Dart Industries v. Commercial Union Ins.

MIRIAM A. VOGEL, J.

This is a dispute between an insured (Dart Industries, Inc.) and its insurer (Commercial Union Insurance Company) about a policy that was in effect from 1946 to 1951. The policy, last seen in 1948, is missing. At trial, Dart claimed Commercial was obligated to defend and indemnify Dart in more than 1,500 product liability lawsuits. Commercial claimed (among other things) that Dart had failed to present sufficient proof of the terms and conditions of the missing policy. The trial court agreed with Dart. We agree with Commercial and explain that, although it is possible to prove the contents of a lost policy by secondary evidence, Dart did not do so in this case. Commercial is entitled to a judgment in its favor.

From the 1940's through the 1960's, Dart's predecessor distributed diethylstilbestrol (DES), an artificial hormone used to prevent miscarriages. Beginning in 1974, more than 1,500 lawsuits were filed against Dart, all claiming DES-related bodily injuries. Dart tendered the defense of the DES suits to the several companies that had insured it during the relevant years, including Commercial's predecessor. Commercial denied coverage and refused to provide…