Argonaut Ins. Co. v. Occidental Petroleum Corp.

• Decision Date: 28 July 1980
• Citation: 430 N.Y.S.2d 982,106 Misc.2d 5
• Court: New York Supreme Court
• Parties: ARGONAUT INSURANCE COMPANY, Plaintiff, v. OCCIDENTAL PETROLEUM CORPORATION, Hooker Chemicals & Plastic Corp., and Occidental Petroleum International, Inc., Defendants. UNIGARD MUTUAL INSURANCE COMPANY, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP., and Occidental Petroleum International, Inc., Defendants. INTERNATIONAL SURPLUS LINES INSURANCE COMPANY, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP., and Occidental Petroleum International, Inc., Defendants. CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP., a New York Corporation, Defendant. HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP. et al., Defendants. The HOME INSURANCE COMPANY and the City Insurance Company, Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORP., Occidental Petroleum Corporation, Occidental Petroleum International, Inc., Hartford Accident & Indemnity Company, et al., Defendants.

Page 982

430 N.Y.S.2d 982

106 Misc.2d 5

ARGONAUT INSURANCE COMPANY, Plaintiff, v. OCCIDENTAL PETROLEUM CORPORATION, Hooker Chemicals & Plastic

Corp., and Occidental Petroleum International,

Inc., Defendants.

UNIGARD MUTUAL INSURANCE COMPANY, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP., and Occidental Petroleum

International, Inc., Defendants.

INTERNATIONAL SURPLUS LINES INSURANCE COMPANY, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP., and Occidental Petroleum

International, Inc., Defendants.

CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP., a New York Corporation,

Defendant.

HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff, v. HOOKER CHEMICALS & PLASTICS CORP. et al., Defendants.

The HOME INSURANCE COMPANY and the City Insurance Company, Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORP., Occidental Petroleum

Corporation, Occidental Petroleum International,

Inc., Hartford Accident & Indemnity

Company, et al., Defendants.

Supreme Court, Niagara County.

July 28, 1980.

Donovan, Leisure, Newton & Irvine, New York City (Walter L. Stratton, New York City, of counsel), and Moot, Sprague, Marcy, Landy, Fernbach & Smythe, Buffalo (Richard F. Griffin, Buffalo, of counsel), for Argonaut Ins. Co.

Siff & Newman, New York City (Mark L. Rosen and Stuart I. Parker, New York City, of counsel), and Albrecht, Maguire, Heffern & Gregg, P. C., Buffalo (Charles H. Dougherty, Buffalo, of counsel), for Employers Mut. Cas. Co., Federal Ins. Co., First State Ins. Co., First State Underwriters Agency of New England Reinsurance Corp., Harbor Ins. Co., Intern. Surplus Lines Ins. Co., Midland Ins. Co., North Star Reinsurance Corp., and Unigard Ins. Co.

Brown, Maloney, Gallup, Roach & Busteed, Buffalo (Edmund S. Brown, Jr., Buffalo, of counsel), for Central Nat. Ins. Co. of Omaha.

Smith, Murphy & Schoepperle, Buffalo (Richard K. Schoepperle and Frank G. Godson, Buffalo, of counsel), for Hartford Acc. & Indem. Co.

Townley & Updike, New York City (Philip D. Pakula, New York City, of counsel), for The Home Ins. Co. and The City Ins. Co.

Williams, Williams, Volgenau & Burke, Buffalo (Diane Bosse, Buffalo, of counsel), for The Home Insurance Company and The City Insurance Company.

Brown, Kelly, Turner, Hassett & Leach, Buffalo (Roger A. Olson, Buffalo, of counsel), for Aetna Life & Cas. Co. and The Aetna Cas. & Sur. Co.

Rosen, Yasinow & Roberts, Buffalo (Donald N. Roberts, Buffalo, of counsel), for Aetna Ins. Co.

Brownstein, Canale, Madden & Burke, Buffalo (John J. Madden and Michael F. Perley, Buffalo, of counsel), for Stonewall Ins. Co.

Cohen, Lombardo, Blewett, Fisher, Hite & Spandau, Buffalo (Anthony M. Nosek, Buffalo, of counsel), for AIU Ins. Co., American Home Assur. Co., Granite State Ins. Co., Landmark Ins. Co., and National Security.

Damon, Morey, Sawyer & Moot, Buffalo (Andrew Feldman and Carol C. White, Buffalo, of counsel), and Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Lloyd's London Cert. # 31469, Southern Marine & Aviation Underwriters, Inc.

Mendes & Mount, New York City (John G. McAndrews, New York City, of counsel), and Falk, Siemer, Glick, Tuppen & Maloney, Buffalo (Alvin M. Glick, Buffalo, of counsel), for Lloyd's London Cert. Nos. MMS.

Cox, Barrell, Walsh, Roberts & Grace, Buffalo (John P. Cox, Buffalo, of counsel), for Ins. Co. of North America.

Davis, Polk & Wardwell, New York City (Paul R. Koeff, New York City, of counsel), for California Union Ins. Co., and The Ins. Co. of North America.

Lester, Schwab, Katz & Dwyer, New York City (James J. Harrington, New York City, of counsel), for Fireman's Fund Ins. Co.

Fudeman & Renaldo, Buffalo (William J. Regan, Buffalo, of counsel), for The Continental Ins. Co.

Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo (Daniel M. Darragh, Buffalo, of counsel), for Commercial Union Ins. Co., and Employer's Liability Assur. Corp., Ltd.

Donald T. Mahoney, Batavia, for American Manufacturers Mut. Ins. Co., American Motorists Ins. Co. and Lumberman's Mut. Cas. Co.

Miller, Bouvier, O'Connor & Cegielski, Buffalo (Gerald Bouvier, Buffalo, of counsel), for Northbrook Excess and Surplus Ins. Co.

Orr, Brydges & Orr, Niagara Falls (George Tsakos, Buffalo, of counsel), for Reserve Ins. Co.

O'Shea, Adamson, Reynolds & Napier, Buffalo (Philip J. O'Shea, Buffalo, of counsel), for Continental Cas. Co.

Grossman, Levine & Civiletto, Niagara Falls (Stanley Grossman, Niagara Falls, of counsel), for Peter Urban and other damage plaintiffs.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City (George Berger and Martin Stein, New York City, of counsel), Jaeckle, Fleischmann & Mugel, Buffalo (Manly Fleischmann, Lawrence H. Wagner, Henry W. Killeen, III, and Jean C. Powers, Buffalo, of counsel), for Hooker Chemicals & Plastics Corp., Occidental Petroleum Corp. and Occidental Petroleum Intern., Inc.

Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (William G. Gisel, Buffalo, of counsel), for Hooker Chemicals & Plastics Corp.

Mitchell, Silberberg & Knupp, Los Angeles, Cal. (Edward R. McHale, Los Angeles, Cal., of counsel), Charles E. Foster, Los Angeles, Cal., for Hooker Chemicals & Plastics Corp. and Occidental Petroleum Corp.

MEMORANDUM

JOSEPH P. KUSZYNSKI, Justice.

Defendants Hooker Chemicals & Plastics Corporation ("Hooker") and Occidental Petroleum Corporation ("Occidental"), move pursuant to CPLR 3211 to dismiss these six actions, or in the alternative to stay them in this Court, upon the grounds that an identical action is pending between the same parties in the State of California. Hooker and Occidental also assert that certain persons who should be parties are absent from the litigation and that this Court has no in personam jurisdiction over Occidental.

Defendants had earlier brought a similar motion in the companion case of Argonaut Ins. Co. v. Occidental Petroleum, et al., argued before this Court on May 23, 1980. Counsel for Argonaut was subsequently allowed to file supplemental papers and appear before this Court when the motion concerning the other five actions was argued on June 30, 1980. Leave was extended to all parties to file further memoranda and/or briefs afterwards. The final submission was made on July 18, 1980.

Plaintiff insurance companies in all six (6) cases, seek to have their insurance contracts with Hooker declared void insofar as they apply to the many litigations involving the dumping of chemical wastes at the Love Canal and other sites in Niagara County.

By way of background, in August 1978, a report of the New York State Department of Health declared that the leaching of toxic chemical wastes buried in the Love Canal dump between 97th and 99th Street in the City of Niagara Falls, New York had created a health problem for the area residents. Afterwards, the affected area was geographically enlarged by further such reports so that the "Love Canal site" now includes the city blocks from 93rd to 103rd Street in Niagara Falls, New York, from which the residents have been evacuated. Allegedly, the predecessor companies of Hooker Chemicals & Plastics Corporation had dumped the industrial chemical wastes into the Love Canal excavation commencing in approximately 1940 until 1953, when it deeded the lands to the Board of Education of the City of Niagara Falls.

As early as October, 1978, residents of the Love Canal area served the City of Niagara Falls, the County of Niagara and the Board of Education of the City of Niagara Falls, with Notices of Claim as required under Section 50-e of the General Municipal Law.

Shortly thereafter, on December 21, 1978, Occidental and Hooker began an action in the State Court in and for the County of Los Angeles, in Los Angeles, California against Hartford Insurance Company, Continental Insurance Company, Highland Insurance Company, National Union Fire Insurance Company and certain Underwriters at Lloyd's Insurance Companies, involved as primary insurers in an insurance plan of Occidental for itself and its subsidiaries including Hooker. Named also as defendants are "Does" 1 through 15,000. It is claimed by Hooker and Occidental that it was their intention to include the excess carriers in this designation.

In that action Hooker and Occidental seek a determination of the obligation of these insurers to provide a legal defense for Hooker in the many lawsuits which were expected to be brought against Hooker in New York State by the Love Canal residents, and a declaration concerning coverage if Hooker is found liable in New York.

Subsequently, the plaintiff insurance companies commenced the instant actions in New York in October and November, 1979, seeking a determination of their duty to defend Hooker and whether they must provide coverage in the actions arising from the dumping of the hazardous chemical wastes in New York.

Hooker and Occidental, attempted at about the same time to have the excess carriers named as parties to the California action, and also sought an injunction in California preventing any party in that proceeding from litigating the insurance issue in another forum. Eventually, the California Court decided not to enjoin the New York actions brought by the carriers.

Although there is a dispute as to what date the suits against the excess insurance carriers are to be considered actually commenced, it is a fact that the carriers were eventually served with amended complaint in April 1980, in the California action.

Defendants' Hooker and Occidental's motion to dismiss is based on three assertions:

1. The existence of the California action involving essentially the same matters as the New York litigation, CPLR 3211(a)(4);

2. Absence of other insurance companies who should be parties to these actions, CPLR 3211(a)(10); and

3. Lack of in personam jurisdiction over Occidental CPLR 3211(a)(8).

It is Hooker and Occidental's contention that plaintiffs' actions should either be dismissed or stayed, pending a determination of the...