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KOPPERS CO. v. AETNA CAS. & SUR. CO.

December 27, 1993

KOPPERS COMPANY, INC., Plaintiff,
v.
THE AETNA CASUALTY AND SURETY COMPANY, THE TRAVELERS INDEMNITY COMPANY, THE AMERICAN HOME ASSURANCE COMPANY, COMMERCIAL UNION INSURANCE COMPANY, THE HOME INSURANCE COMPANY, and UNDERWRITERS AT LLOYD'S OF LONDON, Defendants.



The opinion of the court was delivered by: MAURICE B. COHILL, JR.

 COHILL, D.J.

 Before this Court is a Motion for Partial Summary Judgment (Doc. 239) filed by defendant The Aetna Casualty and Surety Company (Aetna). Other defendants in this case joined Aetna's motion. Those defendants are Jackson and Companies (joined June 30, 1993; Doc. 241), Commercial Union Insurance Company (July 21, 1993; Doc. 257), The American Home Insurance Company (August 4, 1993; Doc. 260), and The Home Insurance Company (September 9, 1993; Doc. 265) (collectively referred to as the "joining defendants"). For the reasons below, we will grant the motion with respect to Aetna and the joining defendants.

 I. Background

 The complaint initiating this case was filed on September 16, 1985 by Koppers Company, Inc. (Koppers). (In 1988 Koppers was acquired by Beazer PLC, and Koppers' name was changed to Beazer. Beazer retained the environmental liabilities that are the subject of this action. Blundon Affidavit P 5. For consistency, we continue to refer to the plaintiff as Koppers.) Koppers subsequently filed a First Amended Complaint on September 15, 1988; a Second Amended Complaint on December 19, 1988; and a Third Amended Complaint on February 26, 1993.

 More than three decades ago, Aetna began providing primary liability indemnity insurance for Koppers. The insurance coverage was for the period January 1, 1960 to May 1, 1981. Third Amended Complaint P 3. In February 1993, Koppers filed its Third Amended Complaint against five insurance companies, including Aetna, seeking coverage for claims by the U.S. Environmental Protection Agency (EPA), state enforcement agencies, and others asserting that Koppers is liable under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq., and similar state laws, for environmental damage at 55 landfills and 93 plant sites throughout the United States. In response to the Third Amended Complaint, defendant Aetna brought this motion for a partial summary judgment.

 The focus of this litigation, and the present motion, is whether Koppers is covered, for the period January 1, 1971 through May 1, 1981 (the "relevant period"), by the comprehensive general liability policies issued to it by Aetna (the "policies"). This question is separated into two parts: (1) was a clause that excludes coverage for certain pollution (the "pollution exclusion clause") in the policies; and (2) if so, does the exception to the exclusion, which retains coverage for "sudden and accidental" discharges, apply at the eleven landfill sites that are the subject of this motion. We begin by setting forth the general standard used in evaluating a motion for summary judgment.

 II. Standard for a Summary Judgment

 A summary judgment may be granted only if the moving party shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; Boyle v. Governor's Veterans Outreach & Assist. Ctr, 925 F.2d 71, 75 (3d Cir. 1991). The facts must be viewed in the light most favorable to the non-moving party. Bechtel v. Robinson, 886 F.2d 644, 647 (3d Cir. 1989). The allegations of the party opposing the motion must be taken as true, and when these allegations conflict with those of the moving party, the former must receive "the benefit of the doubt." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). The asserted issues of fact, however, must be "genuine." Fed. R. Civ. P. 56(c). Once the moving party has met its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also DeLuca v. Atlantic Refining Co., 176 F.2d 421, 423 (2d Cir. 1949) (Hand, J.), cert. denied, 338 U.S. 943, 94 L. Ed. 581, 70 S. Ct. 423 (1950); 10A Charles A. Wright, Arthur R. Miller, and Mary K. Kane, Federal Practice and Procedure § 2727 (1983). Pursuant to Fed. R. Civ. P. 56(e), the non-movant must come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). And where the record "taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587. As is well known, Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 With these rules in mind, we now proceed to apply the standard to Aetna's motion for partial summary judgment.

 III. Aetna's Motion for Partial Summary Judgment

 In its present motion, Aetna (and the joining defendants) moves for summary judgment as to eleven of the fifty-five landfill sites included in the Third Amended Complaint (the "subject sites"): Lowry, Mays/Bologna, Missouri Electric Works, the New York City landfills (Pelham Bay, Bronx; Pennsylvania Avenue, Brooklyn; Fountain Avenue, Brooklyn; Edgemere, Queens; and Brookfield, Staten Island), Quanta Resources, Sharkeys, J.V. Peters, Buckeye, Butler Tunnel, M.P.I., and Review Avenue.

 Before deciding whether the parties have shown or negated the existence of a genuine issue of material fact, we necessarily must set forth what are the material facts in this dispute: (1) whether the pollution exclusion clause appears in the policies, and (2) whether the discharge of pollutants at the eleven landfill sites was sudden and accidental.

 In Pennsylvania, the burdens in a dispute over an insurance policy exclusion, and an exception to that exclusion, are divided as follows: the insurer has the burden of proving the exclusion; the insured has the burden of proving the exception to the exclusion. Northern Ins. Co. v. Aardvark Associates, Inc., 942 F.2d 189, 194-95 (3d Cir. 1991). In other words, and quite sensibly, whoever wants something - either coverage or an escape from coverage - must prove that it is legally entitled to it.

 Accordingly, Aetna must show that there is no genuine issue of material fact disputing that the pollution exclusion was in the policies it issued to Koppers. If Aetna wins on this score, then Koppers must prove that there is no genuine issue that the exception to the pollution exclusion does apply to the subject sites. Applying these rules, we find that (1) Aetna has shown that there is no genuine issue of material fact refuting that the pollution exclusion is in the policies; and (2) Koppers has failed to show that there is a genuine issue of material fact ...


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