3. Under the laws of both Florida and Illinois, the primary objective of a Court faced with the interpretation of an insurance policy is to determine the intent of the parties. An insurance company seeking to invoke an exclusion from coverage has a heavy burden.
4. Both Florida and Illinois law permit extrinsic evidence to be introduced where a court has determined that a term in an insurance policy is ambiguous. This Court had previously found that the "asbestosis" exclusions at issue in this litigation are ambiguous. Carey Canada Inc. v. California Union Ins. Co., 708 F. Supp. 1, 4-7 (D.D.C. 1989).
5. In reviewing the extrinsic evidence to determine the intent of the parties, we have placed great importance on the objective manifestation of the parties' intent and understanding, as shown by their acts, conduct, and communications, not on their subjective, unexpressed intent.
6. Plaintiffs also rely heavily on an unpublished decision rendered in connection with an Alternative Dispute Resolution ("ADR") proceeding between U.S. Fire International Insurance ("USFI") and plaintiffs. U.S. Fire and International were dismissed from this case when they signed the so-called Wellington Agreement, under which they agreed to resolve the interpretation of their "asbestosis" exclusions in the ADR proceeding. The ADR judge found that the 1978 and 1979 USFI policies excluded only the single disease asbestosis. The ADR decision is neither controlling on nor persuasive to this Court for several reasons. First, it is the result of a private contractual arrangement between plaintiffs, U.S. Fire and International. None of the defendants here were parties to the ADR proceeding, and no evidence was taken from these defendants in that case. The ADR judge in a proceeding handled with great dispatch also did not have the benefit of the voluminous documentary evidence presented in the present litigation. Second, the ADR judge ruled that U.S. Fire by signing the Wellington Agreement waived its right to contend that its policies excluded anything other than "asbestosis." In addition, the ADR judge concluded that the term "asbestosis" as used in U.S. Fire's exclusions was unambiguous and specifically that under the Wellington Agreement extrinsic evidence was not admissible to determine the intent of the parties. This is directly contrary to the findings in our May 7, 1985 and January 13, 1989 decisions, which we again reaffirm.
7. Based on the testimony given at trial and the Court's comprehensive review of the deposition testimony and documentary evidence submitted by the parties, we hold that the defendants have shown by clear and convincing evidence that all parties to these insurance contracts understood and interpreted them to exclude all asbestos-related disease claims, not just the single disease asbestosis. Therefore, we will enforce these contracts according to the parties' intent, and hold that each of the policies at issue excludes all asbestos-related disease claims. The same conclusion was reached by the only other court that has tried the issue of the meaning of an "asbestosis" exclusion. See California Coordinated Proceedings, Judicial Proceeding No. 1072 (Tentative Decision in Phase II) (Super. Ct. Cal. 3/17/87).
8. In view of the foregoing disposition, it is not necessary for the Court, in the alternative, to reach the affirmative defense of mistake asserted by defendants Home and National Union or the affirmative defense of mistake alleged by all defendants.
An order consistent with the foregoing has been entered this day.
Date: June 1, 1989
ORDER - June 1, 1989, Filed
Consistent with the foregoing Findings of Fact and Conclusions of Law, it is this 1st day of June, 1989
ORDERED that judgment be entered for the defendants in the above entitled actions; and it is
FURTHER ORDERED that these actions shall stand dismissed.