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November 4, 1994



Gordon, Murray, McNULTY

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Plaintiff United States Gypsum Company ("Gypsum"), as insured, filed a declaratory judgment action against defendants seeking insurance coverage under certain policies issued between the 1930s and 1984 for actions filed against it involving liability relating to Gypsum's manufacture of asbestos containing building materials (ACBMs). In the underlying actions alleging property damage that are the subject of this appeal, the property owners alleged that ACBMs manufactured by Gypsum caused damage to their buildings and other properties.

The circuit court entered partial summary judgment in favor of Gypsum finding that all the primary insurers owed Gypsum a duty to defend the underlying actions. The trial court also determined that a number of excess carriers, Admiral, American Re-Insurance, Interstate and Continental (CNA), First State, and Fireman's Fund, did not owe Gypsum a duty to defend and subsequently entered an order of partial summary judgment in their favor on that issue. In another order granting partial summary judgment entered on January 8, 1990, the trial court ruled that Gypsum would be required to exhaust all available primary insurance coverage before seeking coverage under excess insurance policies.

A bench trial was subsequently held to determine whether the defendant carriers had a duty to indemnify Gypsum in eight of the underlying cases that had been settled or tried to verdict. The trial court determined that these eight underlying claims involved "property damage" as defined in the policies and that none of the exclusions contained in the policies were applicable to bar coverage. The court applied a "discovery trigger," determining that the date the ACBMs were discovered in the structures of the underlying plaintiffs was the critical event that invoked coverage. Consequently, the duty to indemnify only fell upon those policies in effect at the time of such discovery. In addition, the trial court determined "for purposes of interpreting the deductible limits of certain primary policies, the number of occurrences is determined by reference to the event for which U.S. Gypsum actually incurs liability. This Court hereby marks liability in all underlying cases by the claimant's first discovery of U.S. Gypsum's asbestos-containing products in its building. Each first discovery, therefore, constituted a separate occurrence for purposes of deductibles and limits."

Gypsum filed this appeal. It challenges the trial court's use of a discovery trigger and the trial court's interpretation of the "per occurrence" provisions pertaining to the calculation of deductibles. Gypsum also appeals a portion of the partial summary judgment order of January 8, 1990, entered in favor of excess insurers, alleging that the trial court erred in ruling that it had to exhaust all available primary coverage prior to seeking coverage under excess insurance policies.

Defendants filed a cross-appeal from the trial court's finding that a duty to indemnify existed. They argue that the trial court erred in failing to require Gypsum to prove through "actual facts" that there was "property damage" within the meaning of the policies in each of the underlying cases. Defendants also contend that the trial court erred in concluding that none of the policy exclusions or other limitations contained therein applied to preclude coverage.


A. Introduction

In December 1983, United States Gypsum Company (Gypsum) filed this declaratory judgment action against their primary insurers and excess carries who had issued general liability insurance policies spanning the period from the 1930s through 1984. This action sought a declaration that defendants were obligated to defend and indemnify Gypsum in over 200 claims for property damage resulting from the installation of various ACBMs manufactured by Gypsum, primarily acoustical finishing plasters. The underlying actions sought to recover from Gypsum both the cost of removing the ACBMS from the structures and the cost of repairing the damage which the material caused. Gypsum's declaratory action also encompassed certain underlying actions which sought damage for bodily injury as the result of exposure to asbestos. As noted below, the portion of Gypsum's declaratory action arising from these underlying bodily injury claims was severed for purposes of trial and is not involved in this appeal.

B. Language of the Policies

The specific coverage language for property damage claims may vary from policy to policy, however, the basic coverage provisions and exclusions are substantially the same and can be categorized into two groups. Generally, those primary policies which were issued to Gypsum prior to 1961 and the excess policies issued before 1959 were "accident policies." The relevant coverage provision in these policies generally provides that the insurer agrees to:

"pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident."

The remaining primary policies issued after 1961 and excess policies issued after 1959 are generally "occurrence policies." The relevant basic coverage provision of the primary policies of this period provides that the insurer agrees to:

"pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * because of * * * property damage to which this policy applies, caused by an occurrence."

Generally, these occurrence policies contained a provision stating either that the "policy applies only to occurrences which take place during the policy period" or promising to provide coverage for "property damage * * * caused by an occurrence which takes place during the policy period."

An example of one of the basic provisions of an excess policy for this period is contained in the policy issued by defendant American Motorists Insurance Co. (AMICO) which provides:

"The company agrees to indemnify the insured for all sums which the insured shall become obligated to pay as damage, direct or consequential, and expenses, all as hereinafter defined as included within the term ultimate net loss, by reason of liability * * * imposed upon the insured by law * * * because of * * * property damage * * * caused by or arising out of an occurrence which takes place during the policy period anywhere in the world."

Although "occurrence" and "property damage" are not defined uniformly throughout all of the policies, the various definitions provided in the policies reflect substantial similarity. "Occurrence" as used in the later primary and excess policies is generally defined as "an accident, including a continuous or repeated exposure to conditions, which results, during the policy period, * * * in property damage * * * neither expected nor intended from the standpoint of the insured." *fn1

Each policy also contains a provision insuring against physical injury to tangible property. In policies issued prior to 1972, "property damage" was generally defined as "injury to or destruction of tangible property, including the loss of use thereof." *fn2 In policies issued after 1972, property damage was defined as "(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom; or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period." *fn3

Most policies also contained "work product" or "own product" exclusions. Some of these exclusions provided that the insurance did not extend coverage "to injury to or destruction of * * * any goods or products manufactured, sold, handled or distributed by the name insured, or work completed by or for the named insured, out of which the accident arises." Other policy exclusions provided that coverage did not extend to:

"property damage to * * * the named insured's products * * * arising out of such products or any part of such products * * *; to property damage to * * * work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith."

Certain excess policies contained "repair or replacement" exclusions. Typically, as in the policies issued by defendant London Market and defendant National American, under these provisions, coverage did not extend to claims made against the insured:

"(i) for repairing or replacing any defective product or products manufactured, sold, handled or distributed by the insured or any defective part or parts thereof nor the cost of such repair or replacement;

(ii) for the loss of use of any such product or products or part or parts thereof;

(iii) for improper or inadequate performance, design or specification, but nothing herein contained shall be construed to exclude claims made against the insured for personal injuries or property damage (other than property damage to a product of the insured) resulting from improper or inadequate performance, design or specification."

C. Relevant Procedural History

In 1985, the trial court severed the portion of the declaratory judgment action that sought recovery based on underlying bodily injury claims from that portion based on underlying property damage claims. The trial court then proceeded with those issues relating to coverage for property damage claims only.

These proceedings relating to coverage for the underlying property damage cases were conducted in three separate phases. The first two phases involved collateral issues that were either settled or resolved without an appeal being taken. They do not concern or relate to the matters at issue in this appeal.

The issues which remained for determination in the third phase involved the duty of the various defendants to defend and indemnify Gypsum for its liability incurred in the underlying property damage cases. The trial court resolved the duty to defend issues by granting partial summary judgment in favor of Gypsum with respect to all primary insurers and certain excess carriers, finding that they owed Gypsum a duty to defend against the claims of the underlying property owners. The trial court also determined that some of the excess policies, those issued by Admiral, American Re-insurance, Interstate, CNA, First State, and Fireman's Fund, did not impose a duty to defend and in those cases the trial court granted partial summary judgment in favor of the carriers. No appeal was taken from these summary judgment orders and consequently, the issues pertaining to the duty to defend are not before us on appeal.

On January 8, 1990, the trial court entered an order of partial summary judgment in which it ruled that Gypsum was required to exhaust all available primary coverage that was triggered before seeking coverage under the excess policies. This left open the issues relating to defendants' duty to indemnify and the concomitant question as to the appropriate coverage trigger. These issues were resolved after a six-month bench trial in 1990 and 1991.

Of the approximately 250 underlying property damage cases filed against Gypsum, Gypsum tried 16 cases to verdict and received adverse verdicts in seven of those cases. Gypsum also settled 29 other cases. About 200 cases remain pending. By agreement among the parties, this coverage trial was limited to eight specific underlying cases, seven of which Gypsum had settled and one of which Gypsum tried to an adverse verdict.

The earliest installation of Gypsum's products in any of these eight underlying cases occurred in 1937. Installation continued at various points until the 1970s. Generally, the presence of asbestos in the building materials was discovered by the respective owners sometime between 1978 and 1985. These eight cases which involved a total of 53 buildings, 47 of them schools, and their underlying Dispositions are as follows: (1) Lexington, S.C. *fn4 - settled for $675,000; (2) Enterprise, Ala. *fn5 - settled for $100,000; (3) Huntsville, Ala. *fn6 - settled for $1.36 million; (4) Collier County, Fla. *fn7 - settled $40,000; (5) Orangeburg County, S.C. *fn8 - settled for $17,500; (6) Washington County, Tenn. *fn9 - settled for $180,000; (7) Consolidated Columbia, Mo. *fn10 cases - settled for $3.8 million; and (8) Independence, Mo. *fn11 - verdict including cost and interest of $757,168. The coverage and indemnification issues concerning the remaining underlying cases were stayed by the trial court. In each of the underlying eight cases, asbestos containing materials were installed in the ceilings of certain buildings. These materials, consisting primarily of ceiling finishing plasters, were removed and replaced with safer materials. The articulated reasons for removing the asbestos varied among the cases, but generally the actions were taken in order to eliminate a perceived health hazard.

Issues specific to the reasonableness of the settlement reached in the Lexington case have been raised here on appeal. In the Lexington case, the complaint alleged property damage resulting from the installation of asbestos products in Irmo High School. That complaint also alleged that U.S. Gypsum acted fraudulently and conspired with others to prevent the disclosure of medical and scientific data on the health hazards of asbestos. The Lexington plaintiff sought $360,000 for the cost of removal and abatement of asbestos and also sought an unspecified amount in punitive damages.

During the underlying Lexington trial, the Lexington plaintiff produced evidence that showed it spent $377,053.83 to remove the asbestos from the high school. Defense counsel for Gypsum determined that the trial was not going well and negotiated a settlement of $675,000 with the Lexington plaintiff.

D. Trial Testimony

During the third phase trial, Gypsum called Richard Hatfield as its expert. He had served as an asbestos consultant to some of the underlying claimants in the actions brought against Gypsum. Hatfield testified that he had experience in identifying asbestos-containing products, the circumstances under which asbestos-containing materials release fibers, and the mechanisms and frequency of asbestos fiber release.

Hatfield opined that asbestos fibers could become dislodged from ACBMs in a number of ways including age deterioration, water damage, routine building activities, and air currents and vibrations from the building's ventilation system. In support of his Conclusions regarding the air currents and vibrations, Hatfield cited a study which he conducted in a wind tunnel experiment. Hatfield also said that ordinary activities, such as sweeping, dusting, or cleaning, caused "reentrainment" of fibers. "Reentrainment" occurs when a previously released fiber is again made airborne. According to Hatfield, this reentrainment of fibers repeatedly causes contamination.

On cross-examination, Hatfield admitted that he had not performed any tests or conducted any studies to prove that asbestos fibers would be released through age deterioration, water damage and routine building activities. He agreed that he had no post-graduate degree and that his undergraduate degree was in statistics and geology. He conceded that his background did not meet the EPA's recommended criteria for asbestos consultants. Hatfield could not identify any scientific studies which supported his opinions on the susceptibility of different asbestos containing materials to fiber release, the binding strength of the components used in the particular products at issue, or the effect of different forces on fiber releasibility.

At trial, Gypsum also introduced trial transcripts and depositions from the underlying cases in which witnesses recounted their observations as to the presence and condition of ACBMs in the buildings at issue in the underlying cases. These individuals stated that the products were "friable," meaning that those materials "can release asbestos fibers following only minor disturbance to the material." This material was described as "easy to crush by hand" by an inspector of the Collier County schools, "crumbly" by the superintendent in Huntsville, and "fluffy and highly friable" and "crumbling easily under hand pressure" in the Columbia case.

Gypsum also introduced certain EPA publications that described some ways in which fiber release could occur. That material stated that fiber release can occur from vibrations. Also, certain EPA materials provide that asbestos containing materials near air streams are likely to suffer surface erosion and fiber release could result. Water damage "can dislodge, delaminate, or disturb friable asbestos-containing materials that are otherwise in good condition and can increase the potential for fiber release by dissolving and washing out the binders in the material." Furthermore, other EPA publications state that "asbestos materials can become hazardous when due to * * * deterioration over time, they release fibers into building air." The publications also provide that schools are especially prone to fiber release as they "are usually constructed with low ceilings and the level of user activity is high [and] materials are often located within the reach of students."

Gypsum introduced evidence with respect to each of the buildings in question that activities occurred which have been determined to be sufficient to cause the release of asbestos fibers. For instance, in Independence there was evidence that balls were thrown against the ceiling and that sticks were pushed into the material. In Columbia, portions of the ceiling were subject to abrasion and in Huntsville students would walk through fallen ceiling material and beat it into a powder. There was additional evidence that ceilings in other cases had initials carved into them and that there were impact marks on the ceilings. Gypsum offered testimony that the buildings in Independence, Lexington, and Huntsville were mopped and swept daily, and that the light bulbs in the buildings' light fixtures were changed on a regular basis, all of which could inject asbestos fibers into the atmosphere through either reentrainment or fiber release

There was also testimony that some of the ceilings involved in the Huntsville case had suffered water damage from leakage and that materials were "flaking off or delaminating" in "chunks and fine pieces." With respect to the Collier case, Gypsum offered testimony that there was visible evidence of deterioration, including the presence of a noticeable amount of the asbestos containing materials on work surfaces and within the carpet, as well as evidence of vibrations from a second floor gymnasium that caused a periodic flaking of the first floor ceiling.

Gypsum called two witnesses, Thaddeus Snell and Garth Geering, concerning the reasonableness of Lexington settlement. Thaddeus Snell, who was lead attorney for Gypsum in the Lexington case, pointed out in explaining the decision to settle the Lexington case, that Gypsum's opening statement in the Lexington trial was weak compared to that offered by the school district; that expert witnesses were not available to testify on Gypsum's behalf; and that Gypsum's first witness was impeached by interrogatories signed and verified on behalf of U.S. Gypsum. Snell admitted that it was the consensus of the defense lawyers present that there was a likelihood that Gypsum would face a punitive damage award if the case went to verdict

Garth Geering, former claim vice-president for the commercial division of Allstate Insurance Co., testified that of the $675,000 paid in the Lexington settlement, $377,053 was reasonably related to the Lexington plaintiff's provable compensatory damages. He testified that in reaching that Conclusion he considered that the Lexington jury was to receive an instruction on punitive damages. He refused to offer an opinion that the additional $300,000 paid was reasonable.

Defendants offered expert witness testimony to show that the release of asbestos fibers from Gypsum's products would be minimal and would not result in property damage. Dr. Gordon Bragg, a professor of mechanical engineering, testified that asbestos is a "naturally occurring mineral" which is released into the atmosphere in dust or particle form in various ways including erosion, mining, manufacturing and demolition.

Bragg stated that in order for asbestos fibers to be released from the ACBMs, an external force must act upon the cement-like plaster matrix. That force must be strong enough to separate the fibers from the larger particles of dust or debris and then disperse the fibers away from the plaster. Bragg concluded that such forceful disturbances are rare. He said that even if asbestos fibers were released and became airborne, the building's ventilation system would quickly dilute the effected air and replace the contaminated air.

According to Dr. Bragg, the only scientifically accepted method of determining the existence and extent of airborne asbestos fibers is by the taking of air samples. Dr. Bragg stated that the settled dust method of collecting samples was not sound. He asserted that dust samples cannot measure the size of fibers in the air or the amount of time it took the dust to collect on the surface. Bragg stated that dust samples taken from new carpeting and from new buildings which do not contain any asbestos containing materials have fiber levels higher than those found by Mr. Hatfield in the underlying cases.

Dr. Bragg testified that age deterioration, water damage, air stream or vibrations, and normal building activities such as changing a light bulb would not be sufficient to release asbestos fibers from the host material. Moreover, according to Dr. Bragg, there was no evidence that "reentrainment" took place with respect to asbestos fibers. Bragg stated that studies reveal that the forces which hold microscopic particles to solid surfaces prevent loose asbestos from being reentrained into the air. Dr. Bragg opined that the amount of asbestos fibers on solid surfaces inside buildings which could be reentrained is too minimal to be measurable.

Roger Morse, an architect, testified in agreement with Dr. Bragg that a great deal of external force must be used to release fibers from a hardened plaster matrix. Morse also concurred with Bragg's Conclusions that asbestos fibers would not be released from the plaster through the normal course of events. He added that the speed of air normally found in the ventilation systems of most buildings would be insufficient to dislodge asbestos fibers from ACBMs. With respect to vibrations, Morse concluded that a building which produced or suffered vibrations strong enough to result in asbestos fiber release would be uninhabitable because it would be too unstable to occupy.

Dr. Jack Peterson, an industrial hygienist, testified that people are exposed to asbestos on a daily basis. Petersen said that it is generally accepted that asbestos fibers can present a risk of harm only if the fibers are airborne and respirable. He testified that studies have shown that many asbestos particles do not remain airborne but instead fall to the floor or affix themselves on ceilings, walls or other fixtures.

Petersen pointed to the regulations governing the level of asbestos in the work place which are promulgated by the Occupational Safety and Health Administration ("OSHA"). (See, e.g., 29 C.F.R. § 1910.1101 (1989); 29 C.F.R. § 1926.58 (1990).) According to Petersen, OSHA has established the permissible asbestos fiber level at .2 asbestos fibers per cubic centimeter of air on a time-weighted basis. This time weighted average is based on a 40-year working life comprised of 50 week years and 40 hour weeks. These regulations define asbestos fibers as having a length which exceeds five microns and a length to width ration of 3:1. According to Petersen, the EPA generally determines the acceptable level of asbestos exposure in non-occupational settings by extrapolating from the levels established for the work place.

Dr. David Cugall, a specialist in pulmonary medicine, testified that the EPA conducted a study of indoor air in 37 buildings containing damaged ACBMs. The average airborne asbestos level was .0007 fibers per cubic centimeters. Dr. Cugall stated that the air in public buildings generally contains no more than .001 fibers per cubic centimeter.

According to Dr. Cugall, fibers that may be airborne will be respirable only if they are of the size to be inhaled and retained in the lungs of an individual. He testified that the human body's natural mechanisms, including the lungs, will protect it from microscopic particles including the type of asbestos fibers that were incorporated into Gypsum's products. Dr. Cugall said that he was not aware of any reported case where a patient's asbestosis or lung cancer was attributed to the occupancy of a building with ceiling plasters containing asbestos. According to Dr. Cugall, the type of asbestos used in the Gypsum's acoustical plaster products, chrysolite, does not cause asbestosis, lung cancer or malignant mesothelioma when present at non-occupational levels in office buildings and schools.

Defendants also called Dr. Koehn, an economist, and Mr. Dorchester, a real estate appraiser, who testified about the diminution in the value of the buildings in which ACBMs were installed. Dr. Koehn testified that he performed various studies from which he concluded the presence of asbestos does not affect the market value of commercial buildings, and that the presence of asbestos only began to affect the market value of school buildings in 1985. Dorchester opined that based on a literature study and an investor survey which he conducted the market value of the property in question was not effected until the mid-1980s.

D. Findings of the Trial Court

At the Conclusion of the third phase trial, the trial court found that defendants owed a duty to indemnify Gypsum with respect to all eight of the underlying property damage actions at issue. The court held that "Gypsum proved, by a preponderance of the evidence, that the underlying cases each involved allegations of and evidence from underlying claimants of actual physical damage caused by its products to other property, the building and building contents."

The trial court specifically concluded that there was property damage in the underlying cases which triggered coverage under the applicable policies. It stated:

"I find that each of the underlying cases at issue in this proceeding involved property damage so as to entitle U.S. Gypsum to indemnification under the policies at issue in this case.

I also find that there is, or was, both in general and with respect to the cases specifically at issue, * * * evidence that asbestos-containing building materials release asbestos fibers due to accidental and deliberate contact, abrasion, damage and deterioration, that asbestos fibers so released contaminate buildings and their contents, including drapes, carpets, tables, shelves, and the like, both directly and through that type of release."

In arriving at this determination, the trial court stated that it considered "the complaints, other pleadings and judicial rulings from the underlying cases, discovery that was developed in underlying cases, evidence from the trial, if any, of the underlying cases, such other evidence as those parties chose to introduce in these proceedings, including evidence regarding underlying liability issues, and how the settlements were apparently arrived at." The trial court stated that in order to determine whether U.S. Gypsum would be entitled to indemnification, it would consider whether the jury in any underlying case either found, or U.S. Gypsum reasonably believed the jury would be likely to, find that U.S. Gypsum's asbestos containing materials caused tortious property damage to the underlying plaintiffs' property.

The court further concluded that "the evidence supports the theory that actual physical damage occurred over an extended period of time." The court found that once asbestos fibers are released they will settle on horizontal surfaces where they are subject to further disturbance (dusting, air traffic, sweeping, etc.) and reentrainment into the air which results in the fibers being resuspended into the air.

The trial court rejected defendants' contention that policy exclusions barred coverage. It determined that the insurers failed to meet their burden of proving that all or any specific part of any judgment or settlement was attributable to amounts excluded by the business risk exclusion.

In determining which policies provided coverage for which underlying claims, the trial court applied a "discovery trigger." Under this approach, coverage was triggered under the particular policies that were in effect at the time the underlying claimant first discovered the presence of ACBMs. The court specifically concluded that the discovery trigger was appropriate because property damage did not occur until the presence of asbestos becomes known. It stated that "this concept was proven to the satisfaction of this Court by the Defendants' economic experts * * * who established that the function and use of a building are unaffected until the recognition that asbestos containing products contained therein are, or are perceived to be, harmful." The trial court concluded that the actual release of asbestos particles "relate only to the danger of personal injury and has no effect on the value of the property prior to discovery [and that there was no impairment of use, decrease in market value or cost to the class in the 1960s."

The trial court rejected Gypsum's contention that all of the underlying claims constituted a single occurrence per policy period for purposes of calculating "per occurrence" deductibles and limits. It concluded that each discovery constituted a separate occurrence for this purpose, as well as acting as the trigger of coverage, under the terms of the policy.

The trial court also found that under Illinois law, the insurers as privies of Gypsum were bound by the adverse liability verdict in Independence. Furthermore, it held that the insurers may not litigate the facts that bear on Gypsum's actual liability in settled cases, but that Gypsum only need prove that it was responding to a reasonable anticipation of personal liability when it settled the cases.

The trial court examined the settlements and found that five of the seven settlements entered into between Gypsum and the underlying plaintiff property owners, including the Lexington settlement, were reasonable and that the reasonableness of the settlements was supported by the record. The trial court found that the Huntsville and Enterprise settlements were not predicated solely upon Gypsum's potential liability for compensatory damages, but were enhanced to reflect "discovery violations and other behavior that U.S. Gypsum was sanctioned for." The court concluded that "since the extent to which the settlements in each of these cases were punitive, and therefore not an insurable event, cannot be easily ascertained, this Court believes that reasonably only 50 percent of the amounts actually paid should be indemnified in those cases."

In the court's decision of January 14, 1991, the court included Rule 304(a) language that there was no just reason to delay appeal or enforcement of (1) orders entered on various summary judgment motions and (2) the findings of fact and Conclusions of law entered after the trial on the issues of indemnification. Gypsum filed this appeal and defendants cross-appeal.

On appeal Gypsum challenges the trial court's use of a discovery trigger and the trial court's determination that there were multiple occurrences for purposes of calculating the deductible limits under certain policies. Gypsum also appeals a portion of the January 8, 1990, order granting partial summary judgment which held that all available primary coverage had to be exhausted before certain excess insurers' obligations became due.

In their cross-appeal, defendants challenge the trial court's finding that a duty to indemnify exists on the grounds that the trial court failed to require that Gypsum offer proof by "actual facts" at trial that there was a sufficient concentration of released asbestos fibers, i.e. that the fibers existed at an "unacceptably dangerous" level, to constitute physical property damage within the terms of the insurance policies. Defendants also argue that certain policy exclusions, including the "own product" and "repair and replacement" exclusions, apply to preclude coverage. As those issues raised by Gypsum's ...

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