709 F.Supp. 958 (D.Idaho 1989), Civ. 87-3043, Aetna Cas. & Sur. Co. v. Gulf Resources & Chemical Corp.

Docket Nº:Civ. 87-3043
Citation:709 F.Supp. 958
Party Name:Aetna Cas. & Sur. Co. v. Gulf Resources & Chemical Corp.
Case Date:March 31, 1989
Court:United States District Courts, 9th Circuit, District of Idaho

Page 958

709 F.Supp. 958 (D.Idaho 1989)

AETNA CASUALTY & SURETY COMPANY, a Connecticut corporation, Plaintiff,


GULF RESOURCES & CHEMICAL CORPORATION, a Delaware corporation; the Bunker Hill Company, an Idaho corporation; Pintlar Corporation, a Delaware corporation, Defendants.

CONTINENTAL RE-INSURANCE CORPORATION, a California corporation; Pacific Insurance Company, a California corporation; Fidelity & Casualty Company of New York, a New York corporation, Plaintiffs,


GULF RESOURCES & CHEMICAL CORPORATION, a Delaware corporation; and Pintlar Corporation, a Delaware corporation, Defendants.

Civ. Nos. 87-3043, 87-3082.

United States District Court, D. Idaho.

March 31, 1989

Page 959

R.B. Kading, Jr., Warren E. Jones, Scott D. Hess, Eberle, Berlin, Kading, Turnbow & Gillespie, Chartered, Boise, Idaho, for Aetna Cas. & Sur. Co.

Robert T. Wetherell, Quane Smith Howard & Hull, Boise, Idaho, for Continental Re-Insurance Corp.

Stephen W. Greiner, Richard Mancino, Willkie, Farr & Gallagher, New York City, Fred M. Gibler, Evans, Keane, Koontz, Boyd, Simko & Ripley, Kellogg, Idaho, for Gulf Resources & Chemical Corp. and Pintlar Corp.


RYAN, Chief Judge.


On October 18, 1984, the Environmental Protection Agency (EPA) formally notified Defendant Gulf Resources & Chemical Corporation (Gulf) that Gulf had been tentatively identified as a "potential responsible party" (PRP) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq. Because of this, Gulf became subject to a claim by the EPA that Gulf was responsible for the costs of cleaning up the Bunker Hill site. 1

On January 8, 1985, Plaintiff Aetna Casualty & Surety Company (Aetna) was sent a letter from Gulf advising Aetna of the notice from EPA. On January 14, 1985, William Boyd, one of Gulf's attorneys in this matter, sent a letter to Aetna tendering the defense of EPA's claim to Aetna. Gulf and Defendant Pintlar Corporation (Pintlar) have also tendered defense of the EPA claim to Plaintiffs Continental Re-Insurance Corporation, Pacific Insurance Company, and Fidelity & Casualty Company of New York (collectively known as the Continental Group).

In two separate actions, one by Aetna and the other by the Continental Group, the plaintiff insurers seek declarations that they owe no duties of defense or indemnification to defendants.

Aetna issued five policies of "comprehensive general liability" (CGL) insurance naming Gulf as the insured party. The effective dates of these policies cover the period from November 1, 1967, to April 15, 1972. The Continental Group plaintiffs issued seven CGL policies covering the period from January 1, 1972, to April 15, 1978.

Currently before the court are motions for summary judgment brought by plaintiffs in both cases. Because of the similarity of the issues involved, the motions were consolidated for hearing.


A. Motions for Summary Judgment

While Aetna's motion raises several issues, the only issue raised by the Continental

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Group is that of coverage for response costs, discussed in subsection 2(a), below. However, when there are no genuine issues of material fact, the court may grant summary judgment where appropriate, even if the grounds for granting it differ from those urged by the movant. 10A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, § 2725 (1983). The only limitation here is that the court must use caution to insure that the non-moving party is not unfairly surprised by the court's reliance on grounds other than those urged by the movant. Id. During the oral argument on these motions, the parties fully discussed the application of Aetna's arguments to the Continental Group policies. Because the facts relevant to these motions are uncontroverted, and the facts are substantially the same as to both Aetna and the Continental Group, if entry of summary judgment as to one is appropriate, it is appropriate as to both. Under liability...

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