The opinion of the court was delivered by: CONABOY
For the reasons which follow, we will deny Defendant Wausau's motion for summary judgment on both the pollution exclusion clause and the doctrine of known loss.
On June 25, 1993, this Court held that the loss suffered by Plaintiff Gould, the corporate successor to the contaminated Marjol Battery site, may fall within the insured risk covered by the personal injury endorsement set forth in Gould's National Union Insurance Policy. Gould Inc. v. Arkwright Mutual Insurance Co., 829 F. Supp. 722 (M.D.Pa. 1993). We noted that absent an additional specific exclusion to a personal injury endorsement that was added to the policy, coverage may lie.
As we have stated in our previous opinions, if an insurance policy, when viewed as a whole, is reasonably susceptible to more than one interpretation, it is considered ambiguous and any legitimate ambiguity must be resolved against the insurer. When this Court originally assessed the National Union policy and its provisions, we stated that it was our responsibility to give effect to the whole policy not just one part of it. We expressed a desire to give reasonable meaning to all of the contract's provisions and to avoid rendering some provisions useless or inexplicable.
Summary Judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Federal Rule of Civil Procedure 56(c).
The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing... that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Issues of fact are "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3rd Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3rd Cir. 1988).