Bituminous Cas. Corp. v. Kenworthy Oil Co., No. MO-95-CA-047.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtGUIROLA, United States Magistrate
Citation912 F. Supp. 238
Docket NumberNo. MO-95-CA-047.
Decision Date16 January 1996
PartiesBITUMINOUS CASUALTY CORPORATION v. KENWORTHY OIL COMPANY.

912 F. Supp. 238

BITUMINOUS CASUALTY CORPORATION
v.
KENWORTHY OIL COMPANY.

No. MO-95-CA-047.

United States District Court, W.D. Texas, Midland-Odessa Division.

January 16, 1996.


912 F. Supp. 239

H. Michelle Caldwell, David J. Schubert, Vial, Hamilton, Koch & Knox, Dallas, TX, for plaintiff.

Stephen Brannan, Odessa, TX, for defendant.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56

GUIROLA, United States Magistrate Judge.

Plaintiff, Bituminous Casualty Corporation ("Bituminous"), has filed a 28 U.S.C. § 2201 complaint for declaratory judgment. Bituminous seeks judicial determination of their duty to defend and indemnify the insured, Kenworthy Oil Company ("Kenworthy") in a pending state court action. Before this Court is the Motion of Bituminous for Summary Judgment pursuant to FED.R.CIV.P. 56(a). After consideration of the Plaintiff's Motion, Defendant's reply, arguments of counsel and the pertinent legal authority, it is the opinion of the Court that Plaintiff's motion is well taken and should be granted.

FACTS AND PROCEDURAL HISTORY

Between 1990 and 1995 Bituminous issued to Kenworthy five one-year commercial general liability insurance policies. In October of 1994 Kenworthy was included as a party defendant in a lawsuit filed in the 190th District Court, Harris County, Texas styled Robert B. Holt v. Texaco Exploration & Production, Inc., et al., Cause No. 94-051183 ("Holt"). The dispute in the Holt lawsuit centers around allegations that the defendants have conducted oil and gas recovery operations in a manner which has resulted in the corruption of the underlying aquifer by residual pollutants. Kenworthy turned to Bituminous to commence its contractual obligations to defend and indemnify under the provisions of the insurance policy.

In the pending summary judgment motion, Bituminous contends that the policy's pollution exclusion endorsement relieves them of any obligation to defend or indemnify Kenworthy. Alternatively, Bituminous argues that the facts alleged in the underlying state court action do not constitute an "occurrence" within the meaning of the policy.

DISCUSSION

FED.R.CIV.P. 56 permits any party to a civil action to move for a summary judgment upon a claim, counterclaim, or cross-claim as to which there is no genuine issue of material fact and upon which the moving party is entitled to prevail as a matter of law. A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S.Ct. at 2553-54. The non-moving party

912 F. Supp. 240
may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)

In determining whether an insurer has a duty to defend its insured, Texas courts employ the "eight corners rule" or the "complaint allegation rule". Under this principle, the allegations of the complaint are taken as true, and the duty to defend arises if the complaint thus construed asserts a claim facially within the coverage of the policy as reflected by its terms. Lafarge Corp. v. Hartford Casualty Insurance Co., 61 F.3d 389, 393 (5th Cir.1995). The insurer may look solely at the pleadings without reference to facts outside the pleadings to make a determination of whether there is a duty to defend. American Alliance Insurance v. Frito Lay, 788 S.W.2d 152 (Tex.App.—Dallas 1990).

All of the insurance policies issued to Kenworthy by Bituminous contained a pollution exclusion endorsement. The endorsement provides:

This insurance does not apply to:

(1) Bodily injury or property damages arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.
(2) Any loss, cost or expense arising out of any governmental direction or request that the named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.
Subparagraph (1) above does not apply to bodily injury or property damage caused by heat, smoke or fumes from a hostile fire. As used in this exclusion, a hostile fire means one which becomes uncontrollable, or breaks out from where it was intended to be.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
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6 practice notes
  • Great Northern Nekoosa v. Aetna Cas. and Sur. Co., Civil Action No. 1:92CV017-S-D.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • April 8, 1996
    ...products, no coverage or duty to defend; no discussion of personal injury coverage); Bituminous Cas. Corp. v. Kenworthy Oil Co., 912 F.Supp. 238 (W.D.Tex.1992) ("When these factual allegations are distilled to their essence, it is clear that plaintiff seeks recovery of damages for past and ......
  • Fed. Ins. Co. v. Northfield Ins. Co., CIVIL ACTION NO. H-14-262
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 22, 2014
    ..."look outside the pleadings[] or imagine factual scenarios which might trigger coverage"); Bituminous Cas. Corp. v. Kenworthy Oil Co., 912 F. Supp. 238, 240-41 (W.D. Tex.), aff'd, 105 F.3d 656 (5th Cir. 1996) (construing similar pollution exclusion and holding that exclusion applied because......
  • Resure, Inc. v. Chemical Distributors, Inc., Civil Action No. 95-274-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • May 31, 1996
    ...Dec. 27, 1995) (granting the defendant insurer's motion for summary judgment). See also Bituminous Casualty Corp. v. Kenworthy Oil Co., 912 F.Supp. 238, 240-41 6 Pet. For Damages at 3, Buggage v. TMI Enters., Inc., No. 26066 (La. 18th J.D.C.). 7 Pet. at 3, Kimble v. Safeway Transp., Inc., N......
  • United Nat. Ins. Co. v. Hydro Tank, Inc., No. 06-20335.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 2007
    ...(allegation of pollutant-related injury sufficient to trigger pollution exclusion clause); Bituminous Cas. Corp. v. Kenworthy Oil Co., 912 F.Supp. 238, 241 (W.D.Tex.1996) Motiva's argument amounts to the converse of the policy language. Motiva claims that if any aspect of an allegation incl......
  • Request a trial to view additional results
6 cases
  • Great Northern Nekoosa v. Aetna Cas. and Sur. Co., Civil Action No. 1:92CV017-S-D.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • April 8, 1996
    ...products, no coverage or duty to defend; no discussion of personal injury coverage); Bituminous Cas. Corp. v. Kenworthy Oil Co., 912 F.Supp. 238 (W.D.Tex.1992) ("When these factual allegations are distilled to their essence, it is clear that plaintiff seeks recovery of damages for past and ......
  • Fed. Ins. Co. v. Northfield Ins. Co., CIVIL ACTION NO. H-14-262
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 22, 2014
    ..."look outside the pleadings[] or imagine factual scenarios which might trigger coverage"); Bituminous Cas. Corp. v. Kenworthy Oil Co., 912 F. Supp. 238, 240-41 (W.D. Tex.), aff'd, 105 F.3d 656 (5th Cir. 1996) (construing similar pollution exclusion and holding that exclusion applied because......
  • Resure, Inc. v. Chemical Distributors, Inc., Civil Action No. 95-274-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • May 31, 1996
    ...Dec. 27, 1995) (granting the defendant insurer's motion for summary judgment). See also Bituminous Casualty Corp. v. Kenworthy Oil Co., 912 F.Supp. 238, 240-41 6 Pet. For Damages at 3, Buggage v. TMI Enters., Inc., No. 26066 (La. 18th J.D.C.). 7 Pet. at 3, Kimble v. Safeway Transp., Inc., N......
  • United Nat. Ins. Co. v. Hydro Tank, Inc., No. 06-20335.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 2007
    ...(allegation of pollutant-related injury sufficient to trigger pollution exclusion clause); Bituminous Cas. Corp. v. Kenworthy Oil Co., 912 F.Supp. 238, 241 (W.D.Tex.1996) Motiva's argument amounts to the converse of the policy language. Motiva claims that if any aspect of an allegation incl......
  • Request a trial to view additional results

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