Great Lakes Container Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pennsylvania
| Decision Date | 15 February 1984 |
| Docket Number | No. 83-1607,83-1607 |
| Citation | 727 F.2d 30 |
| Parties | , 14 Envtl. L. Rep. 20,282 GREAT LAKES CONTAINER CORPORATION, Plaintiff, Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Theodore Wadleigh, Manchester, N.H., with whom Jeffrey H. Karlin, and Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester, N.H., were on brief, for plaintiff, appellant.
James O. Barney, with whom Edward M. Kaplan, R. Carl Anderson, and Sulloway Hollis & Soden, Concord, N.H., were on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, and COFFIN and BOWNES, Circuit Judges.
Plaintiff-appellant Great Lakes Container Corporation appeals from a summary judgment ruling that no coverage was provided under a comprehensive general liability insurance policy issued to Great Lakes by defendant-appellee National Union Fire Insurance Company. On January 28, 1983, Great Lakes and others were sued by the United States for contaminating soils, ground waters and surface waters by pollutants and for unauthorized discharge of pollutants. Great Lakes asked National Union to assume defense of the suit and pay any damages assessed against it. National Union's refusal to do so resulted in a declaratory judgment action leading to the summary judgment which is the subject of this appeal.
We agree with the parties that, because the insured risk is located in New Hampshire, New Hampshire law controls. Consolidated Mutual Insurance Company v. Radio Foods Corporation, 108 N.H. 494, 240 A.2d 47, 48-49 (1968).
The case centers on the effect to be given exclusion (f) in the policy which provides:
This insurance does not apply ... (f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
Great Lakes first contends that, because National Union failed to obtain approval of the policy form containing exclusion (f) from the New Hampshire Commissioner of Insurance as required by N.H.Rev.Stat.Ann. ch. 412, Sec. 2 (1977), the exclusion is inoperative. National Union does not claim that the policy form was approved. The question, therefore, is what effect is to be given this failure to follow the statutory requirement which provides:
No policy covered by RSA 412:1 shall be issued or delivered until a copy of the form thereof has been filed with the insurance commissioner, nor until the expiration of 30 days after it has been so filed, unless the commissioner sooner gives his written approval thereto. If the commissioner shall give written notice to the insurer which has filed such form that it does not comply with the requirements of this chapter it shall be unlawful thereafter for the insurer to issue any policy in such form. Every policy issued by an insurer on an unapproved form shall constitute a separate violation under RSA 412:4.
N.H.Rev.Stat.Ann. ch. 412, Sec. 2.
The final sentence of the statute refers to N.H.Rev.Stat.Ann. ch. 412 Sec. 4 which prescribes the penalties for failure to obtain approval of the policy form:
If any insurer shall issue any policy in violation of the provisions of this chapter, or any policy which it has been forbidden to issue by the commissioner under the provisions hereof, the commissioner may, upon hearing, suspend or revoke said insurer's certificate of authority or license for a period not to exceed 3 years, impose an administrative fine in lieu of such suspension or revocation, or take such other administrative action against the offending company as the commissioner, in his discretion, may determine. The commissioner shall not be bound by the limitations on penalty contained in RSA 400-A:15, III in the enforcement of this section.
N.H.Rev.Stat.Ann. ch. 412, Sec. 4. The statute referred to, N.H.Rev.Stat.Ann. ch. 400-A, Sec. 15, III, provides for a suspension or revocation of certificate of authority or license or a fine not to exceed $2,500.
No action was taken by the commissioner in this case. There is nothing in the relevant statutes suggesting that an automatic nullification of a policy exclusion results from failure to obtain approval of a policy form as a whole. The cases cited by Great Lakes are inapposite. They construe different statutes and merely void changes in policy language or interpretation where the basic form apparently was already approved. In American Employers Insurance Company v. Worden, 92 N.H. 249, 29 A.2d 417 (1942) (), the court held that a clause in an employer's motor vehicle liability insurance policy excluding certain coverage was valid if the insurance commissioner had approved the form of the policy, including the exclusion, but void if he had not. Similarly, a more recent case holds that an insurer's unilateral change in the interpretation of a health insurance policy not approved by the insurance commissioner will not be recognized. Trombly v. Blue Cross/Blue Shield of New Hampshire-Vermont, 120 N.H. 764, 423 A.2d 980, 982 (1980) (applying N.H.Rev.Stat.Ann. ch. 419, Sec. 6 and ch. 420-A, Sec. 6). Here, there was no unilateral change in the policy.
At base Great Lake's argument proves too much, for no part of the policy was presented to the insurance commissioner for approval. Plaintiff provides no viable criteria for voiding only exclusion (f), but not the policy as a whole. To be sure, Great Lakes introduced in evidence an uncontested affidavit by the assistant insurance commissioner stating in pertinent part as follows. On September 28, 1970, the then insurance commissioner announced that the New Hampshire Insurance Department formally disapproved endorsement forms contained in general liability policies which excluded coverage for pollution and contamination causing damages or injuries. Since that announcement, it has been the policy of the insurance commissioner not to approve policies containing exclusions similar to exclusion (f). If the National Union's policy form had been submitted to the insurance commissioner pursuant to N.H.Rev.Stat.Ann. ch. 412, Sec. 2, he would not have approved the issuance of the policy with exclusion (f) contained therein.
We agree with the district court that this policy statement could not be legally enforced because it failed to meet the requirements of the New Hampshire Administrative Procedures Act, N.H.Rev.Stat.Ann. ch. 541-A. We adopt the district court's opinion on this issue.
We, therefore, conclude that exclusion (f) was part of the policy at the time suit was brought against Great Lakes by the United States.
The next issue is whether exclusion (f) unambiguously precluded coverage. We agree with Great Lakes that the insurer has the burden of proving noncoverage. We disagree, however, that this means that National Union had to prove facts showing that exclusion (f) applied. Under New Hampshire law, the complaint and the policy alone may be sufficient for a determination of no coverage. Aetna Insurance Company v. State Motors, Inc., 109 N.H. 120, 244 A.2d 64 (1968). Independent evidence, of course, may be needed if the complaint in the underlying action does not on its face establish lack of coverage. Moore v. New Hampshire Insurance Company, 122 N.H. 328, 444 A.2d 543 (1982); Allstate Insurance Company v. Carr, 119 N.H. 851, 409 A.2d 782 (1979).
We turn,...
To continue reading
Request your trial
-
Independent Petrochemical v. Aetna Cas. and Sur., Civ. A. No. 83-3347.
... ... v. General Dynamics Corp., 968 F.2d 707 (8th Cir.1992), the Eighth ... Continental Ins. Co., 612 S.W.2d 392 (Mo.Ct.App.1981), in which ... on the resulting damage); Protective National Insurance Company of Omaha v. City of Woodhaven, ... United States Fire Ins. Co., 651 S.W.2d 616 (Mo.App.1983). This ... ("Continental"); Employers Commercial Union Insurance Company ("ECU"); First State Insurance ... Insurance Company of the State of Pennsylvania ("ISOP"); North Star Reinsurance Company ("North ... (6th Cir.1988) (construing Kentucky law); Great Lakes Container Corp. v. National Union Fire Ins ... ...
-
Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp.
...Fidelity & Guar. Co. v. Star Fire Coals, Inc., 856 F.2d 31 (6th Cir.1988) (construing Kentucky law); Great Lakes Container Corp. v. National Union Fire Ins. Co., 727 F.2d 30 (1st Cir.1984) (construing New Hampshire law). Contra CPC Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.......
-
Sharon Steel Corp. v. Aetna Cas. and Sur. Co.
... ... v. Fireman's Fund Ins. Co., 52 F.3d 1522, 1529-30 (10th Cir.1995); ... Co. v. Star Fire Coals, Inc., 856 F.2d 31, 34-35 (6th Cir.1988) ... Inc., 40 F.3d 146, 153-54 (7th Cir.1994); Great Lakes Container Corp. v. National Union Fire Ins ... , 942 F.2d 189, 193-94 (3d Cir.1991) (Pennsylvania law); New York v. AMRO Realty Corp., 936 F.2d ... ...
-
Morton Intern., Inc. v. General Acc. Ins. Co. of America
... ... Pennsylvania Corporation (Successor to the Potomac Insurance ... Fire and Life Assurance Corporation, Ltd.); ... National Insurance Company, A California Corporation; ... National Union Fire Insurance Company of Pittsburgh, A ... Business Machines Corp., J.T. Baker, Inc., Nestle Food Company, Olin ... limit coverage for pollution damage to so great an extent that the industry's representation of ... to pollution-exclusion clause); Great Lakes Container Corp. v. National Union Fire Ins., 727 ... ...
-
CHAPTER 10 ISSUES IN INSURANCE COVERAGE FOR ENVIRONMENTAL LIABILITIES
...several years or as part of the insured's regular business activity. See, Great Lakes Container Corp. v. National Union Fire Ins. Co., 727 F.2d 30 (1st Cir. 1984); American States Insurance Co. v. Maryland Casualty, 587 F. Supp. 1549, 1553 (E.D. Mich. 1984) (no duty to defend where underlyi......