Stryker Corporation; Howmedica Osteonics Corp., Plaintiffs-Appellees/Cross-Appellants,
National Union Fire Insurance Company of Pittsburgh, PA., Defendant, TIG Insurance Company, Defendant-Appellant/Cross-Appellee.
Argued: July 27, 2016
from the United States District Court for the Western
District of ichigan at Grand Rapids. No. 1:05-cv-00051-Robert
Holmes Bell, District Judge.
Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills,
Michigan, for Appellant/Cross-Appellee.
Andrew Portinga, MILLER JOHNSON, Grand Rapids, Michigan, for
Jeffrey C. Gerish, Mary Massaron, PLUNKETT COONEY, Bloomfield
Hills, Michigan, Carlos del Carpio, Mary E. Fechtig, CARROLL
MCNULTY & KULL LLC, Chicago, Illinois, for
Andrew Portinga, David J. Gass, J. Michael Smith, MILLER
JOHNSON, Grand Rapids, Michigan, for
A. Foggan, WILEY REIN LLP, Washington, D.C., for Amicus
Before: COLE, Chief Judge; BATCHELDER and COOK, Circuit
Corporation has been engaged in a longstanding row with XL
Insurance America, Inc. (its commercial umbrella insurer) and
TIG Insurance Company (its excess liability insurer). Fifteen
years by our count. See Stryker Corp. v. XL Ins.
Am., 576 F.App'x 496 (6th Cir. 2014); Stryker
Corp. v. XL Ins. Am., 735 F.3d 349 (6th Cir. 2012);
Stryker Corp. v. Nat'l Union Fire Ins. Co., 681
F.3d 819 (6th Cir. 2012). That insurance-coverage dispute, in
its current incarnation, requires us to interpret the
"consent-to-settle" provision of an
excess-liability policy. The district court thought that the
insurance contract contained a latent ambiguity, construed
the policy against TIG, and entered summary judgment for
Stryker. But the contract is not ambiguous, in any sense of
the word, so we reverse.
is a medical technologies firm. In the late 1990s, it
purchased a subsidiary of Pfizer, Inc. that made and sold
orthopedic products. One of those products, an artificial
knee joint called the Duracon Unicompartmental Knee (or
"Uni-Knee" for short), turned out to be defective.
These medical devices were sterilized using gamma rays, which
caused ultra-high-molecular-weight polyethylene in the
artificial knees to degrade and, if implanted past their
five-year shelf-life, potentially fail. Due to an inventory
oversight, a number of expired Uni-Knees were sold to
hospitals and implanted in patients. As a result, in the
early 2000s, Stryker was subject to over 70 individual
product-liability claims and potentially obligated to cover
Pfizer's losses as well. See Stryker, 735 F.3d
turned to its insurers for relief from exposure. Two
policies, effective during the year 2000, are relevant here:
a "commercial umbrella" policy, issued by XL, and
an "excess liability" policy, issued by TIG. The
umbrella policy covered any "batch" of losses that
Stryker became "legally obligated to pay by reason of
liability imposed by law or assumed by the [i]nsured . . .
because of [b]odily [i]njury." That policy was limited
to $15 million, after a $2 million self-insured retention.
The excess-liability policy followed form, kicked in after
the umbrella policy was fully "exhausted, " ...