Burt Rigid Box Inc. v. Travelers Property Cas.
| Decision Date | 26 January 2001 |
| Docket Number | No. 91-CV-303F.,91-CV-303F. |
| Citation | 126 F.Supp.2d 596 |
| Parties | BURT RIGID BOX INC., f/k/a F.N. Burt Company, Inc., Plaintiff, v. TRAVELERS PROPERTY CASUALTY CORP., f/k/a Aetna Casualty and Surety Company, Defendant. |
| Court | U.S. District Court — Western District of New York |
Lippes, Silverstein, Mathias & Wexler (Jonathan A. Mugel, of counsel), Buffalo, NY, for plaintiff.
Stroock & Stroock & Lavan, LLP (Robert Lewin, Michele L. Jacobson, of counsel), New York City, Walsh, Roberts & Grace (James R. Walsh, Thomas E. Roberts, of counsel), Buffalo, NY, for defendant.
DECISION and ORDER
On July 2, 1998, the parties to this action consented to proceed before the undersigned (Docket Item No. 123). The matter is currently before the court on Defendant's motion for partial summary judgment filed on July 1, 1998 (Docket Item No. 120), and Plaintiff's motion for summary judgment filed October 30, 1998 (Docket Item No. 135).
Plaintiff commenced the above action on May 1, 1991, seeking declaratory relief that Defendant1 is obligated to defend and indemnify Plaintiff for costs expected and incurred with regard to the clean-up of hazardous waste contamination found at four sites located in Western New York, as well as ten personal injury actions related to the contamination found at one of the sites. On June 4, 1991, Defendant filed its answer, asserting affirmative defenses. On June 24, 1991, Defendant filed an amended answer.
On August 25, 1995, Plaintiff moved to amend the Complaint. That request was granted on September 29, 1995 and, on October 4, 1995, Plaintiff filed an Amended Complaint (Docket Item No. 83). On March 6, 1996, Defendant filed an answer to the Amended Complaint (Docket Item No. 87).
Plaintiff, on February 26, 1998, moved for a protective order prohibiting Defendant from taking depositions of plaintiffs in the underlying state actions and for sanctions. (Docket Item No. 102). The undersigned denied that motion in a Decision and Order filed March 16, 1998 (Docket Item No. 109).
On May 6, 1998, Plaintiff moved for permission to file a second amended complaint. That request was granted by stipulation and order filed June 22, 1998. On June 26, 1998, Defendant filed an answer to the second amended complaint. (Docket Item No. 115).
On July 1, 1998, Plaintiff filed a motion for summary judgment (Docket Item No. 117), supported by the Affidavit of Jonathan A. Mugel, Esq. (Docket Item No. 118) with a Statement of Facts Believed to be Undisputed attached and accompanied by four volumes of exhibits, and a Memorandum of Law (Docket Item No. 119).
Also on July 1, 1998, Defendant filed a motion for partial summary judgment (Docket Item No. 120), attached to which are a Statement of Undisputed Facts, the Affidavit of Michele L. Jacobson, Esq. ("Jacobson Affidavit"), and Exhibits, and accompanied by a Memorandum of Law (Docket Item No. 121) ("Defendant's Memorandum in Support of Partial Summary Judgment"), and the Affidavit of Patricia H. Kelley (Docket Item No. 122) ("Kelley Affidavit"). On August 27, 1998, Plaintiff filed a Memorandum of Law in opposition to Defendant's motion for partial summary judgment (Docket Item No. 125) ("Plaintiff's Memorandum in Opposition to Partial Summary Judgment"), the Affidavit of W. Russell Hurd (Docket Item No. 126) ("Hurd Affidavit in Opposition to Partial Summary Judgment"), the Affidavit of Jonathan A. Mugel, Esq., in Opposition to Partial Summary Judgment (Docket Item No. 127) ("Mugel Affidavit in Opposition to Partial Summary Judgment"), and a Response to Defendant's Statement of Undisputed Facts (Docket Item No. 128).
On September 4, 1998, Defendant filed a Memorandum of Law in Opposition to Plaintiff's summary judgment motion (Docket Item No. 130), and a Response to Plaintiff's Statement of Facts Believed to be Undisputed (Docket Item No. 132). Also on September 4, 1998, Defendant filed a cross-motion to strike Mugel's affidavit submitted in support of Plaintiff's summary judgment motion, and the affidavit of Alec E. Milne, sworn to on October 30, 1992 and submitted in connection with Plaintiff's summary judgment motion (Docket Item No. 129). That motion was supported by a Memorandum of Law (Docket Item No. 131).
According to a Stipulation and Order filed October 2, 1998 (Docket Item No. 133), the parties agreed that Plaintiff would withdraw the Mugel Affidavit submitted in support of Plaintiff's summary judgment motion and submit in its place affidavits which attempt to remedy the objections Defendant raised in its motion to strike. Other responding papers were also to be amended to refer to the replacement affidavits, and resubmitted.
On October 30, 1998, Plaintiff filed a new summary judgment motion (Docket Item No. 135). The motion was accompanied by a Memorandum of Law (Docket Item No. 136) ("Plaintiff's Memorandum"), the Affidavit of Jonathan A. Mugel ("Docket Item No. 137") ("Mugel Affidavit"), and the Affidavit of W. Russell Hurd (Docket Item No. 138) ("Hurd Affidavit").
By Stipulation and Order filed December 17, 1998 (Docket Item No. 141), the parties agreed that Plaintiff would submit a Supplemental Affidavit in support of its re-submitted motion for summary judgment and Defendant would resubmit a response to the motion. Accordingly, on December 18, 1998, Defendant filed a Memorandum of Law in Opposition to Plaintiff's re-filed summary judgment motion (Docket Item No. 142) ("Defendant's Memorandum in Opposition to Summary Judgment"), and a Response to Plaintiff's Re-filed Statement of Facts in Support of Summary Judgement (Docket Item No. 143).
On February 19, 1999, Plaintiff filed reply papers in further support of summary judgment, including a Reply Memorandum of Law (Docket Item No. 145) ("Plaintiff's Reply Memorandum"), and affidavits of several Burt employees. On February 19, 1999, Defendant also filed reply papers in further support of partial summary judgment, including a Reply Memorandum of Law (Docket Item No. 149) ("Defendant's Reply Memorandum"), a Response to Plaintiff's Resubmitted Statement of Undisputed Facts (Docket Item No. 150) ("Defendant's Response to Plaintiff's Statement of Undisputed Facts"), and a Supplemental Affidavit of Michele L. Jacobson, Esq. (Docket Item No. 151) ("Jacobson Reply Affidavit").
By letter filed January 4, 2001 (Docket Item No. 152), Plaintiff's counsel advised the court that pursuant to the parties stipulation filed October 2, 1998 (Docket Item No. 133), it was withdrawing its original summary judgment motion filed July 1, 1998 (Docket Item No. 117), along with the motion's supporting papers (Docket Items Nos. 118, 119 and four volumes of exhibits). Plaintiff's counsel also advised that Defendant's counsel had agreed to withdraw its papers filed on September 4, 1998 in response to Plaintiff's original summary judgment motion (Docket Items Nos. 130 and 132), as well as its cross-motion to strike filed September 4, 1998 (Docket Item No. 129), along with the memorandum of law in support of the motion (Docket Item No. 131).
Oral argument was deemed unnecessary.
Based on the following, the court finds that Burt is entitled to summary judgment finding Aetna issued to Moore comprehensive general liability policies which also covered Burt, including policy Nos. 01AL26334CM(Y), providing coverage for the period December 31, 1963 through December 31, 1965, 01AL042774CM(Y), providing coverage for the period December 31, 1965 through December 31, 1967, and 01AL143628CM(Y), providing coverage for the period December 31, 1967 through December 31, 1971. Burt is also entitled to summary judgment finding that Aetna has failed to establish policy No. 01AL143268CM(Y) was endorsed by a pollution exclusion. Aetna is entitled to summary judgment that it is not required to defend Burt with regard to the CERCLA actions relevant to the Pfohl Landfill or the Sleepy Hollow site, or the Cline I property damage action as Burt failed to timely notify Aetna as to the relevant occurrences and claims, thereby failing to meet a condition precedent to suit. Aetna is, however, required to defend Burt with regard to the CERCLA actions relevant to the Alltift Landfill and the Booth Oil Site as well as all the private personal injury and property damage actions except Cline I. Aetna is not required to indemnify Burt as to any claim outside the coverage of the policies, including the loss of consortium claims asserted in the Ewert, Spink and Weigel actions, or to Ewert plaintiff Rosemary Spork or Cline II plaintiff Wagner, nor must Aetna provide a defense as to those claims. Finally, in the absence of any controlling precedent supporting Aetna's request for apportionment of defense costs, the court will not order that defense costs ultimately be apportioned between Burt and Aetna as to claims that are ultimately found to be outside the coverage period or insurance policies.
Plaintiff Burt Rigid Box, Inc., f/k/a F.N. Burt Company, Inc. ("Burt"), is a corporation organized under the laws of Delaware with its principal office located in Cheektowaga, New York. Burt maintains that from 1908 to 1983, it was owned by and insured through Moore Corporation Limited of Canada ("Moore"). Defendant, Travelers Property Casualty Corp., f/k/a Aetna Casualty and Surety Company ("Aetna"), is an insurance company which allegedly issued primary and excess comprehensive general liability insurance coverage to Burt as an additional insured under policies issued to Moore covering the period December 31, 1963 through December 31, 1971. The Complaint seeks a determination of Aetna's obligation to defend and indemnify Burt with respect to suits by the State of New York and the United States of America, arising out of Plaintiff's alleged responsibility as a generator for chemical waste contamination and property damage...
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APPENDIX 22
...Cir. 1977) Barash v. Insurance Co. of North America, 451 N.Y.S.2d 603 (N.Y.Sup. 1982) Burt Rigid Box Inc. v. Travelers Property Cas., 126 F.Supp.2d 596 (W.D.N.Y. 2001), aff'd in relevant part, rev'd in part on other grounds, 302 F.3d 83 (2nd Cir. 2002) Cieslewicz v. Mutual Service Cas. Ins.......