see also Shields v. Eli Lilly & Co., 283 U.S. App. D.C. 41, 895 F.2d 1463, 1465 (D.C.Cir. 1990) (court must "grant all reasonable inferences to the nonmoving party") (citation omitted). That function must await a trial. See Liberty Lobby, 477 U.S. at 249.
At present then, all we can conclude is that defendants' duty to defend is triggered if the allegations of an underlying complaint would permit proof that any of the following occurred while their policies were in effect: (1) installation of ACM in the building; (2) release of asbestos fibers into the air of the building; or (3) reentrainment of settled releases of fibers into the air of the building. See Phase V-A Decision, supra, at 16. Similarly, defendants' duty to indemnify is triggered if plaintiff can establish that any of these events occurred while defendants' policies were in effect. See id. Because there is a genuine dispute as to whether fiber release and reentrainment occur continuously, we are unable to adopt the presumptive continuous trigger plaintiff seeks.
See id. at 15-17. While mindful that insurance policies must be "liberally construed in favor of the insured," Feldman v. Central National Insurance Co., 279 So. 2d 897, 898 (Fla.Dist.Ct.App. 1973), we emphasize that the insured bears "the burden of proving that the alleged loss . . . occurred within the period that the policy was in force." Banco Nacional de Nicaragua v. Argonaut Insurance Co., 681 F.2d 1337, 1339 (11th Cir. 1982); see Exhibitor, Inc. v. Nationwide Mutual Fire Insurance Co., 494 So. 2d 288, 289 (Fla.Dist.Ct.App. 1986), review denied, 503 So. 2d 327 (Fla. 1987); see also American States Insurance Co. v. Piasecki, 392 So. 2d 1369, 1370 (Fla.Dist.Ct.App. 1981); Universal Underwriters Insurance Corp. v. Reynolds, 129 So. 2d 689, 691 (Fla.Dist.Ct.App. 1961). Because it remains unclear whether property damage caused by ACM is a continuous process, Carey Canada has not yet satisfied that burden. Compare Keene Corp. v. Insurance Co. of North America, 215 U.S. App. D.C. 156, 667 F.2d 1034, 1047 (D.C.Cir. 1981), cert. denied, 455 U.S. 1007, 102 S. Ct. 1644, 71 L. Ed. 2d 875, 102 S. Ct. 1645 (1982) (continuous trigger applies because bodily injury caused by asbestos begins with inhalation of fibers and ends with manifestation); accord Phase V-A Decision, supra, at 15 ("The continuous trigger adopted . . . in the bodily injury cases was based upon a finding that bodily injury from asbestos exposure was a continuous process beginning with first exposure."). Accordingly, plaintiff's motion for summary judgment on the trigger of coverage issue is denied. We turn now to defendant First State's motion to strike and for sanctions.
II. First State's Motion to Strike and for Sanctions
This motion concerns the so-called Fulbright & Jaworski memorandum, which plaintiff attached as Exhibit C to its reply memorandum in support of its motion for partial summary judgment on the trigger of coverage issue. Prepared in 1983 at the request of the Asbestos Claims Council -- of which Aetna, First State's parent, was a member -- this memorandum discusses case law relevant to the question of insurance coverage in asbestos property damage lawsuits. Carey Canada attached the memorandum as evidence that First State's "own counsel concluded [both] that the underlying asbestos building cases alleged property damage," and that the policy language at issue here provided coverage. Pl. Reply Mem. in Supp. of Mot. for Part. Summ. Judg. at 19.
In a joint submission, defendants immediately objected to this exhibit, as well as to certain insurance industry drafting documents attached as Exhibits D and E to the same reply memorandum. The exhibits, they asserted, failed to comply with the requirements of Rule 56(c) and (e), Fed. R. Civ. P. (describing materials to be considered on motion for summary judgment). Subsequently, First State moved to strike the Fulbright & Jaworski memorandum from the record and for sanctions against Carey Canada. We deferred ruling on this motion pending our resolution of plaintiff's motion for partial summary judgment. See Memorandum Opinion, Mar. 31, 1988, at 22.
Although we are now prepared to rule on the motion, we note that the parties have launched a premature battle concerning the ultimate admissibility of the Fulbright & Jaworski memorandum under the Federal Rules of Evidence.
They also dispute whether the memorandum's introduction would violate the so-called Wellington Agreement, to which First State and Carey Canada are parties.
As the record now stands, these issues simply are not ripe. Plaintiff exhibited the memorandum for a very narrow purpose, and we ultimately found no need to consider it in ruling on the trigger of coverage issue.
Accordingly, we decline to address the parties' broader arguments on this subject at this time.
Nonetheless, because First State raised a timely objection, we will grant its motion to strike on the narrower ground that the Fulbright & Jaworski memorandum was neither attached to an affidavit nor certified, as required by Rule 56(e), Fed.R.Civ.P. See Catrett v. Johns-Manville Sales Corp., 263 U.S. App. D.C. 399, 826 F.2d 33, 38 n. 10 (D.C.Cir. 1987); 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure, § 2722, at 56-61, and cases cited therein (1983 & Supp. 1990) [hereinafter Federal Practice ]. Its motion for sanctions, however, is denied without prejudice. We now turn to the cross-motions for summary judgment, which concern an exclusion clause contained in two of the policies at issue in this case.
III. The Cross-Motions for Summary Judgment and The "Endorsement Seven" Exclusion
First State and National Union's 1977-78 policies follow form to Northbrook policy no. 63 003 744, the lead umbrella policy for that year. See Carey Canada, Inc. v. California Union Ins., Nos. 83-1105 and 86-1142, slip op. at 2 n. 1 (D.D.C. May 7, 1985) (Pratt, J.); First State policy no. 924634 (policy follows the "terms, definitions, exclusions and conditions" of the Northbrook policy); National Union policy no. 1189777 (policy follows the "terms and conditions" of the Northbrook policy). Endorsement seven of Northbrook's policy reads, in part:
A. In consideration of the premium charged, it is understood and agreed that this insurance shall not apply to: