The opinion of the court was delivered by: EDWARD N. CAHN
This litigation was commenced by an insurance company seeking a declaratory judgment that it is not obligated to provide insurance coverage for the remediation of environmental damage which was caused, in part, by its insureds. The insureds have responded with several counterclaims. Numerous motions are currently before the court. Jurisdiction is proper pursuant to 28 U.S.C. § 1332.
Continental Casualty Company ("Continental") and Transportation Insurance Company ("Transportation") (collectively, the "plaintiffs") are Illinois corporations having their principal places of business in Chicago, Illinois. Diversified Industries, Inc. ("Diversified"), is a Delaware corporation having its principal place of business in St. Louis, Missouri. Diversified and its subsidiaries held a "Comprehensive General Liability" insurance policy ("CGL policy") with plaintiffs from 1968 until October 31, 1991.
During the period of coverage, Eastern Diversified Metals Corporation ("EDM"), one of Diversified's subsidiaries, operated a metal reclamation facility in Schuylkill County, Pennsylvania (the "Site"). At the Site, EDM reclaimed copper and aluminum from telecommunication cables and wires. The reclamation process involved mechanically stripping and separating the plastic insulation surrounding the wire. EDM stored the excess insulation material, known as "plastic fluff," on an adjacent piece of land. It was later discovered that this excess material contained contaminants.
In 1977, EDM sold the Site to Theodore Sall, Inc. ("Sall"), another subsidiary of Diversified. In March of 1987, the Environmental Protection Agency ("EPA") notified Sall and over 170 other businesses that they were Potentially Responsible Parties ("PRP's") under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et. seq.. As such, they would be responsible for the clean-up costs associated with the hazardous material collected at the Site between approximately 1968 and 1977. Diversified informed plaintiffs of the EPA's claim and demanded that plaintiffs both defend against the EPA's claim and reimburse Diversified for any expenditures associated with cleaning up the Site.
In November 1991, plaintiffs filed this declaratory judgment action against Diversified. Plaintiffs sought a determination of whether they were obligated to indemnify Diversified for costs incurred in cleaning-up the Site. The court has been notified that the cost of the clean-up could exceed $ 300 million.
After the stay was lifted, the plaintiffs moved to amend their complaint to include Sall and AT&T Nassau Metal Corporation ("AT&T") as parties to the action. Plaintiffs sought to add Sall because, like Diversified, Sall was a named insured under the CGL policies. Therefore, plaintiffs asserted that the issues raised by their denial of liability with respect to Diversified were the same as for Sall. Plaintiffs sought to add AT&T because AT&T was a major supplier to the Site during the relevant times, and had been notified by the EPA that it was a PRP. After incurring costs in responding to the EPA's action, AT&T sued Sall for, inter alia, contribution. See AT&T Nassau Metal Corp. v. Fixman & Sall, Civil Action No. 93-001601 (E.D. Mo. 1993) (the "Missouri Case"). Therefore, plaintiffs argued that, depending upon the outcome of this litigation, they could be required to defend and indemnify Sall against AT&T's claims. The court granted plaintiffs leave to amend their complaint. On March 23, 1994, plaintiffs filed their Amended Complaint against Diversified, Sall, and AT&T.
Diversified and its subsidiaries then entered into a settlement with AT&T which contained both an assignment (the "Assignment") and an agreement (the "Agreement"). The Assignment provided, in part, that AT&T would be assigned Diversified's potential right of recovery against the plaintiffs and would be given the power to prosecute this litigation. The Agreement stated that the parties would enter a Consent Decree to settle the Missouri Case. The Consent Decree provided that Diversified, Sall, EDM (now known as "Scullin"), and United Refining and Smelting Company ("United"), another Diversified subsidiary, were liable for "damages, expenses, and remediation and removal costs" arising from their status as PRP's for the EDM Site. In addition, the Consent Decree stated that:
(i) as between [Sall], Diversified, and Scullin and AT&T . . ., that [Sall], Diversified, and Scullin are jointly and severally liable for 90% of the above-described liability at the [EDM Site]; and (ii) as between United and AT&T . . ., United is liable for a de minimis portion of the above-described liability at the [EDM Site].
Although the plaintiffs objected to the Agreement, the Bankruptcy Court overseeing Diversified's Chapter 11 proceeding approved it.
On October 10, 1994, Diversified, Sall, and AT&T (the "defendants" or "counterclaim plaintiffs") answered the plaintiffs' amended complaint, asserting various affirmative defenses. In addition, the defendants alleged various counterclaims against the plaintiffs and other entities related to the plaintiffs. Specifically, defendants counterclaimed against Continental, Transportation, Transcontinental Insurance Company ("Transcontinental"), Continental National Association a/k/a CNA Insurance Companies ("CNA Insurance"), and CNA Financial Corporation ("CNA Financial") (collectively "counterclaim defendants" or the "CNA Companies"). The defendants' counterclaims sound in breach of contract, misrepresentation under the Illinois Consumer Fraud and Deceptive Practices Act, violation of the Illinois Consumer Fraud and Deceptive Practices Act, negligent provision of loss control services, conspiracy to misrepresent or conceal facts, and bad faith.
II. Defendants' Motion to Reconsider
On August 19, 1994, this court denied defendants' motion to dismiss this case based upon the plaintiffs' alleged failure to join indispensable parties to this litigation. Defendants have moved this court to reconsider its ruling. The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or to present newly-discovered evidence." Harsco Corporation v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly. Rottmund v. Continental Assurance Company, 813 F. Supp. 1104, 1107 (E.D. Pa. 1992).
Defendants contend that there are various parties who are indispensable to this litigation pursuant to Federal Rule of Civil Procedure 19. The defendants argue that all parties who have been deemed PRP's based upon their activities at the Site (the "PRP Group") must be joined. In addition, the defendants claim that United and Scullin must be joined in this litigation because they are named insureds under the CGL policies. Defendants conclude that this case must be dismissed because diversity jurisdiction will be lacking once these parties are joined. Because the court finds that neither the PRP Group nor United and Scullin must be joined in this litigation, the court will deny defendants' motion to reconsider and will retain jurisdiction over the case.
Federal Rule of Civil Procedure 19 governs this court's determination of whether the joinder of United, Scullin, and the PRP Group is compulsory.
When making this determination, the "court must first determine whether a party should be joined if 'feasible' under Rule 19(a)." Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 404 (3d Cir. 1993). If the party should be joined but joinder is not feasible because it would destroy diversity, the "court must then determine whether the absent party is 'indispensable' under Rule 19(b)." Id. If the party is indispensable, the action cannot proceed.
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the party's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Federal Rule of Civil Procedure 19(a).
Defendants contend that the PRP Group satisfies Rule 19(a)(2) because the PRP Group may be able to sue the defendants for contribution, and that therefore a ruling in favor of the plaintiffs will irreparably harm the PRP Group. However, even if the defendants' prediction were to come true, the court is not persuaded that such an outcome makes the PRP Group indispensable.
Under Rule 19(a)(2), the "interest relating to the subject of the action" must be more than a mere financial interest. 3A Moore's Federal Practice § 19.07; Micheel v. Haralson, 586 F. Supp. 169, 171 (E.D. Pa. 1983); Cortez v. County of Los Angeles, 96 F.R.D. 427, 429 (C.D. Cal. 1983); Swarovski America Ltd. v. Silver Deer Ltd., 537 F. Supp. 1201, 1206 (D. Colo. 1982). Instead, to satisfy Rule 19(a)(2), an absent party must have a legally protected interest, and not merely an interest of convenience.
The PRP Group is not necessary to the court's determination of whether the plaintiffs must indemnify Diversified and its affiliates for the costs associated with the clean-up of the Site. In addition, the PRP Group has not incurred any significant clean-up costs for the site, and there is no evidence that any such costs are imminent.
Therefore, the possibility of a contribution action by the PRP Group against the defendants appears remote. However, even if it were likely that a future contribution action would be brought by the PRP Group, the court would nevertheless conclude that the PRP Group's interest in this litigation is not the kind of legally protected interest contemplated by Rule 19(a)(2). The PRP Group does not have any common law or other right to coverage under the CGL policies. Instead, this litigation might merely effect the amount of money which the PRP Group might be able to recover from the defendants from such a contribution suit. This purely financial interest is insufficient. The PRP Group fails to satisfy Rule 19(a), and, accordingly, the PRP Group need not be joined.
This conclusion comports with relevant precedent. For instance, in Scott Paper Company v. National Casualty Company, 151 F.R.D. 577 (E.D. Pa. 1993), an individual sued the Scott Paper Company in state court after slipping and falling on Scott's land. Scott then filed a declaratory judgment action in federal court against its insurer, National Casualty, seeking an adjudication that National Casualty was obligated to defend and indemnify Scott in the state court action. National Casualty moved to dismiss based upon Scott's failure to join the injured claimant in the suit. National Casualty argued that the claimant was necessary because "the result of [the] dispute may have a substantial impact on [the individual claimant's] potential recovery from Scott Paper". Id. at 579. The court denied the motion, holding that the claimant's interest was insufficient to make him indispensable to the court's determination of whether National Casualty had a duty to defend and indemnify Scott. Id.
Defendants argue that United and Scullin are indispensable to this litigation because they are named insureds under the CGL Policies. Defendants contend that a ruling in favor of the plaintiffs will prejudice United and Scullin, and that therefore these parties must be joined. Because the court finds United's and Scullin's interests in the present litigation to be more theoretical than real, however, the court disagrees.
Rule 19(a)(2) directs courts to consider the practical consequences that an action may have on an absent party. With this in mind, the court easily concludes that the present action will have very little effect on United or Scullin. This is because their rights to pursue coverage from the plaintiffs have been assigned to AT&T.
Therefore, even if plaintiffs prevail in this litigation, the practical effect on United and Scullin would be minimal.
United's and Scullin's interests in this litigation are being fully represented by AT&T. This fact distinguishes the present case from Pennsylvania Insurance Guaranty Association v. Schreffler, 360 Pa. Super. 319, 520 A.2d 477 (Pa. Super. 1987).
In Schreffler, an insurer brought a declaratory judgment action against one of its insured's claimants, Schreffler. The court ruled that the insured, Keenan's Tavern, was an indispensable party. The court explained that the divergent interests between the insurer and Keenan's Tavern made Keenan's Tavern indispensable. The court stated:
In its request for declaratory relief, [the insurer] asked the trial court to interpret the . . . insurance policy with respect to the coverage available for [Schreffler's] suit against Keenan's Tavern. Clearly, Keenan's Tavern had an interest in seeing that the court construed its insurance policy as providing the maximum amount of coverage for any judgment entered against it in the Schreffler action. Keenan's Tavern also had an interest in ensuring that [the insurer] performed its obligations to defend Keenan's Tavern in the Schreffler action. Obviously, these interests have not been presented by [the insurer], who contended below and contends on appeal that no coverage is available under the Policy.
Unlike the insured in Schreffler, United's and Scullin's interests are being fully represented by AT&T. AT&T has been assigned United and Scullin's rights under plaintiffs' insurance policies, and has every incentive to vigorously pursue these rights.
This court's conclusion is consistent with the case relied upon most heavily by the defendants. In Travelers Indemnity Company v. Dingwell, 691 F. Supp. 503 (D. Me. 1988), aff'd, 884 F.2d 629 (1st Cir. 1989), a landfill owner assigned his right to insurance proceeds to a group of polluters (the "Group") who had already paid for most of the mandated environmental cleanup at the landfill. In return for the assignment, the Group agreed to drop its claim for contribution against the owner and seek satisfaction of the owner's obligations solely from the insurance proceeds. In determining that the Group was indispensable to the declaratory judgment action brought by the insurer against the owner, the court stated:
[The owner's] interest is now negligible, since he has assigned the right to the proceeds to the Group, and, under the agreement, will not be pursued for any recovery out of his personal assets.
III. Counterclaim Defendants' Motions to Dismiss AT&T's Counterclaims
The counterclaim defendants have offered several reasons why this court should dismiss AT&T's various counterclaims.
In deciding the counterclaim defendants' motions, the court will accept all facts alleged by AT&T as true, and will grant the counterclaim defendants' motions only if AT&T could prove no set of facts entitling it to relief. Malia v. General Electric Company, 23 F.3d 828, 830 (3d Cir. 1994); Ala, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). The various arguments offered by the counterclaim defendants will be addressed seriatim.
A. Validity of the Assignment
Counterclaim defendants contend that language found within some of the CGL Policies (the "non-assignment clauses") precluded Diversified from assigning its rights under the CGL Policies to AT&T without the consent of the CNA Companies.
Typical of the various non-assignment clauses is the following:
Assignment. Assignment of the interest under this policy, shall not bind the company until its consent is endorsed thereon. . . .
See, Amended Complaint for Declaratory Judgment, Exhibit M, Page 5 of Commercial Umbrella Liability Policy, § 16. However, because Pennsylvania law favors assignments of the sort contemplated by Diversified and AT&T, the court holds that the Assignment is valid.
Generally, non-assignment clauses are included in insurance policies for the protection of insurers. Such clauses are designed to guarantee that an increase of the risk of loss by a change of the policy's ownership cannot occur without the consent of the insurer. See Couch Cyclopedia of Insurance Law 2d, Volume 16, § 63:31. Because non-assignment clauses limit the amount of risk that the insurer may be forced to accept, courts will generally strike down an insured's attempt to assign its policy to a new insured. See, e.g., Carle Place Plaza Corporation v. Excelsior Insurance Company, 144 A.D.2d 517, 534 N.Y.S.2d 397 (N.Y.App. Div. 1988). Consistent with the general purposes of non-assignment clauses, however, courts are reluctant to restrict the assignment of an insured's right to payment which has already accrued. See, e.g., Santiago v. Safeway Insurance Company, 196 Ga. App. 480, 396 S.E.2d 506 (Ga. Ct. App. 1990); National Memorial Services, Inc. v. Metropolitan Life Insurance Company, 355 Pa. 155, 49 A.2d 382 (Pa. 1946). Therefore, because an insured's right to proceeds vests at the time of the loss giving rise to the insurer's liability, restrictions on an insured's right to assign its proceeds are generally rendered void.
In National Memorial Services, the Pennsylvania Supreme Court was confronted with a situation analogous to the one at bar. There, the beneficiaries of a life insurance policy assigned their proceeds from the policy to another individual. This individual subsequently assigned the proceeds to National Memorial Services. The insurer refused to pay National Memorial based upon the following language contained in the policy:
Assignability -- This Policy may be assigned to any national bank, state bank, or trust company, but any assignment or pledge of this Policy or of any of its benefits to an assignee other than one of the foregoing shall be void.
The court rejected the insurer's argument. Although the court stated that it could "understand why an insurer would limit the right of an insured to assign his interests in a policy," it found "no sound reason for the insurance company to forbid or limit an assignment by a beneficiary of the amount due him or her after the death of ...