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KOPPERS CO. v. CERTAIN UNDERWRITERS AT LLOYD'S

February 23, 1998

KOPPERS COMPANY, INC., by its successor, BEAZER EAST, INC., Plaintiff,
v.
CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, and CERTAIN LONDON MARKET INSURANCE COMPANIES, Defendants.



The opinion of the court was delivered by: COHILL

 COHILL, D.J.

 Before this Court is a motion for partial summary judgment and for a protective order (Doc. 1210), filed by the plaintiff in the above-captioned case. In addition to the briefs and supporting documents filed by both parties, we have had the benefit of oral argument. For the reasons set forth below, we will grant this motion in part and deny it in part.

 I. Background

 The motion before us addresses Phase II of the lengthy litigation between plaintiff Koppers Company, Inc. ("Koppers") and its excess liability insurer, certain underwriters at Lloyd's, London and certain London Market insurance companies (collectively, the "London Insurers"). The background of this litigation has been detailed elsewhere, *fn1" and only the facts relevant to the motion before us are reiterated here.

 The following facts are not in dispute. Koppers filed claims against a number of its primary and excess insurance carriers, for cleanup and response costs incurred at over one hundred plant sites and disposal sites throughout the country. The complaint alleges breach of contract, and seeks a declaratory judgment to cover future cleanup costs. The parties agreed that this litigation should proceed in phases, and selected the policies covering eighteen focus sites for trial in Phase I. Shortly before trial, Koppers reached a settlement with all of the defendant insurers except for the London Insurers. Thus, the trial was limited to twelve specific policies which provided multiple layers of occurrence-based, excess liability coverage for third-party property damage. The policies in Phase I were issued between late 1953 and January, 1960.

 Phase I was tried to a jury in April and May of 1995. That trial was limited to determining liability and damages for cleanup and response costs incurred at the focus sites through the end of 1993, and to deciding whether Koppers was entitled to a declaratory judgment for the period after 1993. Following a three-week trial, the jury returned a verdict for the plaintiffs. By special verdict, the jury found that (1) an "occurrence" had triggered coverage under the policies at issue at each location, with the exception of three of the five policy periods for the "Kelly Farm" site; and (2) that Koppers had neither expected nor intended to cause damage to third-party property at any of these sites. The jury further found that Koppers had incurred approximately $ 70 million dollars in costs for third-party property damage at the eighteen focus sites through the end of 1993. On post-trial motion, the judgment was reduced to about $ 66 million dollars. We granted a declaratory judgment for indemnification against further response costs under the twelve policies at the eighteen focus sites.

 The London Insurers appealed the judgment on four grounds, and Koppers cross-appealed on the amount of pre-judgment interest. The Court of Appeals for the Third Circuit found reversible error on one of defendants' issues, and remanded with instructions to further reduce the judgment to account for the settling insurers' apportioned shares of the verdict. Koppers Co., Inc. v. Aetna Cas, and Sur. Co., 98 F.3d 1440 (3d Cir. 1996). *fn2" Molding the verdict has proved to be a protracted process, and one which will result in the judgment being further reduced by over $ 20 million dollars.

 Phase II of this litigation is proceeding toward trial, with discovery again under the able oversight of Magistrate Judge Mitchell. The parties have agreed to stay discovery on Phase II pending disposition of this motion for partial summary judgment.

 Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file fail to demonstrate a genuine issue of material fact so that the moving party is therefore entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party must then go beyond the pleadings and, by affidavits, depositions, answers to interrogatories, and admissions on file, designate facts showing that a genuine issue of material fact remains for trial. Id. at 324. The nonmoving party must establish the existence of every element necessary to its case, on which it bears the burden of proof. Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir. 1988). "Facts that could alter the outcome are 'material', and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995).

 In reviewing the record on a motion for summary judgment, the evidence of the nonmovant must be believed, and the court must give the nonmoving party the benefit of all reasonable inferences. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, 515 U.S. 1159, 115 S. Ct. 2611, 132 L. Ed. 2d 854 (1995).

 III. Discussion

 Koppers' motion raises two grounds for summary judgment: the doctrines of judicial estoppel and law of the case. We will ...


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