Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COOPER DEV. CO. v. EMPLOYERS INS. OF WAUSAU

April 16, 1991

COOPER DEVELOPMENT COMPANY, Plaintiff,
v.
EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, and TRANSCONTINENTAL INSURANCE COMPANY, Defendants



The opinion of the court was delivered by: CONTI

 SAMUEL CONTI, UNITED STATES DISTRICT JUDGE

 I. Introduction

 Plaintiff Cooper Development Company ("Cooper") moves for partial summary judgment on the "trigger of coverage" for liability insurance policies covering environmental property damage, and on the issue of whether costs incurred in complying with government-compelled environmental cleanup obligations are "damages" within the meaning of defendants' insurance policies. Also, defendant and counterclaimant Employers Insurance of Wausau ("Wausau") moves for leave to file an amended answer adding a counterclaim and additional parties. The court addresses all three motions in this order.

 II. Background

 Wausau has insured Cooper under several comprehensive general liability policies since at least 1983. Transcontinental insured Cooper under an excess commercial umbrella liability policy from July 1, 1982 to June 27, 1985. Cooper acquired a manufacturing facility in Freehold, New Jersey in 1983. Manufacturing operations to produce medical diagnostic products there used various solvents, including trichloroethylene ("TCE"), from approximately 1968 to 1987. The sale of Cooper's Freehold facility in 1986 subjected it to certain requirements under New Jersey's Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6, et seq. ("ECRA"). Soil and groundwater contamination were discovered at the site in 1987, and Cooper notified Wausau of its claim for property damage in May 1990.

 III. Discussion

 A. Summary Judgment Standard

 Summary judgment is proper only when there is no genuine issue of material fact and when, viewing the evidence in the light most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56(c); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985). Once a summary judgment motion is made and properly supported, the adverse party may not rest on the mere allegations of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Myrtle Nell Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 B. Partial Summary Judgment Motions on "Trigger of Coverage" and "Damages "

 To meet its initial burden on a motion for partial summary judgment, Cooper must establish the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In this case, to meet the burden requires that Cooper demonstrate that the contamination is within the basic insuring agreement of the insurance policies. Royal Globe Insurance Co. v. Whitaker, 181 Cal. App. 3d 532, 536, 226 Cal. Rptr. 435 (1986).

 Each of the policies at issue in this case requires for coverage that property damage be caused by an "occurrence" as defined in the policies, and that it be the result of a sudden and accidental discharge of a pollutant. The Wausau policies contain a pollution exclusion stating:

 
This insurance does not apply to . . . property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalies, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere . . .; but this exclusion does not apply if ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.