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Case 2:03-cv-01552-LS Document 379-6 Filed 08/18/10 Page 1 of 3













EXHIBIT G

Case 2:03-cv-01552-LS Document 379-6 Filed 08/18/10 Page 2 of 3
Case 2:03-cv-01552-LS Document 210 Filed 02/02/06 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE EA STERN DISTRICT OF PENNSYLVANIA

Plaintiff

v.

ASTE NJOHNSON, INC .,

:
:
:
:
:
CO LUMBIA C ASUA LT Y C O., et al., :
:

Defendants

CIVIL ACTION

NO. 03-1552

O R D E R

AND NOW, this 2nd day of February, 2006, after consideration of Motion in

Limine to Preclude AstenJohnson, Inc. from Presenting Argument or Evidence

Concerning Columbia's Alleged Failure to Obtain A pproval from the Pennsylvania

Department of Insurance for the Subject Asbestosis Exclusion, (Dkt. #165), American

Insurance Company’s Motion in Limine re Regulatory Approval of Policy Form s (Dkt.

#162), and all responses thereto, it is hereby ORDERED that the Motions are

GRANTED.1

1AstenJohnson alleges that the asbestosis exclusion in the 1981 policy is void because

Columbia (and American) never submitted it to the Insurance Commissioner for approval, which
is required under 40 PA. STAT. ANN. § 477b, which requires all “contracts of insurance, or use
applications, riders, or endorsements . . . [to be] submitted to and formally approved by the
Insurance Commissioner.” For the following reasons, I will grant the Defendants’ Motions in
Limine.

First, § 477b does not provide for a private cause of action. 40 PA. STAT. § 477b; see

also Magner v. Associated Ins. Cos., Inc. 1995 WL 29045, *7, No. 93-1932 (E.D.Pa. 1995)
(Hutton, J.) (“Pennsylvania does not recognize a private cause of action for violation of 40 P.S.
§477b”). Second, § 477b on its face does not call for invalidation of a clause in an insurance
contract for violation of the section. See Cinkutis v. Confederation Life Ins. Co., 1990 WL
161260, No. 89-8354 (E.D.Pa. 1990) (O'Neill, J.); Butler v. Bankers Mutual Fire Ins. Co., 76 Pa.
D. & C. 352 (Lackawanna Cty. 1951). Indeed, there is no case law in which an insurance
contract was invalidated, in part or in whole, as the result of a failure to garner Commission

Case 2:03-cv-01552-LS Document 379-6 Filed 08/18/10 Page 3 of 3
Case 2:03-cv-01552-LS Document 210 Filed 02/02/06 Page 2 of 2

BY THE COURT:

/s/ Law rence F. Stengel
LAW RENCE F. STENG EL, J.

approval.

AstenJohnson also makes a twofold “public policy” argument. First, it argues that even if
the asbestosis exclusion had been submitted for approval, it would not have been approved by the
Commission as a matter of public policy. However, even if the Insurance Commissioner had had
a policy of not approving asbestos exclusions, courts have held that the Commissioner is not an
arbiter of public policy. Ellison v. Safeguard Mutual Ins. Co., 209 Pa. Super. 492, 496-97 (1967)
(where the legislature failed to include an arbitration requirement in an insurance regulation,
“neither the executive nor the judiciary may under the guise of interpretation or public policy
apply it.”). Second, AstenJohnson argues that the court could invalidate the clause on public
policy grounds, even if the clause were otherwise valid. The only cases cited for the proposition
that a court can invalidate a clause in an insurance contract on public policy grounds, however,
were cases in which the clause in question violated another clause of the Insurance Code. See,
e.g. Richmond v. Prudential Property and Casualty Ins. Co., 2004 Pa. Super. 328 (2004).
Accordingly, allegations that a contract is contrary to public policy must be supported by
legislative action, in order to be sufficient to merit judicial invalidation. See Burstein v.
Prudential Prop. and Casualty Ins. Co., 570 Pa. 177, 183 (2002) (“In the absence of a plain
indication of that policy through long governmental practice or statutory enactments, or of
obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary
to public policy. The courts must be content to await legislative action.”). I do not find any
circumstances here that merit invalidation. Therefore I will grant Defendants’ Motions in Limine
to exclude evidence of the alleged failure to submit the asbestosis exclusion to the Pennsylvania
Insurance Commission.