This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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NEW YORK COURT OF APPEALS

1 No. 123

Travelers Casualty and Surety

Company, &c.,

Appellant,

v.

Certain Underwriters at Lloyd's

of London, et al.,

Respondents,

L'Abeille Cie D'Assurances,

et al.,

Defendants.

-----------------------------------

1 No. 124

Travelers Casualty and Surety

Company, &c.,

Appellant,

v.

Certain Underwriters at Lloyd's

of London, &c., et al.,

Respondents,

London and Overseas Insurance

Co. Ltd., et al.,

Defendants.

Cases Nos. 123 & 124:

Mary Kay Vyskocil, for appellant.

Herbert M. Wachtell, for respondents.

Reinsurance Association of America et al.; American

Insurance Association; United Policyholders, et al.; American

International Group, Inc., amici curiae.

GRAFFEO, J.:

These appeals present a common issue of contract

interpretation: whether losses from environmental injury claims

involving decades of commercial activities at numerous industrial

and waste disposal sites may properly be aggregated as a single

"disaster and/or casualty" under certain reinsurance treaties.

We conclude, under the facts and reinsurance contracts at issue,

that the aggregation of these losses is beyond the scope of the

applicable treaties.

- 2 - Nos. 123, 124

We begin with a general explanation of the purpose and

structure of reinsurance. As we described in Matter of Union

Indem. Ins. Co. of N.Y., "[r]einsurance is 'the insurance of one

insurer (the 'reinsured') by another insurer (the 'reinsurer') by

means of which the reinsured is indemnified for loss under

insurance policies issued by the reinsured to the public'" (89

NY2d 94, 105-106 [quoting Kramer, The Nature of Reinsurance,

reprinted in Reinsurance, at 5 [Strain ed 1980]]; see also,

Matter of Midland Ins. Co., 79 NY2d 253, 258; Sumitomo Mar. &

Fire Ins. Co.-U.S. Branch v Cologne Reinsurance Co. of Am., 75

NY2d 295, 301; Staring, Law of Reinsurance §§ 2:1-2:3, at 1-4).

When entering into a reinsurance contract, an insurance company

agrees to pay a particular premium to a reinsurer in return for

reimbursement of a portion of its potential financial exposure

under certain direct insurance policies it has issued to its

customers. Through this indemnity relationship, the reinsured

seeks to "cede" or spread its risk of loss among one or more

reinsurers. Reinsurance differs from direct insurance, such as

excess insurance, in that the reinsurer is not, in most cases,

directly obligated to the original insured; in fact, reinsurance

indemnity does not arise until the reinsured has paid a claim.

Reinsurance comes primarily in two forms: facultative

and treaty reinsurance. Facultative reinsurance is policyspecific,

meaning that all or a portion of a reinsured's risk

under a specific contract of direct coverage will be indemnified

- 3 - Nos. 123, 124

by the reinsurer in the event of loss. In contrast, a carrier

seeking to reduce potential financial losses from policies issued

to a class of customers or an industry may purchase treaty

reinsurance (see, Staring, supra, at § 2:3). "In a treaty

reinsurance relationship, there is '1) no individual risk

scrutiny by the reinsurer, 2) obligatory acceptance by the

reinsurer of covered business, and 3) a long-term relationship in

which the reinsurer's profitability is expected, but measured and

adjusted over an extended period of time'" (Union Indem., 89

NY2d, at 106 [quoting Clark, Facultative Reinsurance: Reinsuring

Individual Policies, reprinted in Reinsurance, at 121 (Strain ed

1980)]).

Reinsurance can be structured to provide coverage in a

number of ways. Two of the more common variations are quota

share and excess of loss reinsurance (see, Staring, supra, at §§

2:4-2:5). "The characteristics of the quota share [reinsurance

or proportional reinsurance] are that a reinsurer takes a given

percentage of the risk of each underlying policy and also

receives a certain percentage of the premiums charged, all within

stated upper limits of liability" (id., at § 2:4). In excess of

loss reinsurance, also called non-proportional reinsurance, the

reinsurer indemnifies "all or a percentage, usually high, of the

excess of loss on the reinsured risks, above a stated amount,

after the collection of any proportional reinsurance and up to a

stated limit" (id., at § 2:5). The "stated amount" or deductible

- 4 - Nos. 123, 124

Company during the years underlying these lawsuits. Although the

parties and the lower courts use the names interchangeably, we

refer to plaintiff as Travelers.

parties and the lower courts refer to the underlying insured as

Koppers, we do likewise.

is referred to as the "retention," above which the reinsurer is

obligated to pay the reinsured's loss to the extent set forth in

the contract (see, id.). Generally, the premiums for excess of

loss reinsurance are lower than those for quota share reinsurance

as the risks are not shared proportionately by the reinsured and

reinsurer (see, Webb, The Pro Rata Property Treaty, reprinted in

Reinsurance, 72 [Strain ed 1997]). Here, it is undisputed that

the various reinsurance contracts at issue are non-proportional,

or excess of loss, reinsurance treaties.

Against this backdrop, we turn to the particular facts

before us.

The Koppers Litigation

From 1960 to 1981, plaintiff Travelers Casualty and

manufacturer that has operated in locations throughout the United

States since the early 1900s. The primary policies issued from

1960 to 1972 established varying property damage liability limits

per occurrence while the excess policies for the years 1966 to

1972 limited coverage to $10 million per occurrence. Beginning

- 5 - Nos. 123, 124

Koppers and DuPont actions as "the Reinsurers."

in 1971, the primary policies contained "sudden and accidental"

pollution exclusion clauses; a similar clause first appeared in

the excess policies the following year.

During the period relevant to this appeal, Travelers

purchased various types of reinsurance in connection with its

policies issued to Koppers. In particular, Travelers purchased

facultative reinsurance for 50% of the limits of its excess

liability policies issued to Koppers from January 1, 1966 to

March 1, 1972. In addition, it secured catastrophic excess of

loss reinsurance from defendants, a number of foreign reinsurance

treaties obligate the Reinsurers to pay Travelers for "each and

every loss" incurred by Travelers that exceeds the retentions

established under the treaties. The treaties define "each and

every loss" as

"all loss arising out of any one disaster and/or

casualty under coverage of any or all insureds of the

Companies, or all loss under the products liability

coverage of any one insured, or all loss arising out of

the occupational disease hazard under Workmen's

Compensation and Employers' Liability coverage of any

one insured"

(emphasis added). In turn, the definition of "disaster and/or

casualty" is described as

"each and every accident, occurrence and/or causative

incident, it being further understood that all loss

resulting from a series of accidents, occurrences

and/or causative incidents having a common origin

- 6 - Nos. 123, 124

and/or being traceable to the same act, omission, error

and/or mistake shall be considered as having resulted

from a single accident, occurrence and/or causative

incident."

The treaties also contain a so-called "follow the fortunes"

clause which reads:

"Any and all payments made by [Travelers] in settlement

of loss or losses under [its] policies, whether in

satisfaction of a judgment in any Court against the

Insured or [Travelers] or made voluntarily by

[Travelers] before judgment, in full settlement or as a

compromise, shall be unconditionally binding upon the

[Reinsurers] and amounts falling to the share of the

[Reinsurers] shall be immediately payable to

[Travelers] by [the Reinsurers] upon reasonable

evidence of the amount paid by [Travelers] being

presented * * *

* * *

"The [Reinsurers] agree to abide by the loss

settlements of [Travelers], such settlements to be

considered as satisfactory proofs of loss."

The underlying environmental claims at issue arose in

the early 1980s when federal, state and local governments, as

well as a number of private parties, commenced environmental

actions directed at more than 150 of Koppers' plant and disposal

sites throughout the country, many of which had been in operation

for over 60 years.

In 1985, Koppers commenced an action in federal

District Court against Travelers and other insurers, including

some of the defendants in this action in their capacity as direct

insurers, seeking damages and a declaration that the insurers

were obligated to defend and indemnify Koppers for its potential

liabilities at these sites. Following a decade of litigation,

- 7 - Nos. 123, 124

insurers, and the jury awarded Koppers $70 million. That verdict

was affirmed on appeal (see, Koppers Co., Inc. v Aetna Cas. and

Sur. Co., 98 F3d 1440 [3d Cir]).

Travelers eventually settled with Koppers for approximately $140

million. According to the parties' stipulation, the "settlement

with Koppers resolved Travelers['] alleged liability to provide

insurance coverage for pollution liability claims arising at more

than 160 separate known sites throughout the United States, as

Travelers then apportioned its $140 million settlement

payment among the underlying direct insurance policies, treating

each Koppers site as a separate occurrence. Subsequently,

Travelers ceded approximately $61.5 million of this settlement to

its facultative reinsurance policies. In determining how much of

the settlement to allocate to the Reinsurers under the applicable

reinsurance treaties, Travelers treated the entire settlement as

a single "disaster and/or casualty" and appropriated the

settlement monies correspondingly among the implicated treaties.

Travelers' rationale was that the Koppers loss resulted from a

"common origin" and/or was "traceable to the same act, omission,

error and/or mistake," namely, "Koppers' company-wide waste

disposal practice." Based on this approach, the total amount

Travelers ceded to the Reinsurers is approximately $13 million of

the primary insured's claims, or about 9% of the total

settlement.

- 8 - Nos. 123, 124

without prejudice, pursuant to certain "aggregate extension

clauses" contained only in the 1960 and 1961 treaties, neither of

which is at issue in this appeal. These clauses allowed

Travelers to submit multiple aggregate "operations" liabilities

as a single reinsurance claim. Aggregate extension clauses were

not included in the subsequent treaties issued to Travelers.

After presenting its reinsurance claim to the

Reinsurers, Travelers commenced the action underlying this appeal

extensive motion practice, the Reinsurers moved for summary

judgment dismissing the claims in their entirety. In a cogent

decision, Supreme Court dismissed the complaint on the ground

that Travelers' allocation did not fall within the terms of the

applicable reinsurance treaties. The Appellate Division

unanimously affirmed (see, 277 AD2d 100), and this Court granted

Travelers leave to appeal (see, 96 NY2d 706).

The DuPont Litigation

From 1967 to 1985, Travelers provided excess and

umbrella liability insurance policies to E.I. DuPont de Nemours &

Company, the largest chemical company in the world. Travelers

then purchased reinsurance from various entities, including

defendant Reinsurers. In particular, Travelers secured three

catastrophic excess of loss treaties from the Reinsurers for the

year 1967 to cover a "disaster and/or casualty" in excess of a

$10 million retention. The relevant provisions in those treaties

-- including the definitions of "each and every loss," "disaster

- 9 - Nos. 123, 124

and/or casualty" and the "follow the fortunes" clause -- are

identical to the Koppers treaties.

In 1989, DuPont commenced litigation in Delaware

against Travelers and other insurers seeking a declaration of

insurance coverage for pollution-related claims arising from

multiple hazardous waste sites. Travelers eventually paid DuPont

$72.5 million in 1995 to settle insurance claims arising from

pollution liabilities at those sites and then apportioned this

settlement between two direct insurance policies with DuPont.

Relevant to this appeal, $69 million was attributed to a 1967-

1970 umbrella policy, with 25 different sites identified as

separate occurrences for allocation purposes.

Travelers thereafter sought reimbursement from its

reinsurers, ceding over $34 million of the settlement to certain

facultative reinsurance policies it had secured. After deducting

this amount and its retention under the 1967 excess of loss

reinsurance treaties, Travelers billed the Reinsurers

approximately $7.4 million, or about 9% of the total settlement.

As it did with the Koppers allocation, Travelers calculated this

amount by treating the environmental contamination at the DuPont

sites as a single loss. Specifically, Travelers averred that the

polluted sites shared a "common origin," namely, a managerial

failure by DuPont in the implementation and enforcement of its

company-wide environmental policy.

Similar to the Koppers scenario, Travelers then sued

- 10 - Nos. 123, 124

the Reinsurers seeking monetary damages and declaratory relief.

The Reinsurers answered and asserted a counterclaim for

declaratory relief. The Reinsurers moved for summary judgment

dismissing the complaint and for a declaration that they had no

further obligation to Travelers with respect to the settlement of

insurance claims with DuPont. Both parties asserted

substantially the same arguments raised in the Koppers

litigation.

Supreme Court granted the Reinsurers' motion dismissing

the action against them and granted declaratory relief on their

counterclaim. Noting that the language employed in the

applicable reinsurance treaties was identical to that in the

Koppers action, Supreme Court reiterated its reasons for

rejecting the "single loss" aggregation theory as outside the

terms of the reinsurance treaties. On appeal, the Appellate

Division unanimously affirmed (see, 277 AD2d 100), relying on its

holding in the Koppers appeal decided the same day. We granted

Travelers' motion for leave to appeal (see, 96 NY2d 706).

We now affirm the orders of the Appellate Division in

both actions.

Analysis

The parties' dispute centers on whether Travelers'

single allocations of its losses are encompassed by the term

"disaster and/or casualty," which includes "all loss resulting

from a series of accidents, occurrences and/or causative

- 11 - Nos. 123, 124

before this Court, we reject Travelers' contention that those

defendants who were also defendants in the underlying insurance

coverage litigations in their capacities as direct insurers are

bound under the doctrine of informal judicial admissions by the

positions they took relating to Koppers' and DuPont's waste

disposal practices (see generally, Union Indem., 89 NY2d, at 103-

104). The thrust of defendants' posture in those actions was

that Koppers and DuPont expected or intended the damage caused by

their pollution, and thus, neither insured was entitled to

coverage under the direct insurance policies (see, Koppers, 98

F3d, at 1446). This is a wholly different position from the

argument the Reinsurers present here, that is, whether Travelers'

single allocations are within the scope of the applicable

reinsurance treaties.

incidents having a common origin and/or being traceable to the

The allocations made by Travelers in the Koppers and

DuPont settlements for reinsurance purposes were premised on the

theory that pollution at the various sites had a "common origin"

or was "traceable to the same act, omission, error and/or

mistake," namely Koppers' deficient corporate environmental

policy and DuPont's failure to implement and enforce its

environmental policy. In support of this argument, Travelers

presents the common definition of "origin" as the "beginning, or

derivation from a source" (Webster's Third New International

Dictionary 1591 [1993]) and "traceable" as "capable of being

traced * * * suitable or of a kind to be attributed" (id., at

2420). Thus, Travelers contends that the plain language of the

treaties requires the "widest possible search for a unifying

factor among the underlying claims."

- 12 - Nos. 123, 124

Ltd. v Sea Ins. Co. Ltd. (1998 Lloyd's Rep. I.R. 421 (U.K.C.A.

March 26, 1998), for the proposition that "separate underlying

occurrences constitute a 'series' of occurrences under

[reinsurance] treaties [where] they 'hav[e] a common origin or

[are] traceable to the same act, omission, error and/or mistake."

In contrast to the facts here, the separate acts of vandalism and

theft underlying the losses at the seaport in Municipal occurred

at one location over an 18-month period.

In support of its proposition, Travelers relies

primarily on Axa Reinsurance Plc v Field (5 Re LR 184 [UK HL June

20, 1996]), a decision of the British House of Lords. In Axa, a

reinsurer sought a declaration disallowing the aggregation of

losses under a reinsurance policy. Although the reinsurer

prevailed, Lord Mustill, writing for the House of Lords, observed

a distinction between the use of the phrases "arising out of one

event" and "arising from one originating cause" in the context of

certain reinsurance agreements. He found the word "originating"

implied a broader scope of application, requiring "the widest

possible search for a unifying factor in the history of the

losses which it is sought to aggregate" (id., at 190). Travelers

urges that we adopt a similar view of the meaning of "common

in Axa differ from that found in the treaties in this appeal.

In the Koppers and DuPont treaties, the terms "common

origin" and "traceable to" are modified by the phrase "series of"

in the definition of "disaster and/or casualty." The word

"series" is commonly defined as "a group of [usually] three or

- 13 - Nos. 123, 124

more things or events standing or succeeding in order and having

a like relationship to each other : a spatial or temporal

succession of persons or things" (Webster's Third New

International Dictionary 2073 [1993] [emphasis added]). Our

established precedent requires that in interpreting reinsurance

policies, we give meaning to every sentence, clause and word of a

contract of reinsurance (see, Northville Indus. Corp. v National

Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621, 632-633).

Simply reading the term "disaster and/or casualty" as Travelers

urges -- conducting the "widest possible search for a unifying

factor among the underlying claims" -- would operate to excise

the words "series of" from the language of the treaty in

derogation of a basic principle of contract interpretation. We

avoid this result by incorporating the inherent spatial or

temporal boundaries of the phrase "series of" in interpreting the

treaties.

Travelers responds that this construction renders the

phrase "having a common origin and/or being traceable to the same

act, omission, error and/or mistake" superfluous. To the

contrary, the words may be read in harmony with the result that

under the "disaster and/or casualty" provision, a reinsured could

properly aggregate claims if those "accidents, occurrences and/or

causative incidents" have a spatial or temporal relationship to

one another and a "common origin." Where such a relationship is

lacking, however, a reinsured cannot simply ignore the words

- 14 - Nos. 123, 124

"series of" and point to any event, however remote in place or

time, that could possibly be considered of "common origin."

This construction further comports with the broad

definition of "each and every loss," which sets forth the overall

parameters of the reinsurer's liability. While coverage is

extended to "all loss under the products liability coverage" and

"all loss arising out of the occupational disease hazard under

Workmen's Compensation and Employers' Liability coverage," the

definition of loss limits the third category to "any one disaster

and/or casualty" (emphasis added). This limitation, coupled with

the above discussion of "disaster and/or casualty," demonstrates

that the parties did not intend for the reinsured to simply group

together all other losses as a single "disaster and/or casualty,"

but sought to allow aggregation only where the losses are linked

spatially or temporally and share a "common origin."

Nonetheless, Travelers seeks to attribute events and losses

separated spatially by thousands of miles and temporally by

decades to a single "disaster and/or casualty."

A review of the pleadings, affidavits and exhibits

submitted on the motions for summary judgment in these actions

confirms that Supreme Court and the Appellate Division correctly

held that there is no issue of material fact as to whether

Travelers' single allocations of the Koppers and DuPont

settlements are covered under the definition of loss in the

reinsurance treaties. Neither complaint contains an allegation

- 15 - Nos. 123, 124

if summary judgment was properly granted as to whether the

that the contaminated sites bear a spatial or temporal

relationship to each other. In fact, the evidence demonstrates

the opposite. In the Koppers litigation, the stipulation of

facts reveals that the acts of pollution occurred over decades

beginning in the 1920s at geographically diverse locations

ranging from New Jersey to Oregon and involved dozens of

different manufacturing processes and pollutants. The individual

site summaries for each of the 160 locations, many prepared for

Travelers during the underlying Koppers coverage litigation, are

consistent with this conclusion as well. Similarly, the evidence

in the DuPont litigation, including like site studies, reveals

that the 25 sites where the losses were apportioned were also

dispersed across the country and covered a multitude of

commercial processes and contaminations spanning 100 years.

Under the allegations of the complaints and the records

in these actions, we conclude as a matter of law that Travelers'

single allocations of its settlements with Koppers and DuPont do

not fall within the ambit of "disaster and/or casualty" in the

reinsurance treaties. In light of the fact that, as Travelers

concedes, the treatment of each site as a separate "disaster

and/or casualty" fails to pierce any of the retention levels of

the reinsurance treaties, summary judgment was properly granted

- 16 - Nos. 123, 124

polluted sites may be aggregated as a single loss, "there are

constitute a single reinsurance loss that exceeds Travelers[']

retention" (emphasis in original). Travelers has not presented

any admissible evidence demonstrating that a disputed issue of

material fact exists that any two or more sites may be aggregated

as a single loss under the reinsurance treaties.

Travelers makes an additional argument that deserves

discussion. Briefly stated, Travelers posits that the "follow

the fortunes" clauses found in the reinsurance treaties mandate

that the Reinsurers reimburse it for losses it allocates to them

reasonably and in good faith.

The "follow the fortunes" doctrine refers to a

"contractual requirement that the reinsurer accept the

settlements of the reinsured or judgments against it and pay

accordingly. Where the requirement exists, it may extend to the

acceptance of liability and amount or be limited to the amount of

a settlement where liability is not in dispute" (Staring, supra,

at § 18:1). The rationale behind this doctrine is two-fold:

first, it meets the goal of maximizing coverage and settlement

and second, it streamlines the reimbursement process and reduces

litigation by preventing a reinsurer from continually challenging

the propriety of a reinsured's settlement decision (see

generally, International Surplus Lines Ins. Co. v Certain

Underwriters and Underwriting Syndicates at Lloyd's of London,

868 F Supp 917, 921 [SD Ohio]).

While a "follow the fortunes" clause "in most

- 17 - Nos. 123, 124

does not supersede specific language in a reinsurance contract

(see, e.g., Staring, supra, at § 18:8 ["Under a following

fortunes clause, the reinsurer will be bound, as to both

reinsurance agreements leaves reinsurers little room to dispute

the reinsured's conduct of the case" (Unigard Sec. Ins. Co. v

North Riv. Ins. Co., 79 NY2d 576, 583), we agree with the

rationale of the United States Court of Appeals for the Second

Circuit that such a clause does not alter the terms or override

the language of reinsurance policies. In Bellefonte Reinsurance

Co. v Aetna Cas. and Sur. Co. (903 F2d 910 [2d Cir]), the Second

Circuit considered whether reinsurers were obligated to the Aetna

Casualty and Surety Company for an amount greater than the sums

stated in the reinsurance certificates under the "follow the

fortunes" doctrine. In holding that the reinsurers were not

liable beyond the liability cap, the court held that "allowing

the 'follow the fortunes' clause to override the limitation on

liability [] would strip the limitation clause and other

conditions of all meaning; the reinsurer would be obligated

merely to reimburse the insurer for any and all funds paid. Such

a reading would be contrary to the parties' express agreement and

to the settled law of contract interpretation" (id., at 913; see

also, Christiania General Ins. Corp. of New York v Great American

Ins. Co., 979 F2d 268, 281 [2d Cir] [holding that a reinsurer is

not obligated to indemnify for payments "in excess of its agreedto

- 18 - Nos. 123, 124

liability and amount, by a settlement, in good faith, reached in

a reasonable, or businesslike, way, if the underlying policy was

valid at the time of the loss occurrence and the loss fell within

the subject matter of both contracts as of the time the

reinsurance was effected or by reason of a later change in the

direct policy with the consent of the reinsurer."] [emphasis

added]; Reinsurance: Indemnifying Insurers for Insurance Losses,

reprinted in Reinsurance, 25 [Strain ed 1997] ["Following the

fortunes means that, so long as the reinsured acts in good faith,

its losses from underwriting that looks improvident in retrospect

or was simply unlucky will be indemnified within the terms of the

reinsurance contract."] [emphasis added]; 1 Russ and Segalla,

Couch on Insurance 3d, § 9:22, at 9-30 [1995] ["The extent of the

liability of the reinsurer is determined by the language of the

reinsurance contract, and the reinsurer cannot be held liable

beyond the terms of its contract merely because the original

insurer has sustained a loss."] [emphasis added]).

This analysis applies with equal force here. To hold

that these "follow the fortunes" clauses supplant the definition

of "disaster and/or casualty" in the reinsurance treaties and

allow Travelers to recover under its single allocation theory

would effectively negate the phrase. The practical result of

such an application would be that a reinsurance contract

interpreted under New York law that contains a "follow the

fortunes" clause would bind a reinsurer to indemnify a reinsured

whenever it paid a claim, regardless of the contractual language

defining loss.

In support of its position, Travelers relies on

American Bankers Ins. Co. of Florida v Northwestern Nat. Ins. Co.

(198 F3d 1332 [11th Cir]) and International Surplus Lines Ins.

Co. v Certain Underwriters and Underwriting Syndicates at Lloyd's

of London (868 F Supp 917 [SD Ohio]). Both cases deal with

- 19 - Nos. 123, 124

challenges by reinsurers to the reinsureds' decision to settle

claims based on the terms of the underlying policies. The courts

held that the reinsurers were bound by "follow the fortunes"

clauses in their reinsurance agreements and, as a result, the

reinsurers had to indemnify their reinsureds as long as the

payments were made reasonably and in good faith. Here, by

contrast, the Reinsurers are not contesting Travelers' settlement

decisions based on the underlying policies; rather, the challenge

is to Travelers' allocation of those settlements based on the

contractual language in the reinsurance treaties. Thus, the

holdings in American Bankers and International Surplus are

inapposite.

Accordingly, in each case the order of the Appellate

Division should be affirmed, with costs.

* * * * * * * * * * * * * * * * *

In each case: Order affirmed, with costs. Opinion by Judge

Graffeo. Chief Judge Kaye and Judges Smith, Levine, Ciparick,

Wesley and Rosenblatt concur.

Decided October 16, 2001