paragraph,asserting, ‘If the trial court had applied the proper legal standard,Alcoa’s claims would be precluded by the qualified pollution exclusion onlyif the release of pollutants were non-accidental from Alcoa’s standpoint.’Br. of Appellants at 103. Because Sunbeam establishes the trial court didapply the proper legal standard, and Alcoa has not argued triable issues offact arise from that standard, the trial court correctly granted thesummary judgment motions dismissing Alcoa’s claims against the CGL insurersunder Pennsylvania law. E. Suit Limitation Clauses The next coverage issue we address involves the suit limitationsclauses found in the DIC policies. Such clauses limit the time for Alcoato file suit for the coverage under the policies. An example of such aclause appears in the Bellefonte policy: SUIT. No suit, action or proceeding for the recovery of any claimunder this policy shall be sustainable in any court of law or equity unlessthe same be commenced within twelve (12) months next after discovery by theInsured of the occurrence which gives rise to the claim, provided, however,that if by the laws of the state within which this policy is issued suchlimitation is invalid, then any such claims shall be void unless suchaction, suit or proceeding be commenced within the shortest limit of timepermitted by the laws of such state. Trial Ex. 924, at 2. ‘This is not a statute of limitation imposed by law;it is a contractual undertaking between the parties and the limitation onthe time for bringing suit is imposed by the parties to the contract.’Lardas v. Underwriters Ins. Co., 426 Pa. 47, 231 A.2d 740, 741-42 (1967).Suit limitation clauses are ubiquitous: Almost all property policies contain a ‘suit limitation clause,’ i.e.,a clause designed to shorten the period of time within which an action onor under the policy may be brought against the insurer by the policyholder.Typically, these time limits are from twelve months to two years. Moststates, by statute, implicitly recognize the validity of suit limitationclauses by prohibiting the use of such clauses in actions brought ‘less’than twelve months after the loss. Dale L. Kingman, First Party Property Policies and Pollution Coverage, 28Gonz. L. Rev. 449, 493 (1992/93). ‘Suit-limitation clauses may represent avalid and equitable defense when pollution losses are reported on first-party policies that have long since expired.’ Jerry Provencher, First-Party Claims with an Environmental Twist, 23-SUM Brief (ABA) 8, 35 (1994).’By statute, Pennsylvania law provides that contractual limitations of suitprovisions, which are shorter than the applicable statute of limitations,are valid provided they are not manifestly unreasonable.’ Caln VillageAssocs. v. Home Indem. Co., 75 F. Supp. 2d 404, 409 (E.D. Pa. 1999) (citing42 Pa. Cons. Stat. Ann. sec. 5501(a)). Washington insurance law similarlypermits suit limitation clauses, provided ‘such limitation shall not be toa period of less than one year from the date of the loss.’ RCW48.18.200(1)(c). In effect, these statutes authorize property insurers tocontract for repose provisions of fairly short duration. They cut off thelong tail on claims so often found in third party coverage. The suit limitation issue in the present case arises because the DICinsurers alleged as an affirmative defense Alcoa had not complied with thesuit limitation provision. Alcoa asserts the document containing the suitlimitation was not a part of the insurance contract Alcoa made with the DICinsurers, and it should not be bound by the suit limitation provision. Thejury found otherwise, and as a result, the trial court dismissed most ofAlcoa’s claims against the 1977-83 DIC insurers on the basis that Alcoa’saction was untimely. The DIC insurers cross-appealed, contending the trialcourt erroneously selected the time at which the suit limitations periodsbegan to run. The initial question we must address is whether Alcoa is bound by thesuit limitations clauses, most of which appeared in policy jackets given toAlcoa’s brokers after coverage was placed. In conjunction with its owninsurance brokers, Alcoa prepared a long, detailed document specifying theterms and conditions of the coverage it sought. Alcoa’s brokers negotiatedwith various DIC insurers over a period of months until agreement wasreached as to the terms and conditions of coverage. An example of thisdocument appears at Trial Ex. 584. The parties refer to this document asthe ‘manuscript form.’ The insurers all accepted the proposed insurance contract and issuedbinders confirming the existence of insurance. Later, they sent to Alcoa’sbrokers, but not to Alcoa, what are confusingly referred to in this case aspolicy jackets. These are not jackets in the sense of file jackets; theyare instead the basic insurance policy containing much of what isordinarily referred to as boilerplate or small print. The insurers assertthese are part of the basic insurance contract between them and Alcoa.Alcoa asserts they are not part of the contract because Alcoa nevernegotiated the terms of the policy jackets and because they never receivedthem (only the brokers received them). Whether the policy jackets areconsidered part of the agreement between Alcoa and each DIC insurer isimportant because the suit limitation clause is found in the policyjackets. Stage 1 of the Phase I trial was devoted to the question of whetherthe policy jackets were part of the DIC policies. Jury Instruction No. 1summarized the issues for the jury: Plaintiffs, Aluminum Company of America and Northwest Alloys, Inc.(hereinafter ‘Alcoa’ or ‘plaintiffs’) brought this lawsuit seeking adeclaration that numerous first-party insurance policies issued to Alcoaprovide coverage for environmental clean-up costs at plaintiffs’ facilitiesin Vancouver, Washington, Massena, New York, and Point Comfort, Texas. The insurance policies at issue were known as Difference in Conditionspolicies and were in effect for various periods between July 1, 1977 andJuly 1, 1984. The first stage of this trial involves resolution of issues withrespect to what documents make up the 1977-1980 policy and the 1980-1983policies{.} A. The first issue will involve the Lexington Insurance Companypolicy. The Lexington policy was procured by Alcoa through the brokerFairfield & Ellis, Inc. Lexington delivered its original policy toFairfield & Ellis, which then delivered the policy to Alcoa. Lexingtoncontends that the policy consisted of a typed manuscript form, a policyjacket containing terms and conditions numbers 1-25, and variousendorsements, and that Alcoa received all of these documents throughFairfield & Ellis. Lexington also contends that Alcoa received a complete,signed, daily report and/or agent’s record (referred to as a ‘daily’) whichcontained the same twenty-five terms and conditions found in the originalpolicy jacket, although in a different format. Alcoa contends that the manuscript form, cover page, declarationspage, and various endorsements constituted the complete Lexington policyand that the page of the policy jacket which contained conditions 6-25 wasnever received by Alcoa and is, therefore, not part of the policy. Clerk’s Papers at 047309. On a Special Verdict Form, the jury answered’yes’ to the following key interrogatory: ‘Did Fairfield & Ellis act asAlcoa’s agent for purposes of receipt of the original Lexington policy?’Clerk’s Papers at 050791. The jury also answered ‘no’ to another keyinterrogatory: ‘Was it reasonable for Alcoa (and its agent, if applicable)to believe that conditions 6-25 of the Lexington policy jacket were not tobe considered part of the policy?’ Thus, as a factual matter, the juryconcluded the broker was Alcoa’s agent for receipt of the policy jacketsand Alcoa was unreasonable in not believing the policy jacket (containingthe suit limitation clause) was part of its insurance contract withLexington. The jury also answered the same interrogatories with respect tothe policies issued in subsequent years, finding in some cases the brokerwas not Alcoa’s agent for receipt of the policy jackets, but that in allcases for which the broker was the agent, it was unreasonable for thebroker not to believe the policy jackets were part of the insurancecontract. Alcoa now argues as a matter of law the policy jackets were unilateralattempts to modify the insurance contract, and the ‘manuscript form’encompassed its entire contract with the DIC insurers, stating, ‘Neitherthe quotations nor the proposed policy wording {i.e., the manuscript form}mentioned the policy jackets or their conditions.’ Br. of Appellants at25. Alcoa is incorrect. Alcoa’s manuscript form specifically referred toanother document: ‘PARAMOUNT CLAUSE: The conditions contained in thisform shall supersede those of the basic policy to which this form isattached wherever the same may conflict.’ Tr. Ex. 584, at 9. Thus, in thedocument Alcoa itself prepared and submitted to the DIC insurers, Alcoamade reference to the ‘basic policy,’ i.e., policy jacket, that was to beattached to the manuscript form. From the outset, Alcoa understood therewas to be an additional writing, the policy jacket, that was to be a partof the insurance contract. The question of whether it was unreasonable forAlcoa not to believe the policy jackets were included in the policies wasproperly before the jurors, who found against Alcoa. Alcoa also argues it never actually received the policy jacketsbecause, it asserts, under Pennsylvania law, insurance brokers are notagents for the receipt of policies. Alcoa cites the following provisionfrom Pennsylvania’s administrative code: when an insurance company {anentity} ‘gives a policy, either new or renewal, to a broker for delivery tothe insured, the broker shall be considered an agent of the entity fordelivery of that one policy.’ 31 Pa. Admin. Code sec. 37.45(c) (1997).The essence of Alcoa’s contention appears to be that this regulatoryprovision forbids brokers from being the agent of an insured for purposesof policy delivery so that Alcoa could not be held to have constructivelyreceived the policy jackets. Alcoa reads too much into this regulation. As Alcoa would have it, the Pennsylvania administrative code wouldmake illegal any express contract between an insured and its broker thatwould have the broker serve as an agent for the delivery of an insurancepolicy. This would be a palpably absurd result. Pennsylvania law has long recognized the validity of a dual agencyrelationship involving insurance brokers. In Rossi v. Firemen’s Ins. Co.,310 Pa. 242, 165 A. 16, 18 (1932), the Pennsylvania Supreme Court said:Defendant contends, however, that even if there were such an arrangement,Blose could not, as a matter of public policy, act as agent for bothparties in the making of a contract of insurance; the necessary effect ofthis argument being that a contract, such as the one here sued upon, whichhe undertook to make while acting in such dual capacity, would be voidable.This contention is unsound. Of course, on the principle that ‘no man canserve two masters,’ an agent cannot act as such for both parties to atransaction where the skill and judgment which he should exercise for theone might conflict with the skill and judgment which he should exercise forthe other. Everhart v. Searle, 71 Pa. 256 {1872}; Sarshik v. Fink, 292 Pa.256, 141 A. 39 {1928}. But this rule has no application where the dutiesof the agent to the two principals are of such nature that there can be noconflict between his duty of loyalty to the one and his duty of loyalty tothe other. Accord John Conlon Coal Co. v. Westchester Fire Ins. Co., 16 F. Supp. 93,96 (M.D. Pa. 1936), aff’d, 92 F.2d 160, cert. denied, 302 U.S. 751, 58 S.Ct. 271, 82 L. Ed. 581 (1937); Faramelli v. Potomac Ins. Co., 346 Pa. 228,29 A.2d 674, 676 (1943). With respect to the delivery of the policyjackets, there were no conflicts in the brokers’ duty of loyalty; it was inthe interest of Alcoa and the insurers for the brokers to deliver thepolicy jackets. Here, the jury found from the trial evidence there wasin fact an agency relationship between Alcoa and its brokers for thedelivery of the policy jackets. There is nothing unlawful or contrary topublic policy about such an agency relationship. That the Pennsylvaniaadministrative code establishes the brokers as agents of the insurers fordelivery of the policy jackets does not obviate the agency relationshipbetween Alcoa and the brokers for delivery of the policy jackets, which thejury found existed as a matter of fact. The regulation describes therelationship between a broker and the insurer as a matter of law. But theregulation does not foreclose other relationships. Here, the brokers weredual agents. The jury’s finding was not improper as a matter of law. In its interpretation of the suit limitations clauses, the trial courtheld the suit limitations began to run from periods other than theinception of the environmental damage. For example, the trial court said,’knowledge that the loss or damage for which it now claims insurance hasthe potential to involve a policy of insurance triggers the suit limitationclock for that policy.’ Clerk’s Papers at 048114. In another order, thetrial court held the limitation period commenced only after the insuredconcluded its costs would exceed the deductible. These determinations arenot correct under Pennsylvania law. In Pennsylvania, the suit limitation clause ‘runs from the date theloss insured against occurred.’ Caln Village, 75 F. Supp. 2d at 411. Thetask for the trial court is to determine when the loss insured againstoccurred. Id. In Pennsylvania, courts apply an ‘effects’ analysis to determine when anoccurrence happens. . . . Under an effects analysis, when an occurrencehappens is determined by reference to the time when the injurious effectsof the occurrence take place. . . . Accordingly, the time or date thedirect physical damage or loss occurs for purposes of the suit limitationsclauses at issue here is ascertained by determining when the injuriouseffects first manifest themselves in a way that would put a reasonableperson on notice of injury. Id. Accord Conway v. State Farm Fire & Cas. Co., 1999 WL 545009, *3 (E.D.Pa. 1999) (applying Pennsylvania law): ‘The year {time limit in the suitlimitation clause} begins to run on the date of the destructive event,regardless of the date the loss is actually discovered.’ Thus, the DICinsurers are correct when they assert, ‘{T}he occurrence and the physicalloss are one and the same, and those portions of Alcoa’s claim that involvelosses admitted to have been discovered before December 3, 1991 . . . mustbe dismissed accordingly.’ Resp’t's Revised Br. on Suit Limitation,Allocation, and Fortuity Issues at 38. As a final matter, Alcoa contends the trial court interpreted the suitlimitation clauses incorrectly in the Lexington and First State policies,both of which were issued in Massachusetts. The parties agreeMassachusetts law controls for the interpretation of these policies. UnderMassachusetts law with respect to suit limitations: No company and no officer or agent thereof shall make, issue ordeliver any policy of insurance . . . containing any condition, stipulationor agreement . . . limiting the time for commencing actions against it toa period of less than two years from the time when the cause of actionaccrues . . . Any such condition, stipulation or agreement shall be void. Mass. Gen. Laws ch. 175, sec. 22 (West 1997). Based on this statute, thetrial court held Alcoa had to ‘bring suit . . . within twenty-four monthsof discovery of the occurrence which gives rise to the claim, as thatphrase has been interpreted above.’ Clerk’s Papers at 048109. The trialcourt had held ‘discovery of the occurrence’ to mean ‘the discovery of boththe occurrence AND the potential or foreseeable existence of a claim undereach policy.’ Id. Because Alcoa did not bring suit until December 1992,long after it had learned of damage to its property in the late 1970s andearly 1980s, the suit limitation provision barred it from bringing thepresent suit. Alcoa disputes the trial court ruling because it claims the phrase’cause of action accrues’ in the Massachusetts statute is equivalent tobreach of contract by the insurers. Alcoa is correct. The SupremeJudicial Court of Massachusetts has interpreted the term ’cause of actionaccrues’ to mean the point at which the insured’s cause of action againstthe insurer ripens, i.e., when the insurer denies coverage. See Barton v.Automobile Ins. Co., 309 Mass. 128, 34 N.E.2d 516 (1941). See alsoGoldsmith v. Reliance Ins. Co., 353 Mass. 99, 228 N.E.2d 704 (1967).Alcoa’s claims under these Massachusetts-based policies are therefore notbarred by the suit limitation clause. While the trial court did not err in holding Alcoa’s brokers wereagents for the delivery of the policy jackets, and the policy jackets werepart of the insurance contracts, the trial court erred in its treatment ofwhen the repose period of the suit limitations clause commences underPennsylvania and Massachusetts law. We therefore reverse the trial court’sconclusion at Paragraph I(B) of the Amended Order Granting in PartDefendants’ Motion for Summary Judgment re: Suit Limitation, filed May 15,1996, and remand the case for further proceedings consistent with thecorrect standard under Pennsylvania and Massachusetts law. [FOOTNOTE 14] F. Fortuity The largest issue in the case was the fortuity issue, which consumedat least half the trial time and at least half of the jury deliberationperiod. ‘Implicit in the concept of insurance is that the loss occur as aresult of a fortuitous event not one planned, intended, or anticipated.’Lee R. Russ & Thomas F. Segalla, 7 Couch on Insurance 3d sec. 101:2, at 101-8 (1997). ‘The fortuity principle is central to the notion of whatconstitutes insurance. The insurer will not and should not be asked toprovide coverage for a loss that is reasonably certain or expected to occurwithin the policy period.’ Eric Mills Holmes & Mark S. Rhodes, 1 Applemanon Insurance 2d sec. 1.4, at 26 (1996). In Washington, we call the fortuity principle the known riskprinciple, and first enunciated it in Public Util. Dist. No. 1 v.International Ins. Co., 124 Wn.2d 789, 805, 881 P.2d 1020 (1994): ‘Theknown risk defense is premised on the principle that an insured cannotcollect on an insurance claim for a loss that the insured subjectively knewwould occur at the time the insurance was purchased.’ Accord HillhavenProperties Ltd. v. Sellen Constr. Co., 133 Wn.2d 751, 767, 948 P.2d 796(1997) (extending known risk principle to first-party insurance).Moreover, ‘The knowledge that some loss may occur in the future is thedriving force behind the purchase of insurance.’ Public Util. Dist. No. 1,124 Wn.2d at 808. ‘The known risk, known loss, and loss in progressdefenses are generally considered to be part of the ‘fortuity’ requirementthat runs throughout insurance law.’ 7 Couch sec. 102:9, at 102-24. Oddly, the fortuity principle never appears in insurance contracts.The principle is rooted in common law and in the statutes of at least sixstates. M. Elizabeth Medaglia, et al., The Status of Certain NonfortuityDefenses in Casualty Insurance Coverage, 30 Tort & Ins. L.J. 943, 986(1995) (listing state statutes). The fortuity principle has the effect ofan exclusion. That is, an all-risk policy might provide coverage for allrisks minus named exclusions, but never provides coverage for nonfortuitousevents, even though nonfortuitous events are not named exclusions in thepolicy. For this reason, the fortuity principle is sometimes called theunnamed exclusion. Stephen A. Cozen & Richard C. Bennett, Fortuity: TheUnnamed Exclusion, 20 Forum 222, 222 (1985). [FOOTNOTE 15] From the outset, the DIC insurers raised lack of fortuity as anaffirmative defense. For instance, Columbia Casualty Company alleged inits answer: Plaintiffs’ claims are barred to the extent that the Plaintiffs wereaware of alleged contamination to its property prior to the inception ofthis Defendant’s policies as there was no ‘risk of loss’ or no fortuitousloss. Clerk’s Papers at 000294. The policies at issue all incepted in 1977 andlater. The DIC insurers assert Alcoa knew long before 1977 its disposaland handling of toxic chemicals were causing damage to Alcoa’s property.For instance, the insurers claim Alcoa knew as early as 1969 it was losing305 pounds of mercury a day. They also claim Alcoa knew about the hazardsof polychlorinated biphenyls (PCBs) by the mid-1970s. Because of thisalleged knowledge by Alcoa, the DIC insurers contend the fortuity principleprevents coverage. Certain of the DIC insurers moved for summary judgmenton fortuity grounds. The difficulty for the trial court, and now this Court on appeal, isdeciding what legal principles to apply to the facts, which are not indispute. While Pennsylvania law applies in this case, there was noPennsylvania law on the fortuity defense or known loss doctrine at the timeof the trial court’s decision. ‘The ‘known loss’ doctrine has not beentested in the state courts of Pennsylvania.’ UTI Corp. v. Fireman’s FundIns. Co., 896 F. Supp. 362, 375 (D.N.J. 1995). The trial court had topredict what rules of law governing fortuity a Pennsylvania court wouldapply. The trial court selected the following legal principles to inform itsdecision: {A} loss or damage is no longer fortuitous, and therefore no longerinsurable: 1. when the insured knows or is substantially certain that it has on itsproperty specific substances; and 2. when the insured knows or is substantially certain that thesesubstances had or were going to ‘damage’ the insured property. Knowledgeof ‘damage’ to real property for fortuity purposes can arise in variousways, including, but not limited to: a. knowledge of a hazard to the reasonably apparent or anticipated floraand fauna that could be exposed on the insured premises (employees,wildlife, plants, vegetation, organisms); or b. knowledge that the property is unfit or unusable for reasonablyforeseeable uses of the property; or c. knowledge of circumstances or facts which Alcoa believed constitutedharm or damage to its property; or d. knowledge of circumstances or facts from which an ordinary personwould conclude that the property had been damaged. Clerk’s Papers at 042650. The trial court held it must look to thesubjective knowledge of the insured as to damage to the insured’s property.In other words, what did the insured know at the time it purchased apolicy, and when did it know it? In the trial court’s view, if theevidence supported a finding the insured knew a loss was the substantiallyprobable result of the insured’s intentional conduct, there was nofortuity, and hence no coverage. The trial court’s summary explication of the fortuity principleappears at Jury Instruction No. 14: If you find that there is damage, as described in Instruction No. 12,in the various areas at Vancouver, Massena, and Point Comfort, you mustthen determine when Alcoa learned of such damage. The DIC policies provide coverage for property damage suffered byAlcoa only if such damage was ‘fortuitous’ — that means so long as thedamage was unknown, accidental, unintended, or the result of a chanceevent. Damage is not accidental if Alcoa intended to cause such damage,knew it had already occurred, or knew that there was a substantialcertainty that its business conduct would result in such damage. Anydamage that was known to Alcoa prior to the policy period, or intended orknown by Alcoa to be substantially certain to occur before or during thepolicy period, is not covered by a DIC policy. Once known, or known to besubstantially certain, damage is not fortuitous for any subsequent policy. Alcoa has the burden of showing, by the preponderance of the evidence,that it did not know, at the time of inception of each policy year, thatthe losses for which it seeks recovery under the policies had occurred orwere occurring and that it did not intend to cause the losses or know thatthe losses were the substantially certain result of its conduct. For anydamage which you find to be fortuitous as of July 1, 1977, you will stillneed to determine if Alcoa knew that such damage had occurred, was thenoccurring, or was substantially certain to occur between 1977 and 1984. Clerk’s Papers at 049126. Applying these principles to the facts relating to Alcoa’s subjectiveknowledge, the trial court entered mixed rulings of law on summary judgmentas to the various pollutants at the three test sites. With regard tomercury contamination, the trial court ruled as a matter of law Alcoa knewmercury can pose hazards to workers and the environment. Moreover, becauseAlcoa had learned from the Texas Water Quality Board in 1970 that itsmercury discharges into Lavaca Bay at Point Comfort, Texas had injuredaquatic life and made the waters of the bay harmful and potentially toxic,the trial court ruled as a matter of law Alcoa had knowledge of damagethere. The trial court did find issues of fact concerning Alcoa’sknowledge of soil contamination, and therefore granted only in part the DICinsurers’ motion for summary judgment based on fortuity with respect tomercury. With respect to PCB contamination, the trial court ruled as a matterof law Alcoa knew prior to the inception of the earliest policy PCBs poseda threat to both the environment and living organisms. There was noconsensus, however, until 1979 on the level of PCB contamination that wouldcause harm. In 1979, the Environmental Protection Agency decided on 50 ppmas a new threshold level below which, if industry were forced to comply,industry would be unreasonably injured. The trial court fastened on thisstandard as the level above which, as a matter of law, real property isdamaged. Thus, for all the disposal sites at Massena, New York, wheresampling had shown concentrations above 50 ppm in 1979, policies issued forthose sites in 1980, 1981, and 1983 failed the fortuity principle, and theDIC insurers were granted summary judgment for those policies. As to otherareas that could not show contamination levels above 50 ppm, the trialcourt denied the insurers’ summary judgment motion. With regard to cyanide contamination, the trial court held there wasno question Alcoa knew before 1977 of the harm cyanide could cause tohumans, aquatic life, and the environment if it were discharged directlyinto water. It held as matter of law damage from cyanide contamination wasnot fortuitous for the cyanide that had not moved, and was not fortuitousafter 1978 for the cyanide that had moved and reached groundwater, becauseAlcoa learned of this fact in 1978. Clerk’s Papers at 042658-59. All of these rulings were pretrial rulings on motions for summaryjudgment. The trial court gave Instruction No. 20 (Stage 2), which isquoted above at 16-17 (Clerk’s Papers at 049132). Question No. 4 of the Special Verdict Form asked the jurors, ‘When didAlcoa know of the property damage in each area or become substantiallycertain that such damage would occur (dates should be stated as ‘pre-7/1/77,’ a policy year between 7/1/77 and 7/1/84, or ‘post-7/1/84′)?Clerk’s Papers at 050803-06. Out of 85 total subareas at the three testsites, the jury was unable to establish Alcoa’s knowledge for 33 of them.At the conclusion of the trial, the trial court set out in concise form allof the claims it had dismissed because of lack of fortuity, identified byarea and policy, as well as the areas where the damage was fortuitous. While the trial court placed the burden of proving fortuity on Alcoa,it failed to note that on motions for summary judgment, ‘One who moves forsummary judgment has the burden of proving that there is no genuine issueof facts, irrespective of whether he or his opponent would, at the trial,have the burden of proof on the issue concerned.’ Preston v. Duncan, 55Wn.2d 678, 682, 349 P.2d 605 (1960) (typeface omitted). Thus, because theinsurers moved for summary judgment, they had the burden of proving therewas no issue of fact with respect to lack of fortuity. The insurers did,in fact, come forward with facts tending to show Alcoa had the requisiteknowledge to eliminate fortuity. The issue on appeal, however, is who bears the burden of proof attrial. The trial court certified the case under CR 54(b), inter alia,specifically to obtain a determination of that issue. In assigning theburden of proof to Alcoa, the trial court was predicting what aPennsylvania court would do. The trial court observed: Where the facts surrounding the claim are not clearly fortuitous, it isfair and equitable to place the burden on the insured to provide additionalevidence tending to show that its losses were in fact the type ofunexpected and unintended injuries that satisfy the fortuity doctrine.Since the fortuity inquiry revolves around the subjective knowledge of theinsured, plaintiffs are in the best position to explain how seeminglyforeseeable results of intentional business decisions could have beenunexpected and unintended from their point of view. Contrarily, defendantshave no access to plaintiffs’ state of mind and would be hard pressed toshow subjective intent or knowledge. Clerk’s Papers at 050761. Subsequent to the Phase I trial, however, theCourt of Appeals for the Third Circuit, predicting Pennsylvania law, heldit was an insurer’s burden to prove lack of fortuity. Koppers Co. v. AetnaCas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir. 1996) (insurer has burden toprove applicability of exclusions, which act as affirmative defenses).While this decision is not, of course, binding on a Pennsylvania court, aPennsylvania court is likely to consider it as strong persuasive authority. The Koppers court said: ‘As with exclusions stated in an insurancepolicy itself, when an insurer relies on public policy {i.e., the fortuityprinciple} to deny coverage of a claim, the insurer must bear the burden.’Koppers, 98 F.3d at 1447. A district court, following Koppers, said: Under Pennsylvania law, the insured bears the burden of proving thatits claim falls within the policy’s affirmative grant of coverage. SeeKoppers Co., Inc. v. Aetna Cas. and Sur. Co., 98 F.3d 1440, 1446 (3d Cir.1996). The burden of proving the applicability of any exclusions orlimitations on coverage, however, lies with the insurer, as those areaffirmative defenses. See id. Moreover, the court must construe policyexclusions strictly against the insurer. Ehrgood v. Coregis Ins. Co., 59 F. Supp. 2d 438, 442 (M.D. Pa. 1998). We agree with the Koppers court on the burden of proof, and arepersuaded it is a better predictor of Pennsylvania law than the trialcourt’s holding. Alcoa can show its damage falls within the insuringclause, as the DIC policies cover ‘all risks of direct physical loss ordamage.’ Trial Ex. 1578-B, at 2. In the ordinary course, it should thenbe up to the insurer to come forward with some reason why an exclusionapplies. Fortuity is, in effect, an exclusion, and it logically should bethe burden of the insurer to plead and prove the exclusion, as Koppersdirected. Additionally, Alcoa, in opposing the motions for summary judgment,presented the trial court with voluminous testimony from its employees andvarious experts to the effect it did not know contamination from PCBs andmercury was causing damage at the time it purchased the DIC policies.Alcoa’s argument is persuasive under the law the trial court predictedwould obtain, but a recent Pennsylvania appellate court case has settledPennsylvania law on fortuity questions. The case establishes an objectivetest for knowledge, not the subjective test the trial court employed. In Rohm and Haas Co. v. Continental Cas. Co., 732 A.2d 1236 (Pa.Super. 1999), the court noted first the known loss doctrine was a matter offirst impression in Pennsylvania, and thus the court had to decide whetherto construe it narrowly or broadly. Id. at 1256-57. After discussingother court’s writings on the known loss doctrine, the court adopted thefollowing rule: {W}e think that the appropriate standard for the ‘known loss’ defense inPennsylvania should not be knowledge of certainty of damages and liability,but whether the evidence shows that the insured was charged with knowledgewhich reasonably shows that it was, or should be, aware of a likelyexposure to losses which would reach the level of coverage. It should notbe necessary that the insured have {sic} already been met with a tabulationof losses sufficient to reach the excess coverage, as that would implicatea standard tantamount to criminal fraud. Rather, when a sophisticatedinsured, such as Rohm & Haas, is faced with mounting evidence that it willlikely incur responsibilities to the extent of the insurance which issought, the known loss defense should intervene. Otherwise, the issue isone not of insurance, but of pure indemnity. Id. at 1258. The ‘charged with the knowledge’ language imports anobjective test into the fortuity question in Pennsylvania. Thus, in light of these decisions on Pennsylvania law that postdatedthe trial court’s decision here, we reverse the trial court and hold theburden of proof of lack of fortuity lies with the asserting parties, theDIC insurers. On remand, with respect to the trial court’s Order Grantingin Part and Denying in Part Defendants’ Motion for Summary Judgment re:Mercury, PCBs, Cyanide, and Waste Management Units, filed March 8, 1996,the trial court should conform its order to apply Pennsylvania’s law onfortuity as set forth in the Rohm and Haas case, unless that case issuperseded by subsequent Pennsylvania law. [FOOTNOTE 16] G. Allocation The final issue we address in this case is the damages available toAlcoa upon a finding of coverage under the DIC policies. The jury foundpollution damage to all three test sites occurred during the entire timethe various DIC policies were in effect. The jury also found, however,pollution damage had occurred to portions of the three sites prior to theinception of insurance coverage. Because the pollution damage occurredboth before and during the various policy periods, a question arose as tohow to attribute the remediation costs of the pollution damage. The jurywas unable to reach a verdict on whether there is a reasonable basis orbases to allocate to each separate policy year costs related to theproperty damage that occurred during that policy year. At the conclusion of the trial, Alcoa filed a motion asking the trialcourt to hold as a matter of law the pollution damages were indivisible–that is, there was no way to distinguish between pollution damage occurringprior to policy inceptions and pollution damage occurring after policyinceptions. The trialcourt denied the motion, holding as a matter of law the pollution damagecould be allocated on a pro rata, yearly basis. In its order denying themotion, the trial court prepared tables indicating the dollar amounts ofthe remediation costs the insurers were obligated to pay Alcoa. The trialcourt’s allocation procedure drastically reduced the amount the insurerswould have to pay Alcoa compared to the costs of remediation Alcoa actuallyincurred. For example, the Rod Mill Building at the Vancouver siterequired $4,048,661 to remediate. The jury found Alcoa had been causingpollution damage there for 32 years. Thus, the trial court divided 32 into$4,048,661 and held the insurers covering the Rod Mill Building had to payAlcoa only $126,520.68 for each year a policy was in effect. All in all,Alcoa states the trial court’s approach to the allocation issue resulted ina judgment of only $200,000 against its insurers, even though Alcoa spentin excess of $20,000,000 on remediation measures. Missing from the trial court’s analysis of this issue is a closeexamination of the applicable policy language. The insuring clause in theDIC policy states: ‘PERILS INSURED: This policy insures against allphysical loss of, or damage to, the insured property as well as theinterruption of business, except as hereinafter excluded or amended.’Trial Ex. 9036, at 7-8. This language is very broad and contains nolimitation as to time of the physical loss or damage to property. There isno exclusion in the policy for physical loss or damage that may have begunspreading before the policy inception. The policy definition of occurrence likewise compels a broad readingof the policy: ‘The word ‘occurrence’ shall mean any one loss(es),disaster(s), or casualty(ies) arising out of one event or commoncauses(s).’ Id. at 10. There are no words of limitation here. It seemsclear from the policy language that any physical loss or damage manifestingitself during the time a DIC policy was in effect was covered by thepolicy, including pollution damage starting before the policy inception. The trial court’s written decision does not indicate why the courtchose to allocate coverage on a pro rata basis rather than simply readingthe policy as it is written and ordering full policy coverage for thedamage Alcoa incurred. In J.H. France Refractories Co. v. Allstate Ins. Co., 534 Pa. 29, 626A.2d 502 (1993), the Pennsylvania Supreme Court considered the issue ofmultiple insurance coverage over time in the case of asbestos disease.France was an asbestos manufacturer and seller from 1956 to 1972. The wifeof a person who had died from asbestos exposure to France’s products thatoccurred between 1948 and 1978 sued France. France sought a defense andindemnification from its insurers for those years, but the insurers deniedany duty to defend or indemnify France. France then filed a declaratoryjudgment action to force the insurers to defend and indemnify. The six insurers at trial had provided policies at varying times andall the policies contained the same general liability language: {The Insurer} will pay on behalf of the Insured all sums which theInsured shall become legally obligated to pay as damages because of bodilyinjury . . . to which this insurance applies, caused by an occurrence, and{the Insurer} shall have the right and duty to defend any suit against theInsured seeking damages on account of such bodily injury. France, 626 A.2d at 505 (alterations in original). One of the issues thetrial court in that case considered was whether and how to allocatecoverage among the six insurers. The trial court prorated the obligationsof the insurers based on the time their respective policies were in effect(the France court did not explain the details of this proration). Id. at506. On appeal, the Pennsylvania Supreme Court rejected the prorationapproach: First, and most compelling, is the language of the policiesthemselves. Each insurer obligated itself to ‘pay on behalf of the Insuredall sums which the Insured shall become legally obligated to pay as damagesbecause of bodily injury to which this insurance applies.’ We have alreadyascertained that any stage of the development of a claimant’s diseaseconstitutes an injury ‘to which this insurance applies’ under each policyin effect during any part of the development of the disease. Under anygiven policy, the insurer contracted to pay all sums which the insuredbecomes legally obligated to pay, not merely some pro rata portion thereof. Id. at 507 (second emphasis added). Likewise, in the ‘perils insured’clause of the DIC policies here, the insurers obligated themselves toinsure ‘against all physical loss of, or damage to, the insured property,’not merely to some prorated portion thereof. The trial court attempted to distinguish this case from J.H. France bydescribing the differences between asbestos disease and environmentalcontamination: Asbestos that has been inhaled may have no adverse effects for years andthen may suddenly cause myriad physiological problems which are notnecessarily related to the length of exposure or the number of asbestosfibers taken into the body. Asbestos disease is not merely a corollary ofthe volume ingested. Environmental contamination, on the other hand, ismerely the sum of all its parts — each part per million of a particularcontaminant that is discharged to the environment equally damages theinsured property either by increasing the concentration of a particulararea (if movement of the pollutant is retarded) or by increasing the sizeof the impacted area (if the pollutant readily migrates). Clerk’s Papers at 050077-78. It may be true, as the trial court stated,that the progression of pollution damage can be measured and apportionedmore certainly year to year than can the progress of asbestos disease, butthat understanding begs the question of whether the express DIC policylanguage compels proration. It is the policy language that determines thescope of coverage. The policy language here does not provide for anylimitations to the scope of damage. See also American Nat’l Fire Ins. Co.v. B&L Trucking & Constr. Co., 134 Wn.2d 413, 951 P.2d 250 (1998). The insurers vigorously contend that while J.H. France may be correctas to third party coverage, it is not appropriately applied to first partycoverage, citing the ‘all sums’ language from the policy in J.H. France.We are not persuaded by this distinction. The language of the insuringagreement in the DIC policies is exceedingly broad, covering all physicalloss or damage to Alcoa’s property. This language is at least as broad asthe policy language in J.H. France. Moreover, if DIC policies mean whatthe insurers claim they mean, the policy language should reflect thatmeaning. The policies in this case do not, and we decline to write aproration of coverage into the policies when the insurers failed to do sothemselves. The trial court erred in its decision to prorate coverageaccording to the years the various DIC policies were in force. We reversethe trial court on this issue and remand the case for further proceedingsrelating to Alcoa’s judgment for insurance coverage. CONCLUSION This case presents numerous complex factual and legal issues arisingunder Pennsylvania law. We both affirm and reverse the trial court, asnoted above. WE CONCUR: :::FOOTNOTES::: FN1 The record in this case was vast, covering some 57,000 pages ofClerk’s Papers and a Report of Proceedings of over 12,000 pages. Theparties agreed to bear the cost of scanning the record into an electronicformat. The parties also submitted their briefs in CD-ROM form withhyperlinks to the record and the cases cited. We express sincereappreciation to the parties for doing this, as it greatly enhanced ourability to handle this case. The savings to the Court in time-motionefforts alone enabled us to retrieve and examine relevant parts of therecord with ease, and made the record far more accessible than it wouldhave otherwise been. The materials in this case occupy about 50 banker’sboxes. We note that there is no reason why parties in more routine appeals tothis Court should not seriously consider submitting the record and briefsto us in a similar format. FN2 On appeal, no party disputes the trial court’s Order on Choice ofLaw applying Pennsylvania law to resolve the issues before us. FN3 As the trial court noted, during the pretrial period, ‘the partiestook over 500 depositions, produced millions of pages of documents, andsubmitted over a hundred motions to the Court, at least thirty of whichinvolved dispositive issues.’ Clerk’s Papers at 050753. FN4property insurance policies, the scope of the risk underwritten by suchpolicies bears little resemblance to the marketing label placed on them.In fact, these policies exclude numerous risks. The DIC policies Alcoanegotiated contained a page-and-a-half listing of specific exclusions. Tr.Ex. 590, at 3-5. We have previously cautioned against misleading insurancemarketing descriptions of policies. See Olds-Olympic, 129 Wn.2d at 471(‘Insureds are not purchasing ‘almost comprehensive’ coverage. CGLpolicies are marketed by insurers as comprehensive in their scope’). While we doubt as sophisticated an insurance purchaser as Alcoa wasmisled by the policy labels here, in the appropriate case, we may holdinsurers to the coverage described by their marketers, as opposed to thecoverage provided by their underwriters. FN5 See Case Management Order 2. Clerk’s Papers at 000111-13. ExhibitA to Alcoa’s Second Amended Complaint lists the 99 CGL insurers it sued,and Exhibit B lists the 68 DIC insurers it sued. Clerk’s Papers at 000138-46. FN6 The indices to the standard insurance treatises, Couch and Appleman,contain no references to DIC policies. FN7 The motion was broader, but the Vancouver and Massena sites are theonly issues on appeal. FN8 The trial court instructed the jury to employ only the preponderanceof the evidence burden of proof throughout. Jury Instruction No. 15(Clerk’s Papers at 047326). The parties have not assigned error to thisinstruction. FN9 This statement of the law flatly contradicts the insurers’assertion, ‘There is no requirement that there be an intent to deceive.’Br. of Cross-Appellants at 20. FN10 It is noteworthy the jury expended an extraordinary amount of timedeliberating on Question No. 4. On August 21, 1996, the jury sent aninquiry to the trial judge: ‘We are deadlocked on many of the areas ofQuestion #4. Do we proceed to Question No. 5 for those areas where, inQuestion #4, we have the required number of votes? The jury begandeliberating on Question #4 on July 17, 1996.’ Clerk’s Papers at 049227. FN11 CR 60(b)(3) pertains to obtaining relief from an order or judgmenton the basis of newly discovered evidence. FN12 The various CGL insurers moved for summary judgment at differenttimes. As the early motions proved successful, the subsequent motionsexpanded in scope, ultimately resulting in orders granting summaryjudgments of dismissal to all the CGL insurers for all but 2 of the 35sites on the basis of the pollution exclusion clause. In a posttrialorder, the trial court listed in detail all of the many orders it hadentered on the summary judgment motions of the various CGL insurers. It isnot necessary to reiterate them here. The two sites for which the trialcourt did not dismiss Alcoa’s claim as to the pollution exclusion clauseinvolve factual questions that require a trial for resolution. They arenot at issue in this appeal. FN13 In Pennsylvania, ‘To prove fraud, a plaintiff must demonstrate: (1)a representation; (2) which is material to the transaction at hand; (3)made falsely, with knowledge of its falsity or recklessness as to whetherit is true or false; (4) with the intent of misleading another into relyingon it; (5) justifiable reliance on the misrepresentation; and (6) theresulting injury was proximately caused by the reliance.’ Gruenwald v.Advanced Computer Applications, Inc., 730 A.2d 1004, 1014 (Pa. Super.1999). Sunbeam held there was no reliance at all, let alone justifiablereliance. FN14 Our holding here resolves Alcoa’s Assignment of Error No. 13, whichassigned error to the trial court’s entire order of May 15, 1996. As notedin the text above, however, we are here reversing only Paragraph I(B) ofthe order. FN15 We note that fortuity is expressly provided for in most third partyinsurance policies. Such policies require an ‘accident’ or ‘occurrence’ totrigger cover. Often, those policies also expressly exclude coverage forintentional conduct, i.e., conduct expected or intended from the insured’sstandpoint. Moreover, ‘intentional, willful, criminal, and similar conductmay be held ‘uninsurable’ as a matter of public policy, regardless ofwhether such conduct is excluded by the contract language.’ 7 Couch sec.103:23, at 103-50. We find some discomfort in being asked to give effect to an ‘unnamed’exclusion in an insurance contract, an exclusion that purportedly existsnot as a matter of contract but as a matter of common law. Insurers knowhow to write exclusions to coverage. We wonder why they have left thefortuity exclusion to courts to find and interpret. It is conceivable,particularly for a property insurer, that an insurer might choose to writea policy indemnifying the insured for losses that may be in whole or inpart non-fortuitous. No party has, however, contended fortuity is not partof the coverage equation here, so we leave any misgivings we may have toanother day. FN16 The Rohm and Haas case was not appealed and the time for appeal hasrun.

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Aluminum Company of America v. Accident and Casualty Insurance Co. Supreme Court of the State of Washington Opinion Information Sheet Docket Number: 67340-3 Title of Case: Aluminum Company of America et al v. Accident and Casualty Insurance Co et al File Date: 05/04/2000 Oral Argument Date: 01/27/2000 SOURCE OF APPEAL —————-Appeal from Superior Court, King County; 92-2-28065-5 Honorable Kathleen J. Learned, Judge. JUSTICES ——–Authored by Philip A. Talmadge Concurring: Richard P. Guy Charles Z. Smith Charles W. Johnson Barbara A. Madsen Gerry L. Alexander Richard B. Sanders Faith E Ireland Bobbe J. Bridge COUNSEL OF RECORD —————–Counsel for Appellant(s) Steven S. Anderson Heller Ehrman White & McAuliffe 6100 Columbia Center 701 5th Ave. Seattle, WA 98104-7016 Mark S. Parris Attorney At Law 701 5th Ave Ste 6100 Seattle, WA 98104-7098 Leonard J. Feldman Heller Ehrman White & McAuliffe 6100 Columbia Center 701 5th Avenue #6100 Seattle, WA 98104-7098 Peter J. Kalis (Appearing Pro Se) Kirkpatrick & Lockhart 1500 Oliver Bldg Pittsburgh, PA 15222 Thomas M. Reiter Kirkpatrick & Lockhart 1500 Oliver Bldg Pittsburgh, PA 15222 Counsel for Respondent(s) John E. Hanson Hanson Zwink Baker & Ludlow 300 Surrey Building 10777 Main St Bellevue, WA 98004-5921 Dennis Smith Wilson Smith Cochran & Dickerson 1700 Financial Center 1215 4th Ave Seattle, WA 98161-1001 Matthew T. Boyle Mitchell Lang & Smith 600 University St #2505 Seattle, WA 98101-3134 Dale L. Kingman Peery Hiscock Pierson Kingman & Peabody 505 Madison Suite 300 Seattle, WA 98104 Mark N. Thorsrud 1325 4th Ave Ste 1300 Seattle, WA 98101 Pamela A. Lang Soha & Lang PS 801 2nd Ave Ste 1210 Seattle, WA 98104 Michael E. Ricketts Peery Hiscock Pierson Kingman & Peabody 505 Madison St., #300 Seattle, WA 98104 Steven Goldstein Betts Patterson & Mines PS 800 Financial Center 1215 Fourth Ave Seattle, WA 98161 Jeffrey C. Grant The Grant Law Firm 1218 3rd Ave Ste 1000 Seattle, WA 98101 Randy J. Aliment Williams Kastner & Gibbs 601 Union St Ste 4100 Seattle, WA 98101-2380 Patrick S. Brady 900 4th Ave Ste 1700 Seattle, WA 98164 John G. Fritts Wilson Smith Cochran & Dickerson 1700 Financial Center 1215 Fourth Ave. Seattle, WA 98161-1007 John C. Graffe Jr. Johnson Graffe Keay & Moniz 1015 3rd Ave Ste 910 Seattle, WA 98104-1107 Thomas M. Jones Cozen & O’Connor Ste 5200 Wash Mtl Twr 1201 3rd Ave Seattle, WA 98101-2945 Robert T. Seder 1325 4th Ave Ste 1300 Seattle, WA 98101 Diane L. Polscer Gordon & Polscer 1000 Second Ave Suite 1500 Seattle, WA 98104 Helen A. Boyer 1201 3rd Ave #5200 Seattle, WA 98101 Mary R. Deyoung Reed McClure Two Union Square 601 Union St Ste 4800 Seattle, WA 98101-3900 Carl E. Forsberg 900 4th Ave Ste 1700 Seattle, WA 98164 T. A. Rumsey 1000 2nd Ave Ste 1500 Seattle, WA 98104 Therese M. Hansen Soha & Lang PS 801 2nd Ave Ste 1210 Seattle, WA 98104 Ronald D. Allen Attorney At Law 800 Financial Center 1214 Fourth Avenue Seattle, WA 98161 Curt E. Feig 1201 Third Avenue Suite 5200 Seattle, WA 98101 Leo Clarke 800 5th Ave Ste 4000 1700 West Marine View Dr Seattle, WA 98104 John P. Hayes Forsberg & Umlauf PS 900 4th Ave Ste 1700 Seattle, WA 98164-1039 Martin C. Loesch PO Box 677 1700 West Marine View Dr La Conner, WA 98257 Jeniphr A. Breckenridge Hagens Berman 1301 5th Ave Ste 2900 Seattle, WA 98101 Catherine E. Doudnikoff Mitchell Lang & Smith 600 University St #2505 Seattle, WA 98101-3134 D. J. Burnham Johnson Graffe Keay & Moniz Suite 101 2115 North 30 St. Tacoma, WA 98403 Arthur J. Liederman (Appearing Pro Se) Morrison Mahoney & Miller Llp 100 Maiden Lan 22nd Floor New York, NY 10038 Edward Zampino Cozen and O’Connor One Newark Center Suite 1900 Newark, NJ 07102 Bryan M. Barber Larson King Llp 388 Market Street Suite 300 San Francisco, CA 94111 Jeff Seidman Cassiday Schade & Gloor 333 West Wacker Drive Suite 1200 Chicago, IL 60606-1289 James R. Swinehart Clausen Miller P.C. 10 South Lasalle Street Suite 1500 Chicago,, IL 60603-1098 Henry R. Daar Daar Fisher Kanaris & Vanek P.C. 200 South Wacker Drive Suite 3350 Chicago, IL 60606 Counsel for Respondent Intervenor(s) Henry R. Daar Daar Fisher Kanaris & Vanek P.C. 200 South Wacker Drive Suite 3350 Chicago, IL 60606 Lawrence D. Mason Daar Fisher Kanaris & Vanek P.C. 200 South Wacker Drive Suite 3350 Chicago, IL 60606 Mark A. Nieds Daar Fisher Kanaris & Vanek P.C. 200 South Wacker Drive Suite 3350 Chicago, IL 60606 Stuart Cotton Mound Cotton & Wollan One Battery Park Plaza New York, NY 10004-1486 Philip C. Silverberg Mound Cotton & Wollan One Battery Park Plaza New York, NY 10004-1486 Wayne Glaubinger Mound Cotton & Wollan One Battery Park Plaza New York, NY 10004-1486 Amicus Curiae on behalf of Current London Firstparty Insurer John J. Leary Jr. Smith & Leary 316 Occidental Ave. S. Suite 500 Seattle, WA 98104 Terrence L. Fredrickson Smith & Leary 316 Occidental Ave. S. Suite 500 Seattle, WA 98104 IN THE SUPREME COURT OF THE STATE OF WASHINGTON ALUMINUM COMPANY OF AMERICA; and NORTHWEST ALLOYS, INC., Appellants, AETNA CASUALTY & SURETY COMPANY; AIU INSURANCE COMPANY; ALLIANZ UNDERWRITERS INSURANCE COMPANY (formerly known as ALLIANZ UNDERWRITERS, INC.); ALLIANZ VERSICHERUNGS-AKTIENGESELLSCHAFT; ALLSTATE INSURANCE COMPANY (as successor-in-interest to NORTHBROOK EXCESS AND SURPLUS INSURANCE COMPANY which was formerly known as NORTHBROOK INSURANCE COMPANY); BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA; COLUMBIA CASUALTY COMPANY; COMMERCIAL UNION INSURANCE COMPANY; CONTINENTAL CASUALTY COMPANY; CONTINENTAL INSURANCE COMPANY; EMPLOYERS INSURANCE OF WAUSAU, a mutual company; EMPLOYERS MUTUAL CASUALTY COMPANY; EUROPEAN GENERAL REINSURANCE COMPANY OF ZURICH; EXECUTIVE RE INDEMNITY INC. (formerly known as ERIC REINSURANCE COMPANY, which was formerly known as AMERICAN EXCESS INSURANCE COMPANY); FEDERAL INSURANCE COMPANY; FIREMAN’S FUND INSURANCE COMPANY; FIRST STATE INSURANCE COMPANY; GERLING-KONZERN ALLEGEMEINE VERSICHERUNGS- AKTIENGESELLSCHAFT; GRANITE STATE INSURANCE COMPANY; GREENWICH INSURANCE COMPANY (formerly known as HARBOR INSURANCE COMPANY); HARTFORD ACCIDENT & INDEMNITY COMPANY; HIGHLANDS INSURANCE COMPANY; IMPERIAL CASUALTY & INDEMNITY COMPANY; INTERNATIONAL INSURANCE COMPANY; LEXINGTON INSURANCE COMPANY; NATIONAL CASUALTY COMPANY; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; NEW ENGLAND INSURANCE COMPANY; OLD REPUBLIC INSURANCE COMPANY; PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA; RANGER INSURANCE COMPANY; ROYAL INDEMNITY COMPANY; ROYALE BELGE S.A.; THREE RIVERS INSURANCE COMPANY (in its own right and as successor of DOMRISK, LTD.); TWIN CITY FIRE INSURANCE COMPANY; UNITED INSURANCE COMPANY; UNITED STATES FIRE INSURANCE COMPANY; ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS, Respondents. Filed May 4, 2000 NO. 67340-3