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ELI LILLY & CO. v. HOME INS. CO.

April 12, 1984

ELI LILLY AND COMPANY, PLAINTIFF
v.
THE HOME INSURANCE COMPANY ET AL., DEFENDANTS


Norma Holloway Johnson, District Judge.


The opinion of the court was delivered by: JOHNSON

Upon consideration of the motion of plaintiff for summary judgment, the joint opposition of defendants, the supplemental opposition of defendants Insurance Company of America, California Union Insurance Company, and Horace Mann Insurance Company, the argument of counsel, and the entire record in these proceedings, it is this 12th day of April, 1984,

 ORDERED that the motion of plaintiff for summary judgment be, and hereby is, Granted.

 MEMORANDUM OPINION

 NORMA HOLLOWAY JOHNSON, District Judge:

 Plaintiff Eli Lilly and Company moves this Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Fed. R. Civ. P.). Defendants, Lilly's insurers from 1947 to July 15, 1976, vigorously oppose the motion. For the reasons set forth in this Opinion, the Court finds that there is no genuine issue as to any material fact and Lilly is entitled to judgment as a matter of law. Accordingly, the motion of plaintiff for summary judgment is granted.

 BACKGROUND

 Eli Lilly is one of several hundred manufacturers of products containing the drug, diethylstilbestrol (DES). *fn1" Between 1947 and 1967, Lilly manufactured and sold DES for prescription use by women with a history of threatened or habitual miscarriages. *fn2" In 1970, a statistical association was shown between the ingestion of DES by pregnant women and the occurrence of vaginal clear-cell adenocarcinoma in the female offspring exposed in utero to DES. *fn3" Since the discovery of this association, Lilly's liability for clear-cell adenocarcinoma and other DES-related diseases has become the subject of voluminous litigation. Indeed, as of March 1, 1983, approximately 641 lawsuits had been filed against Lilly. *fn4"

 In the typical case, the plaintiff, a DES-daughter, alleges that her mother ingested DES during pregnancy and her in utero exposure to DES caused a DES-related injury. The most common injuries alleged by plaintiffs are vaginal or cervical clear-cell adenocarcinoma and vaginal adenosis. *fn5" Lilly also has been named as a co-defendant with other manufacturers of DES in cases where a plaintiff is unable to identify the manufacturer of the particular synthetic estrogen that allegedly caused the injury. *fn6" These cases are not uncommon since several years elapse between the ingestion of DES by a pregnant woman and the diagnosis of a DES-related disease in the male or female child of that pregnacy. *fn7"

 Lilly notified defendants of the various DES claims filed against it. *fn8" The general position of each of the insurers is, however, that its policy does not provide coverage for these claims since the proper date of the alleged DES-related injury did not occur during the policy period. *fn9" In this action for declaratory judgment, Lilly seeks a judgment declaring that 1) each policy in force from the date of ingestion of an alleged DES-related injury provides full coverage to Lilly for the entire amount of its indemnifiable losses and expenses, subject only to those underlying dollar limits of liability contained in each policy; 2) Lilly may elect under which of the policies in force it will file each claim; 3) the insurer which issued the policy that Lilly elects must pay the full amount of Lilly's indemnifiable losses and expenses with prejudgment interest as permitted by law; and 4) the participation or contribution by other insurers whose policies are in force during the period of coverage shall be the responsibility of the insurers and shall not impede or detract from Lilly's ability to receive indemnification.

 The Policies

 Lilly's product liability insurance policies with defendants are "manuscript" policies written specifically for Lilly. *fn10" However, the provision in each of these policies providing for liability coverage is identical in all material respects to the coverage provision in the Comprehensive General Liability Policy (CGL). The CGL is a standard form policy for liability coverage drafted during the 1960's by representatives of the insurance industry to deal with the problem of liability for insidious diseases; that is, illnesses which become manifest long after the initial exposure to the substance believed to cause them. *fn11" Both the 1966 version of the CGL and Lilly's policies throughout the period relevant to this litigation provide liability coverage for "occurrences" that result in personal injury. The coverage language in 199 of the 254 policies issued to Lilly is representative. It provides that the

 
underwriters hereby agree, subject to the limitations, terms and conditions hereinafter mentioned, to indemnify the Assured for all sums which the Assured shall be obligated to pay . . . for damages, direct or consequential, and expenses, all as more fully defined by the term "ultimate net loss," on account of
 
(i) personal injuries, including death at any time resulting therefrom, . . . cause by or arising out of each ...

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