Continental Cas. Co. v. Synalloy Corp., CV182-158.

• Court: United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
• Writing for the Court: R. Coleman Miller, James B. Hiers, Atlanta, Ga., for General Acc. Fire and Life Assur. Corp., Ltd
• Citation: 667 F. Supp. 1523
• Parties: CONTINENTAL CASUALTY COMPANY, Plaintiff, v. SYNALLOY CORPORATION, General Accident Fire and Life Assurance Corporation, Ltd., Midland Insurance Company, Fireman's Fund Insurance Company, Stonewall Insurance Company, Certain Underwriters at Lloyd's and all Other Underwriters Subscribing to a Policy of Insurance No. Lom 9081, Certain Underwriters at Lloyd's and all Other Underwriters Subscribing to a Policy of Insurance No. Lom 9080, Certain Underwriters at Lloyd's and all Other Underwriters Subscribing to a Policy of Insurance No. Lom 9520, First State Insurance Company, Lexington Insurance Company, American Mutual Liability Insurance Company, Appalachian Insurance Company, Affiliated F.M. Insurance Company, Fred Brown, Jr., Willie Hall, Alex Oliphant, Otis Powell, Joe Roberts, James Sturgis, Roger Utley, and Robert White, Defendants. SYNALLOY CORPORATION, Third-Party Plaintiff, v. COLUMBIA CASUALTY COMPANY and Continental Insurance Company, Third-Party Defendants.
• Docket Number: No. CV182-158.,CV182-158.
• Decision Date: 28 September 1983

667 F. Supp. 1523

CONTINENTAL CASUALTY COMPANY, Plaintiff,
v.
SYNALLOY CORPORATION, General Accident Fire and Life Assurance Corporation, Ltd., Midland Insurance Company, Fireman's Fund Insurance Company, Stonewall Insurance Company, Certain Underwriters at Lloyd's and all Other Underwriters Subscribing to a Policy of Insurance No. Lom 9081, Certain Underwriters at Lloyd's and all Other Underwriters Subscribing to a Policy of Insurance No. Lom 9080, Certain Underwriters at Lloyd's and all Other Underwriters Subscribing to a Policy of Insurance No. Lom 9520, First State Insurance Company, Lexington Insurance Company, American Mutual Liability Insurance Company, Appalachian Insurance Company, Affiliated F.M. Insurance Company, Fred Brown, Jr., Willie Hall, Alex Oliphant, Otis Powell, Joe Roberts, James Sturgis, Roger Utley, and Robert White, Defendants.
SYNALLOY CORPORATION, Third-Party Plaintiff,
v.
COLUMBIA CASUALTY COMPANY and Continental Insurance Company, Third-Party Defendants.

No. CV182-158.

United States District Court, S.D. Georgia, Augusta Division.

September 28, 1983.

667 F. Supp. 1524

COPYRIGHT MATERIAL OMITTED

667 F. Supp. 1525

COPYRIGHT MATERIAL OMITTED

667 F. Supp. 1526

David A. Handley, Thomas E. McCarter, Michael W. Higgins, Atlanta, Ga., for Continental Cas. Co

Blake & Thompson, Joseph J. Blake, Jr., Haynsworth, Marion, McKay & Guerard, Thomas H. Coker, Jr., Greenville, S.C., James M. Thompson, Lee & Clark, P.C., Savannah, Ga., for Synalloy Corp.

R. Coleman Miller, James B. Hiers, Atlanta, Ga., for General Acc. Fire and Life Assur. Corp., Ltd.

Laronce Beard, Augusta, Ga., for Joe Roberts.

Daniel S. Reinhardt, John P. Dalton, Atlanta, Ga., for Charles Allen Skey, Rep Underwriter at Lloyd's, Walbrook Ins. Co., Ltd., St. Katherine Ins. Co., Ltd. (XA/C), St. Katherine Ins. Co., Ltd, Turegum Ins. Co., Bellefonte Ins. Co., English & American Ins. Co., Dominion Ins. Co., Ltd. and Lexington Ins. Co.

David B. Higdon, Joseph H. Davis, Macon, Ga., for Fidelity & Cas. Ins. of New York.

Taylor Putney, Jr., John D. Jones, Atlanta, Ga., for American Mut. Liability Ins. Co.

Luhr G.C. Beckmann, Jr., Andrew J. Hill, III, Beckmann & Pinson, P.C., Savannah, Ga., for General Acc. Ins. Co.

Ronald D. Reemsnyder, Atlanta, Ga., for First State Ins. Co.

James McGuire, Mendes & Mount, New York City, Wm. Byrd Warlick, Augusta, Ga., for Columbia Cas. Co.

Percy J. Blount, Burnside & Wall, Augusta, Ga., for Brown, Hall, Oliphant, Powell, Sturgis, Utley and White.

J. Robert Persons, Lord, Bissell & Brook, Atlanta, Ga., for Appalachain Ins. Co. and Affiliated FM Ins. Co.

John W. Winborne III, Atlanta, Ga., for Midland Ins. Co. and First State Ins. Co.

Richard R. Mehrhof, Jr., Augusta, Ga., for Stonewall Ins. Co.

 Table of Contents
                 Page
                 I. Introduction ............................. 1526
                 II. Factual Background and Procedural History
                 .......................................... 1527
                III. Synalloy's Motion for Partial Summary
                 Judgment Against General Accident and
                 Continental .............................. 1530
                 A. Synalloy vs. General Accident ......... 1530
                 B. Court's Discussion and Analysis ....... 1531
                 C. Synalloy vs. Continental .............. 1537
                 D. Court's Discussion and Analysis ....... 1538
                 IV. Synalloy's Motion for Summary Judgment
                 Against First State and F & C ............ 1542
                 A. Synalloy vs. First State ............... 1542
                 B. Court's Discussion and Analysis ........ 1543
                 C. Synalloy vs. F & C ..................... 1547
                 V. Synalloy vs. Continental Reprise ......... 1548
                 VI. Summary .................................. 1549
                VII. Conclusion ............................... 1549
                

ORDER

EDENFIELD, District Judge.

I. Introduction

The Court has before it defendant Synalloy Corporation's motions for partial summary judgment and for summary judgment on its cross-claims against General Accident Fire and Life Assurance Corporation, Ltd. and First State Insurance Company, on its counterclaim against Continental Casualty Company and on its third-party complaint against Fidelity & Casualty Insurance Company of New York. Oral argument on the motions was heard on April 14, 1983.

Synalloy Corporation hereinafter "Synalloy" is entitled to summary judgment only if it carries its demanding burden of demonstrating that "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1030 (5th Cir. Unit B 1982). To assess whether Synalloy has met this burden, the Court has viewed all admissible evidence and factual inferences drawn therefrom in the light most favorable to the non-movants, see Warrior Tombigbee Transp. Co. v. M/V NAN FUNG, 695 F.2d 1294, 1296 (11th Cir.1983), and has resolved all reasonable doubts about the facts in favor of the parties opposing the motions. Id.; Southway Theatres, Inc. v. Georgia

667 F. Supp. 1527

Theatre Co., 672 F.2d 485, 493 (5th Cir. 1982). Moreover, though many of the issues here are legal in nature, the parties do disagree about the inferences that should be drawn from certain facts. If these issues are genuine and the factual inferences reasonable and material, summary judgment is, of course, improper. Warrior Tombigbee, supra, at 1296; Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1369 (11th Cir.1982)

This declaratory judgment action arises out of other litigation in which Synalloy has been involved. To an extent, the eventual outcome of these other cases will solidify the positions of the parties in the suit at bar. The Court is aware of settlement negotiations which have ensued and in some cases have been finalized in these related actions and is troubled by the possibility that a ruling on these motions may be premature. Furthermore, substantial questions, not raised in these motions, are before the Court in the instant action and the record is not yet complete. None of the parties to these particular motions has voiced any such reservations, however, and it appears that any ruling issued by this Court may be beneficial to the advancement of this litigation.

II. Factual Background and Procedural History

The following account of events contains some facts of only historical significance, facts which are not disputed by the parties, and facts as to which the Court concludes there is no genuine issue. Where a fact is the subject of dispute, it will be duly noted as will be mere allegations.

Synalloy, a South Carolina corporation, purchased the assets¹ of Augusta Chemical Company in 1967. During the period between 1946 and 1972, Augusta Chemical Company and then Synalloy used in the manufacturing process the chemical betanaphthylamine (BNA) which once was widely used in dyes and rubber. Its carcinogenic properties have been publicized in recent years and use of BNA in production and research has been sharply curtailed. Workers exposed to BNA suffer a risk of developing cancer of the bladder and other disorders of the urinary tract. Since the dissemination to the public of information concerning the hazards of exposure to BNA, efforts have been made to contact Augusta Chemical and Synalloy workers and to conduct medical screening of these employees.

A number of lawsuits have been filed against Synalloy in the Superior Court of Richmond County, Georgia and in the United States District Court for the Southern District of Georgia, Augusta Division, by claimants alleging injuries as a result of exposure to BNA during their employment with Augusta Chemical Company or Synalloy. In these actions, the plaintiffs contend that BNA was a known carcinogenic agent; that Synalloy knew or should have known the effects of BNA on the human body; that plaintiffs themselves did not know or appreciate the dangers of BNA until January, 1981; that Synalloy failed to warn them of the effects, failed to provide a safe work place and failed to provide proper safety and protective equipment. They further allege that Synalloy deliberately concealed the danger of BNA from the plaintiffs and intentionally did nothing to protect the plaintiffs; and that this fraudulent concealment aggravated the condition of the plaintiffs. They also contend that these actions of Synalloy injured their peace, feelings and happiness. Pain and suffering damages, medical expenses, and punitive damages are sought. Alternatively, the plaintiffs seek damages for the injuries to their peace, feelings and happiness.

The institution of these lawsuits naturally raised the question of insurance coverage. Numerous carriers have provided various kinds and amounts of coverage for Augusta Chemical Company and Synalloy during the years from 1946 to the present. American Mutual Liability Insurance Company issued workers' compensation, employer's

667 F. Supp. 1528

liability and general liability policies to Augusta Chemical Company prior to its acquisition by Synalloy in 1967. General Accident Fire and Life Assurance Company Corp., Ltd. hereinafter "General Accident" has issued to Synalloy workers' compensation, employer's liability and comprehensive general liability policies prior to and since 1967, including to the present. Augusta Chemical Company has been insured by General Accident under those policies since 1967. Continental Casualty Company hereinafter "Continental" issued two excess liability policies to Synalloy, one for the period from August 31, 1969 to August 31, 1972, and the second for the period from August 31, 1972 to August 31, 1975. First State Insurance Company hereinafter "First State" provided excess coverage from May 3, 1980 until April 8, 1982. Fidelity & Casualty Insurance Company of New York hereinafter "F & C" issued an excess policy to cover the period from April 8, 1982 to January 1, 1983. Other carriers, not party to these motions also issued policies covering various periods of time

General Accident, as the...