NO. 16-638

TWENTY-SIXTH DISTRICT

NORTH CAROLINA COURT OF APPEALS
***************************************************
)
)
Plaintiff,
)
)
vs.
)
) From Mecklenburg County
FIREMAN’S FUND INSURANCE
) No. 13 CVS 2271
COMPANY; LANDMARK
)
AMERICAN INSURANCE
)
COMPANY; NATIONAL UNION
)
FIRE INSURANCE COMPANY OF
)
PITTSBURGH, PA; SIRIUS AMERICA )
INSURANCE COMPANY (AS
)
SUCCESSOR TO IMPERIAL
)
CASUALTY AND INDEMNITY
)
COMPANY); UNITED NATIONAL
)
INSURANCE COMPANY; ZURICH
)
AMERICAN INSURANCE COMPANY )
OF ILLINOIS,
)
)
Defendants
)
RADIATOR SPECIALTY COMPANY,

******************************************************************
MOTION BY THE EDISON ELECTRIC INSTITUTE
FOR LEAVE TO FILE BRIEF AMICUS CURIAE
******************************************************************

TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
The Edison Electric Institute (“EEI”) respectfully moves this Honorable
Court for leave to file the attached brief amicus curiae in support of the Plaintiff-

-14816-4454-7896.v6

 Appellant Radiator Specialty Company (“RSC”). Pursuant to North Carolina Rule
of Appellate Procedure 28(i), EEI sets forth below the nature of its interest, the
issue of law to be addressed in its brief, its positions on that issue, and the reasons
why EEI believes that an amicus curiae brief is desirable.
NATURE OF EDISON ELECTRIC INSTITUTE’S INTEREST
EEI, organized in 1933, is the national trade association that represents all
U.S. investor-owned electric utility companies. EEI members own and operate
electric generation, transmission, and distribution facilities that serve 220 million
Americans – approximately 70 percent of all retail customers in the country.
EEI members provide electricity services in all 50 states, including North
Carolina, plus the District of Columbia and directly employ more than 500,000
workers. With anticipated total industry capital expenditures over the next three
years of more than $105 billion on average per year, the electric industry is
responsible for millions of jobs related to the delivery of power, including jobs in
North Carolina.
EEI members are among the most highly regulated of any industry in the
country, including as to construction and operation of their facilities,
environmental and workplace permits for the facilities, and the rates the companies
charge their customers. EEI members are regulated at the federal, state, and local
levels and endeavor to comply with all applicable laws and to act as good stewards

-24816-4454-7896.v6

 of their workplaces and the environment and natural resources on which the
companies rely in providing electricity to their customers.
REASONS WHY THE EDISON ELECTRIC INSTITUTE
SHOULD BE HEARD
EEI members have a significant stake in the outcome of this appeal. As
major business enterprises that provide services to the public and employ sizeable
staffs and resources to provide those services, EEI members face potential liability
for their activities despite best efforts to comply with all applicable laws and to
operate their facilities carefully. In turn, EEI members rely on insurance coverage
to help manage liability that does occur. For example, EEI members face claims
relating to workplace injuries and facility contamination, including claims that
relate to exposure that occurs over a long period of time (“long-tail liability
claims”) such as asbestos injury and environmental contamination claims. Both
types of claims have been asserted against EEI members in North Carolina.
Illustratively, an emerging legacy waste risk confronting EEI members is coal ash,
regulated in North Carolina by the North Carolina Coal Ash Management Act.
N.C.G.S. §§ 130A-309.200-231.
EEI members have purchased billions of dollars of general liability
insurance, similar to the policies at issue on this appeal, to protect themselves
against third-party liability, including potential liability arising out of workplace
exposure and environmental property damage, among other potential claims. To
-34816-4454-7896.v6

 this end, coverage in layers of millions of dollars per year was purchased year after
year for decades by EEI members in North Carolina and throughout the United
States, in part for the benefit of ratepayers and in part at ratepayers’ expense. If the
trial court’s pro rata allocation ruling is upheld, the insurance purchased by EEI’s
North Carolina members will be rendered substantially less valuable, to their
detriment and to the detriment of North Carolina’s ratepayers who are ultimate
beneficiaries of the insurance.

Furthermore, the trial court’s ruling would be

unhelpful precedent in proceedings in other states. EEI submits that it can provide
a broad perspective on the scope of coverage issue to be addressed on the instant
appeal that will aid the Court in understanding the important legal question
presented.
ISSUES OF LAW TO BE ADDRESSED AND
EDISON ELECTRIC INSTITUTE’S POSITION
If the Court of Appeals accepts EEI’s amicus brief, EEI intends to argue that
the trial court misapplied public policy in ruling that pro rata allocation applies. If
North Carolina public policy is appropriately considered, EEI will argue it favors
selection of the “all sums” principle. EEI also will argue that courts should decide
insurance disputes based on the actual wording of the insurance contracts agreed to
by commercial parties. Departure from this rule has the potential to undermine
bargained-for insurance coverage; for example, certain other standard-form
insurance wording regularly sold to utilities and other commercial enterprises
-44816-4454-7896.v6

 cannot be reconciled with a pro rata allocation rule. Adoption of a blanket pro rata
rule on the basis of public policy would place North Carolina courts in the
untenable position of having to ignore such bargained-for wording. In any case,
EEI will argue that an all sums scope of coverage rule is the better rule considering
the actual terms of standard-form commercial general liability policies sold to
RSC, the application of settled North Carolina law for interpreting insurance
contracts, and the reasoning of State Supreme Court decisions in other States.
WHEREFORE, EEI respectfully moves this Honorable Court to grant its
motion for leave to file a brief amicus curiae.
This the 12th day of September, 2016.

HUNTON & WILLIAMS LLP
Electronically Submitted
Nash E. Long, N.C. Bar#24385
Bank of America Plaza, Suite 3500
101 South Tryon Street
Charlotte, NC 28280
Tel.: (704) 378-4728
nlong@hunton.com

-54816-4454-7896.v6

 PILLSBURY WINTHROP SHAW
PITTMAN LLP
Mark J. Plumer
Vernon Thompson, Jr.
Pro Hac Vice Admission pending
1200 Seventeenth Street, NW
Washington, DC 20036-3006
Tel.: (202) 663-8000
Fax: (202) 663-8007
mark.plumer@pillsburylaw.com
vernon.thompson@pillsburylaw.com

Attorneys for Edison Electric Institute

-64816-4454-7896.v6

 CERTIFICATE OF SERVICE
I hereby certify that the foregoing MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF was electronically filed with the North Carolina Court
of Appeals today and has been served upon each of the parties to this action by
depositing same in the United States mail, postage prepaid, in an envelope(s)
addressed as follows:
Fireman’s Fund Insurance Company
Matthew Nis Leerberg, Esq.
Smith Moore Leatherwood
434 Fayetteville Street, Suite 2800
Raleigh, North Carolina 27601
Matt.Leerberg@smithmoorelaw.com

Fireman’s Fund Insurance Company
Michael Kotula, Esq.
Robert Maloney, Esq.
Rivkin Radler
926 RXR Plaza
Uniondale, NY 11556-0926
michael.kotula@rivkin.com
robert.maloney@rivkin.com

Timothy P. Lendino
Smith Moore Leatherwood
101 N. Tyron Street, Suite 1300
Charlotte, North Carolina 28246
tim.lendino@smithmoorelaw.com
Landmark American Insurance
Company
Paul C. Lawrence, Esq.
M. Duane Jones
Hedrick Gardner Kincheloe & Garofalo,
LLP
P.O. Box 30397
Charlotte, NC 28230
plawrence@hedrickgardner.com
djones@hendrickgardner.com

Landmark American Insurance
Company
Stephen M. Green, Esq.
Musick, Peeler & Garrett LLP
One Wilshire Boulevard, Suite 2000
Los Angeles, CA 90017
s.green@mpglaw.com

-74816-4454-7896.v6

 National Union Fire Insurance Co. of
Pittsburgh, Pa.
David L. Brown
Goldberg Segalla
800 Green Valley Road, Suite 302
Greensboro, N.C. 27408
dbrown@goldbergsegalla.com

National Union Fire Insurance Co. of
Pittsburgh, Pa.
Donald C. Brown, Jr., Esq.
Timothy R. Dingilian, Esq.
Jackson & Campbell, P.C.
1120 20th Street, N.W., South Tower
Washington, DC 20036-3437
dbrown@jackscamp.com
TDingilian@JacksCamp.com

Sirius America (Imperial Casualty)
Jeremy A. Stephenson, Esq.
McNair Law Firm, P.A.
301 S. Tryon Street, Suite 1615
Charlotte, NC 28282
jstephenson@mcnair.net

Sirius America (Imperial Casualty)
Lawrence D. Mason, Esq.
John Lee, Esq.
Segal McCambridge Singer & Mahoney
233 S. Wacker Drive, Suite 5500
Chicago, IL 60606
lmason@smsm.com
jlee@smsm.com

United National Insurance Company
James W. Bryan, Esq.
Nexsen Pruet, PLLC
701 Green Valley Road, Suite 100
Greensboro, NC 27408
JBryan@nexsenpruet.com

United National Insurance Company
Tom Schaufelberger, Esq.
A.J. Kornblith, Esq.
Saul Ewing LLP
1919 Pennsylvania Avenue, N.W., Suite
550
Washington, DC 20006-3434
tschaufelberger@saul.com
AKornblith@saul.com

Zurich American Insurance Company of
Illinois
Gillian S. Crowl, Esq.
Gallivan, White & Boyd, P.A.
6805 Morrison Blvd., Suite 200
Charlotte, NC 28220
gcrowl@gwblawfirm.com

Zurich American Insurance Company of
Illinois
Phil Reeves, Esq.
Jennifer Johnsen, Esq.
Gallivan, White & Boyd, P.A.
655 Beattie Place, Suite 1200
Greenville, SC 29601
preeves@gwblawfirm.com
jjohnsen@GWBlawfirm.com

-84816-4454-7896.v6

 This the 12th day of September, 2016.

Electronically Submitted________________
Nash E. Long

-94816-4454-7896.v6