Indiana Gas. Co., Inc. v. Aetna Cas. & Sur. Co.
| Decision Date | 02 October 1996 |
| Docket Number | No. 1:95-CV-101.,1:95-CV-101. |
| Citation | 946 F.Supp. 627 |
| Parties | INDIANA GAS COMPANY, INC., Richmond Gas Corporation d/b/a Indiana Gas Company, Inc. and Terre Haute Gas Corporation d/b/a Indiana Gas Company, Inc., Plaintiffs, v. AETNA CASUALTY & SURETY COMPANY, Connie Lee Insurance Company, Continental Casualty Company, Continental Insurance Company, Greenwich Insurance Company, Home Insurance Company, Certain Underwriters at Lloyd's, London and Certain London Market Insurance Companies, North River Insurance Company, Ranger Insurance Company, St. Paul Fire & Marine Insurance Company, St. Paul Surplus Lines Insurance Company, and the Travelers Company, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Sherrill W. Colvin, Haller and Colvin, Fort Wayne, IN, Ronald E. Christian, Whitney E. Bakley, Indiana Gas Company, Indianapolis, IN, Edward P. Henneberry, Ezra C. Levine, Peter C. Condron, Howrey and Simon, Washington, DC, Charles H. Samel, Howrey and Simon, Los Angeles, CA, for Indiana Gas Company, Richmond Gas Corporation and Terre Haute Gas Corporation.
J. Frank Kimbrough, Wilks and Kimbrough, Fort Wayne, IN, Scott H. Sirich, Plunkett and Cooney, Detroit, MI, Charles W. Browning, Kenneth C. Newa, Stephen P. Brown, Richard G. Szymczak, Aetna Casualty & Surety Company, Detroit, MI, for Aetna Casualty & Surety Company.
Thomas W. Yoder, Miller Carson Boxberger and Murphy, Fort Wayne, IN, Patrick Cremin, Michael J. Sehr, Audrey S. Hanrahan, Jerome J. Duchowicz, Haskell and Perrin, Chicago, IL, for Continental Casualty Company, Continental Insurance Company and Greenwich Insurance Company.
Roger E. Warin, Evan Anne O'Neill, Harry Lee, John Flyger, James S. Felt, Steptoe and Johnson, Washington, DC, David J. Bloss, Grand Rapids, MI, for Home Insurance Company.
Dennis F. Cantrell, Bingham Summers Welsh and Spilman, Indianapolis, IN, Erik H. Aldeborgh, Boston, MA, for Liberty Mutual Insurance Company.
Michael D. Ramsey, James E. Rocap, Jr., Rocap Witchger and Threlkeld, Indianapolis, IN, Thomas J. Quinn, Stephen Thomas Roberts, Robert J. Keane, Mendes and Mount, New York City, Kandice L. Kilkelly, Rocap Witchger and Threlkeld, Indianapolis, IN, for Certain Underwriters at Lloyd's, London.
William L. Sweet, Jr., Beckman Lawson Sandler Snyder and Federoff, Fort Wayne, IN, Kandice L. Kilkelly, Brian S. Fraser, Arthur S. Greenspan, Kenneth Held, Richards Spears Kibbs and Orbe, New York City, for Certain London Market Insurance Companies.
Kenneth W. Biermacher, Dallas, TX, for North River Insurance Company.
William Anaya, James S. Stickles, Janet A. Kachoyeanos, Johnson and Bell LTD, Chicago, IL, for Ranger Insurance Company.
Mary K. Reeder, Riley Bennett and Egloff, Indianapolis, IN, Kathy P. Waring, Sonia S. Waisman, Luce Forward Hamilton and Scripps, San Diego, CA, for St. Paul Fire & Marine Insurance Company and St. Paul Surplus Lines.
Arthur G. Surguine, Hunt Suedhoff Borror and Eilbacher, Fort Wayne, IN, Karen H. Flax, Robert C. Johnson, Sonnenschein Nath and Rosenthal, Chicago, IL, for the Travelers Indemnity Company.
This matter is before the Court on the "Motion to Dismiss Plaintiff's Claims for Declaratory Judgment as to the Richmond Site for Lack of Jurisdiction" filed July 10, 1996, by defendants St. Paul Fire & Marine Insurance Company, St. Paul Surplus Lines Insurance Company, Ranger Insurance Company, those London Market insurers severally subscribing to policies of excess insurance in favor or Richmond Gas Corporation, and Home Insurance Company. The thrust of that motion is that there is no case or controversy with respect to claims relating to the Richmond site. That same date, defendants Aetna Casualty & Surety Company, the London Market Insurers and the Home Insurance Company joined in that motion to dismiss contending that the same arguments applied with respect to the manufactured gas plants at Bedford, Greencastle, Huntington, Marion, Seymour and Terre Haute. Plaintiffs responded to the motion to dismiss for lack of jurisdiction on July 10, 1996 to which a reply was filed on August 9, 1996. For the following reasons, the motion to dismiss will be granted.
For present purposes, the relevant facts, construed in plaintiffs' favor, may be summarized briefly as follows: This litigation has as its origin a federal lawsuit that was filed by Indiana Cities Water Corporation. In that case, an amended complaint was filed to add Indiana Gas and PSI Energy, Inc. The amended complaint alleged contamination and the threat of contamination in the shallow and deep aquifers at the point of raw water collection at a site in Shelbyville, Indiana. Indiana Gas was then joined as a party by the Indiana Department of Environmental Management (IDEM) in an enforcement action relating to the Shelbyville site. Purportedly Indiana Gas timely notified its insurers (some of the defendant insurers in this action) but those insurers failed and refused to indemnify Indiana Gas.
A separate enforcement action was instituted against Indiana Gas by IDEM, this time relating to groundwater contamination at a former manufactured gas plant (MPG) at Lafayette. Indiana Gas defended the enforcement action and conducted remedial activities in compliance with orders issued by IDEM. Once again, after notifying the insurers, the insurers refused to defend the action or indemnify Indiana Gas in accordance with their policies.
Subsequent to those actions, Indiana Gas conducted a preliminary assessment/site investigation at former MGP sites in Marion, Bedford, Greencastle, Huntington, Seymour, Terre Haute and Richmond. Those investigations were completed in March of 1995 revealing contamination at each of the seven sites.1 At least with respect to the Richmond, Terre Haute, Bedford and Greencastle sites, the level of contamination exceeds regulatory standards which could require further response or remediation. In November of 1992, Indiana Gas notified St. Paul, Aetna, Home and the London Market Insurers of the potential loss at the Marion, Bedford, Greencastle, Huntington, Seymour, Terre Haute and Richmond former MGP sites. In that correspondence, Indiana Gas requested that the defendants agree to reimburse Indiana Gas for all costs incurred in connection with the investigation of the MGP sites together with the cost of any remediation of any potential property damage pertaining to the sites. The insurers refused to acknowledge their coverage for these potential costs.
Plaintiffs filed suit in this Court on April 14, 1995. Count I alleges that "[d]efendants have failed to honor their contractual obligation to (1) defend Indiana Gas; (2) pay in full the defense costs and expenses of Indiana Gas; and/or (3) indemnify Indiana Gas for damages and/or expenses and/or its losses and obligations with respect to the claims alleged ..." (complaint ¶¶ 95 & 98) in the Shelbyville and Lafayette actions.2 In Count 2, plaintiffs seek a declaratory judgment that the insurers have failed in their duty to defend and indemnify with respect to not only the Shelbyville and Lafayette sites but also the Bedford, Greencastle, Richmond, Huntington, Marion, Seymour, and Terre Haute sites.
At the time of the filing of the complaint, no third party (including the IDEM or the Environmental Protection Agency (EPA)) had made any claim, issued any order, or filed any action against Indiana Gas regarding the Bedford, Greencastle, Huntington, Marion, Seymour, Terre Haute or Richmond MGPs. Nor had any claim or administrative orders been threatened regarding any of these seven sites.
As indicated at the outset, St. Paul and others have filed a motion to dismiss the declaratory judgment claim as it relates to the Richmond site because this Court lacks subject matter jurisdiction. In its joinder of that motion, Aetna and others contend the same with respect to the Bedford, Greencastle, Huntington, Marion, Seymour and Terre Haute sites. Because this court is of the view that there is no case or controversy with respect to those sites, the motion to dismiss will be granted.
"`The judicial power does not extend to abstract questions.'" Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 242, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1952) (quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 324, 56 S.Ct. 466, 472, 80 L.Ed. 688 (1936)). Rather, federal courts can only resolve actual "cases" and "controversies." U.S. Const. art. III, § 2. The existence of a case or controversy is a prerequisite to all federal actions, including those for injunctive and declaratory relief. Skelly Oil Co. v. Phillips Petroleum, 339 U.S. 667, 671-72, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950). Consonant with Article III, the Declaratory Judgment Act provides that "[i]n a case of actual controversy within its jurisdiction ... any Court in the United States, upon the filing of an appropriate pleading may declare the rights and other legal relations of any interested party seeking such a declaration." 28 U.S.C. § 2201(a).
"[A] justiciable controversy is ... distinguished from a difference or dispute of a hypothetical or abstract character; [or] from one that is academic or moot." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). "The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests." Id. To determine whether there is a "controversy," the court must "look to the state of affairs as of the filing of the complaint; a justiciable controversy must have existed at that time." International Harvester v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir.1980).
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