In Pilkington N.A. Inc. v. Travelers Cas. & Sur. Co., No. 3:01CV7617, 2009 U.S. Dist. LEXIS 67291 July 27, 2009), the District Court determined there was coverage for a corporate successor under the predecessor's CGL policy after an asset transfer.  We previously reviewed here various cases addressing the impact of the anti-assignment provision in CGL policies, including the Ohio Supreme Court's response to the District Court's certified questions in Pilkington.

   Pilkington North America, Inc. sought coverage for environmental damage resulting from glass manufacturing by its predecessor, Libbey Owens Ford Company [LOF], prior to 1986.  The insurers had issued policies to LOF prior to 1986.

   In 1986, LOF entered a Transfer and Assumption Agreement [TAA] with a new wholly-owned subsidiary, LOF Glass, and transferred to LOF Glass the assets and liabilities of its glass division.  A month later, LOF entered into a Stock Exchange Agreement [SEA] with Pilkington Holdings, Inc.  As part of the SEA, LOF Glass transferred its corporate name to Pilkington Holdings.  The company was later known as Pilkington North America ("Pilkington").  The issue was whether any choses in action (the right to bring an action to recover money) regarding insurance coverage for pre-existing environmental liabilities transferred from LOF to Pilkington in the 1986 transactions? 

   In 2005, the District Court certified questions to the Ohio Supreme Court, including whether the policies' anti-assignment clauses barred acquisition by Pilkington of the choses in action?  The Ohio Supreme Court responded that a chose in action was transferable as to the duty to indemnify despite the anti-assignment provision .   See Pilkington N. Am. Inc. v. Travelers Cas. & Sur. Co., 861 N.E. 2d 121 (Ohio 2006). 

   Subsequent to the Supreme Court's ruling, the parties renewed their motions for summary judgment before the District Court.  Pilkington argued that under the TAA, LOF transferred all of its choses in action arising from the glass business to Pilkington. The insurers argued that the TAA did not effectuate a transfer of choses in action from LOF to Pilkington.  Therefore, only LOF could seek coverage for any liabilities resulting from the pre-1986 operations.

   The District Court determined the TAA transferred all of the choses in action from LOF to Pilkington.  The TAA stated that LOF would "convey, assign, transfer and set over to Pilkington all of LOF's right, title and interest in and to all of the rights and property."  Because under Ohio law choses in action arising under an insurance policy were transferable as assets even if the policy contained an anti-assignment clause, the TAA transferred assets from LOF to Pilkington, including the choses in action at issue in this case.