Aetna Casualty & Surety Company v. Goodyear Tire & Rubber Company

Decision Date20 September 2000
Docket NumberC.A. NO. 19121
PartiesTHE AETNA CASUALTY & SURETY COMPANY, ET AL. APPELLEES v. THE GOODYEAR TIRE & RUBBER COMPANY, ET AL. APPELLANTS
CourtOhio Court of Appeals

[1]

[2]

THE AETNA CASUALTY & SURETY COMPANY, ET AL. APPELLEES

v.

THE GOODYEAR TIRE & RUBBER COMPANY, ET AL. APPELLANTS

[3]

C.A. NO. 19121

[4]

STATE OF OHIO IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT

[5]

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE NO. CV 93 09 3226

[6]

September 20, 2000

[7] Appearances Paul A. Rose, Attorney at Law, Brouse McDOWELL, 500 First National Tower, Akron, Ohio 44308, for Appellant/Cross-Appellee Carl Stich, Attorney at Law, Dinsmore & Shohl, 1900 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202, for Appellee/Cross-Appellant. Robert D. Archibald, Attorney at Law, McNEAL, Schick, Archibald & Biro 123 W. Prospect Ave., Suite 250, Cleveland, Ohio 44115, for Appellee. Lawrence Bach, Attorney at Law, Roderick, Myers & Linton, 1500 One Cascade Plaza, Akron, Ohio 44308, for Appellee. Michael Balch, Attorney at Law, Skadden, Arps, 4 Times Square, New York New York, 10036, for Appellee. Jonathan F. Bank, Attorney at Law, Chadbourne & Parke, 601 South Figueroa Street, Suite 1600, Los Angeles, California, 90017, for Appellee. James W. Barnhouse, Attorney at Law, Buckley, King & Bluso, 600 Superior Avenue, 1400 Bank One Center, Cleveland, Ohio 44114-2652, for Appellee. Dennis Bartek, Attorney at Law, 2300 East Market Street, Suite E, Akron Ohio 44312, for Appellee. Andrew Butz, Attorney at Law, Gilberg & Kiernan, 1250 I Street, N.W., Washington, D.C. 20005, for Appellee. William Cohn, Attorney at Law, 120 North LaSalle Street, Suite 3700, Chicago, Illinois, 60602, for Appellee. Kenneth Coleman, Attorney at Law, Chadbourne & Parke, Llp, 30 Rockefeller Plaza, New York, New York, 10112, for Appellee. Gregory DeGULIS, Attorney at Law, McMAHON, DeGULIS, Hoffman & Blumenthal, 812 Huron Road, East, Suite 650, Cleveland, Ohio, 44115, for Appellee. Eileen B. Eglin, Attorney at Law, Traub, Eglin, Lieberman & Strauss, Mid-Westchester Executive Park, Three Skyline Drive, Hawthorne, New York, 10532, for Appellee. Maria Enriquez, Attorney at Law, Bates, Meckler, Bulger & Tilson, 8300 Sears Tower, 233 S. Wacker Drive, Chicago, Illinois, 60606, for Appellee. Steven Forbes, Attorney at Law, Janik & Forbes, 8223 Brecksville Road, Building 2, Cleveland, Ohio, 44141-1371, for Appellee. Michael Gregg, Attorney at Law, Merlo, Kanofsky & Brinkmeier, 208 S. LaSalle Street, Suite 950, Chicago, Illinois, 60604, for Appellee. Thomas Hardin, Attorney at Law, Hardin & Schafner, Lpa, 132 Fair Avenue, Nw, New Philadelphia, Ohio 44663, for Appellee. Anthony J. Hartman, Attorney at Law, Hermann, Cahn & Schneider, 1301 East Ninth Street, Suite 500, Cleveland, Ohio 44114-1876, for Appellee. William Holland & Nancy Holland Myers, Attorneys at Law, Holland & Myers, 159 South Main Street, Suite 825, Akron, Ohio, 44308, for Appellee. Charles Jarrett, Attorney at Law, Baker & Hostetler, 1900 East Ninth Street, 3200 National City Center, Cleveland, Ohio 44114-3485, for Appellee. Thomas B. Keegan, Attorney at Law, Robins, Kaplan, Miller & Ciresi, 55 West Wacker Drive, Chicago, Illinois, 60601-1701, for Appellee. David C. Lamb, Attorney at Law, Weston, Hurd, Fallon, Paisley & Howley, 2500 Terminal Tower, Cleveland, Ohio 44113-2241, for Appellee. Kimball Ann Lane, Attorney at Law, Luce, Forward, Hamilton & Scripps, Citicorp Center, 153 East 53rd Street, 26th Floor, New York, New York, 10022, for Appellee. David Lester, Attorney at Law, Ulmer & Berne, 1300 East Ninth Street, Suite 900, Cleveland, Ohio 44114-1583, for Appellee. James F. Matthews, Attorney at Law, Baker, Dublikar, Beck, Wiley & Griffin, 205 Mellet Building, 115 DeWalt Avenue, Nw, Canton, Ohio, 44702, for Appellee. Ignatius John Melito, Attorney at Law, Melito & Adolfsen, PC, 233 Broadway, New York, New York, 10279, for Appellee. Michael Morrison, Attorney at Law, Tressler, Soderstrom, Maloney & Priess, 233 South Wacker Drive, 22nd Floor, Chicago, Illinois, 60606, for Appellee. Margaret J. Orbon, Attorney at Law, Clausen Miller P.C., 10 South LaSalle Street, Chicago, Illinois, 60603-1098, for Appellee. Walter A. Rodgers, Attorney at Law, Rodgers & Co., Lpa, 1750 Guild Hall, Landmark Office Towers, 45 Prospect Ave, West, Cleveland, Ohio 44115, for Appellee. Kathleen M. Sasala, Attorney at Law, Wuliger, Fadel & Beyer, 1340 Sumner Court, Cleveland, Ohio 44115, for Appellee. Daniel Schlessinger, Attorney at Law, Lord, Bissell & Brook, 115 South LaSalle Street, Chicago, Illinois 60603, for Appellee. A. Hugh Scott, Attorney at Law, Choate, Hall & Stewart, Exchange Place, 53 State Street, Boston, Massachusetts, 02109-2891, for Appellee. Michael Suffern, Attorney at Law, Dinsmore & Shohl, 1900 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202, for Appellee. Jonathan VINER, Attorney at Law, Bollinger, Ruberry & Garvey, 500 West Madison, Suite 2300, Chicago, Illinois, 60661, for Appellee. Howard C. Walker, Jr., Attorney at Law, Roderick, Myers & Linton, One Cascade Plaza, 15th Floor, Akron, Ohio, 44308, for Appellee. Michael Willison, Attorney at Law, German, Gallagher & Murtagh, The Bellevue, Fifth Floor, 200 South Broad Street, Philadelphia, Pennsylvania, 19102, for Appellee. Frank E. Quirk, Paul A. Rose, Keven Drummond Eiber, Thomas R. Crookes, and H. Alan Rothenbuecher, Attorneys at Law, 500 First National Tower, Akron, Ohio 44308-1471, for Appellants. [8] The opinion of the court was delivered by: Carr, Judge [9] DECISION AND JOURNAL ENTRY [10] This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: [11] Appellant, Goodyear Tire & Rubber Company ("Goodyear"), appeals from a judgment of the Summit County Court of Common Pleas on some of its claims for declaratory judgment against several insurance carriers from which it sought defense and indemnity coverage. Summary judgment was granted to several defendants; others were granted directed verdicts. This Court affirms in part and reverses in part. [12] On September 29, 1993, Goodyear brought this action against more than fifty insurance companies based on comprehensive general liability ("CGL") insurance policies it held from 1949 through the middle of 1985. Goodyear sought, among other things, a declaration that these defendants had the duty to defend and/or indemnify it against environmental clean-up actions brought under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). The CERCLA actions stemmed from environmental contamination caused by the waste disposal practices of Goodyear and some of its subsidiaries at numerous disposal sites around the country. [13] During the next several years, lengthy discovery ensued and numerous pretrial motions were filed and ruled upon, one of which was affirmed on appeal to this Court in Goodyear Tire & Rubber Co. v. Aetna Casualty and Surety Co. (July 12, 1995), Summit App. No. 16993, unreported. Numerous claims, defendants, and specific insurance policies were disposed of through pretrial motions. Although Goodyear sought defense and indemnity coverage for its liability at several disposal sites, the parties agreed to limit the evidence at the first trial to two of the disposal sites: the Army Creek Landfill in New Castle, Delaware and the Motor Wheel disposal site (also known as the Lake Lansing Road disposal site) in Lansing, Michigan. Goodyear's liability at each of these sites stemmed from the disposal practices of Motor Wheel Corporation, a former subsidiary of Goodyear. [14] Motor Wheel Corporation [15] Goodyear purchased Motor Wheel Corporation of Michigan ("Motor Wheel") in January 1964, and continued to operate the business until 1981 as a newly formed Ohio corporation. Motor Wheel manufactured automotive wheels, tailpipes, tubing, and brake parts at one plant in Newark, Delaware and at three plants in Lansing, Michigan. [16] Motor Wheel Disposal Site [17] The Motor Wheel disposal site was located less than a mile from one of Motor Wheel's plants in Lansing, Michigan. Motor Wheel purchased the site in 1938 and disposed of plant wastes there until the late 1970s. Materials were hauled to the site in trucks and dumped onto the ground or into ponds. Among the wastes disposed there during the 1940s, and maybe longer,*fn1 was a vapor degreaser solvent, trichlorethylene ("TCE"), that Motor Wheel used to clean grease and oil from machine parts. It was commonly believed at that time that the TCE would evaporate. It was discovered years later, however, that TCE could degrade into vinyl chloride, a known carcinogen, and that it could seep into the groundwater. [18] The Motor Wheel site became the target of investigations by the Michigan Department of Natural Resources during the 1970s. Investigations by the United States Environmental Protection Agency ("EPA") began in the early 1980s, shortly after the passage of CERCLA. Motor Wheel admitted to the EPA in 1981 that it had disposed of a variety of wastes at the site. It was eventually determined that approximately twenty companies, including Motor Wheel, had dumped wastes there. The primary polluters, however, were the Motor Wheel plant and a fertilizer plant owned by W.R. Grace Company. Goodyear's liability for the clean up of the site stemmed from its disposal of TCE. On June 26, 1987, Goodyear entered into a negotiated settlement with W.R. Grace Company and the EPA. At the time of trial, Goodyear had spent $11,612,900 for investigation and clean-up costs and the clean up was not yet complete. Goodyear was seeking insurance coverage for these costs, some of which dated back to the late 1970s, as well as for future costs that it would incur to complete the remediation of the Motor Wheel site. [19] Army Creek Landfill [20] During the 1960s, employees of Motor Wheel's Newark, Delaware plant disposed of the general plant trash, including pallets and office and cafeteria trash, in a dumpster outside the plant. Plant employees would also pour ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT