Eaton Corp. v. Westport Ins. Co., 387 F. Supp. 3d 931

Cutler-Hammer (a Wisconsin company) sold asbestos-containing products through the 1970s; it merged into Eaton in 1979, after which Eaton was headquartered in Ohio. Most asbestos exposure alleged occurred before 1979.
Pre-merger Cutler-Hammer obtained liability policies from AIU, Granite State, and New Hampshire (procured and issued in Wisconsin); post-merger Eaton obtained North River policies (procured and issued in Ohio).
The insurers at issue are excess carriers that incorporate the terms of underlying policies; policy language covers "personal injuries" occurring during the policy period.
Eaton seeks a declaration that (1) Wisconsin law governs, (2) the continuous-trigger theory applies, and (3) the all-sums allocation method applies. Defendants contend Ohio law governs (and would adopt injury-in-fact trigger) and that Eaton waived all-sums by settling pro rata with other insurers.
The court treated representative policy language as dispositive, applied Wisconsin choice-of-law rules, and considered whether a conflict exists where the forum state’s law is settled but the other state’s law is undecided.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Choice of law for policies	Wisconsin law governs because many policies were procured/issued in WI and WI law on trigger/all-sums applies	Ohio law governs for Eaton-era policies; Ohio would adopt injury-in-fact trigger	Applied Wisconsin law; where forum law is settled and foreign law is uncertain, no conflict — forum law governs
Trigger theory (how coverage is "triggered")	Continuous trigger: each policy in force from first exposure through manifestation is triggered	Ohio would adopt injury-in-fact (only policy at manifestation)	Continuous trigger applies to these policies (per Wisconsin Plastics Eng'g)
Allocation method (how liabilities allocated among triggered policies)	All-sums: each triggered policy is independently liable for full loss up to its limits	Defendants point to prior Eaton settlement allocating pro rata and argue Eaton waived all-sums	All-sums allocation applies; court rejects waiver argument as previously decided
Waiver by prior settlement	Eaton did not waive all-sums by settling pro rata with other insurers	Defendants assert Eaton’s earlier settlement and allocations estop or waive all-sums	Court rejects waiver argument for these defendants (adopts prior reasoning)

Plastics Eng'g Co. v. Liberty Mut. Ins. Co., 315 Wis. 2d 556, 759 N.W.2d 613 (2009) (Wisconsin Supreme Court adopting continuous-trigger and all-sums for asbestos coverage)
Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 769 N.E.2d 835 (2002) (Ohio Supreme Court adopting all-sums allocation)
Keene Corp. v. Ins. Co. of N. Am., 667 F.2d 1034 (D.C. Cir. 1981) (discussing difficulties of identifying a single point of injury for latent disease and factors courts consider in selecting trigger theories)
Bridgeview Health Care Ctr. v. State Farm Fire & Cas. Co., 10 N.E.3d 902 (Ill. 2014) (forum law applies where forum has settled rule and other state law is undecided)
Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard)
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (choice-of-law and the absence of injury in applying forum law when no conflict exists)
Danbeck v. American Family Mut. Ins. Co., 245 Wis. 2d 186, 629 N.W.2d 150 (2001) (Wisconsin principles of insurance contract interpretation)
Wilcox v. Wilcox, 26 Wis. 2d 617, 133 N.W.2d 408 (1965) (presumption that unknown foreign law is the same as Wisconsin)
Humana Med. Corp. v. Peyer, 155 Wis. 2d 714, 456 N.W.2d 355 (1990) (where neither jurisdiction has decided an issue, apply forum law)