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TRIANGLE PUBLS., INC. v. LIBERTY MUT. INS. CO.

January 4, 1989

TRIANGLE PUBLICATIONS, INC.
v.
LIBERTY MUTUAL INSURANCE COMPANY



The opinion of the court was delivered by: GREEN

 CLIFFORD SCOTT GREEN, UNITED STATES DISTRICT JUDGE.

 Presently before this court are defendant's three motions for summary judgment, and responses thereto. In addition, both parties have sent additional support for their positions directly to chambers. This court also heard oral argument on the issues raised in defendant's motions. All of this information will be considered in addressing the motions pending before me.

 BACKGROUND

 In 1975, the New Jersey State Bureau of Air Pollution began inspecting the Swope Oil and Chemical Company headquarters site located in Pennsauken, New Jersey ("Swope Site"). The agency cited the Company for operating without proper permits. The Company was cited again by the agency, in 1979, for failing to take measures against the release of toxic waste.

 In June of 1983, the United States Environmental Protection Agency ("EPA") informed Philadelphia Newspaper, Inc., through its counsel, that it might be a "Potentially Responsible Party" under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9657 ("CERCLA"). EPA alleged that due to the procedures being used by Swope Oil and Chemical Company, from 1965 to 1979, the newspaper might be partially responsible for the toxic waste found in the surrounding water and earth. It seems that the newspaper cleaned its presses with a roller wash, and sold the used liquid to Swope Oil and Chemical Company. The Company treated the roller wash for the newspaper's reuse. The wash that was not resold was placed in an unlined lagoon at Swope Site. This roller wash waste contained toxic agents. The waste leached, seeped, and percolated into the adjacent earth and ground water. Consequently, Swope Site was designated a Superfund Site in 1983.

 In October of that year, EPA and the New Jersey Department of Environmental Protection entered into a contract which provided funding for a feasibility study, and addressed the long term remediation plan for Swope Site. A draft of the feasibility study was submitted to EPA on February 8, 1984. A month later, Triangle Publications, Inc. ("Triangle") was notified, through counsel, of its potential liability under CERCLA since Triangle owned Philadelphia Newspaper Inc. during the time Swope Oil and Chemical Company was storing the roller wash waste in the unlined lagoon. In April of 1984, EPA proposed an Administrative Order on Consent which provided for the voluntary clean up of Swope Site. Triangle, along with several other potentially responsible parties, joined in the final order issued on May 14, 1984.

 A few months later, Triangle was asked by its attorneys to determine whether any insurance coverage existed for the years 1965 to 1979. Triangle discovered that it had policies with Liberty Mutual Insurance Company ("Liberty Mutual") from 1965 to 1969, the CNA Insurance Company for 1969, and the Allstate Insurance Company from 1970 to 1980. After the Order on Consent was put into effect, Triangle demanded that Liberty Mutual indemnify it for the costs it incurred in defending itself in the EPA action and in, eventually, participating in the clean up of Swope Site. Liberty Mutual refused, contending that it was not responsible for any costs under the contracts.

 For purposes of this motion only, the parties agree that the terms of the Liberty Mutual Standard Comprehensive General Liability ("CGL") policy, which was in effect from 1965 to 1969, will govern. Apparently, the original Triangle-Liberty Mutual policies have been lost, and copies are not available. Liberty Mutual's standard CGL provided in pertinent part:

 
Coverage B -- PROPERTY DAMAGE LIABILITY
 
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . property damage to which this policy applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such . . . property damage, even if any of the allegations of the suit are groundless, false or fraudulent . . . . "Occurrence" means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

 DISCUSSIO ...


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