LaFarge Corp. v. Travelers Indem. Co.
| Citation | 927 F. Supp. 1534 |
| Decision Date | 22 February 1996 |
| Docket Number | No. 93-475-CIV-25C.,93-475-CIV-25C. |
| Parties | LAFARGE CORPORATION, Plaintiff, v. The TRAVELERS INDEMNITY COMPANY, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Charles Paul Schropp, Schropp, Buell & Elligett, P.A., Tampa, FL, for Lafarge Corporation, plaintiff.
Herbert John Baumann, Jr., Louis Schulman, Butler, Burnette & Pappas, Tampa, FL, for Travelers Indemnity Co., defendant.
Mercer Kaye Clarke, Clarke, Silverglate, Williams & Montgomery, Miami, FL, for Appalachian Insurance Company, defendant.
Louis G. Adolfsen, Melito & Adolfsen, P.C., New York City, Bradley S. Fischer, Melito & Adolfsen, Ft. Lauderdale, FL, for First State Ins. Co., defendant.
Stephen D. Cuyler, Cuyler, Burk & Matthews, Parsippany, NY, Judith Williford Simmons, W. Gray Dunlap, Jr., Frank, Schabacker, Gramling, Simmons & Dunlap, Tampa, FL, Sean R. Kelly, Joan M. Schwab, Paul S. Degiulio, Saiber, Schlesinger, Satz & Goldstein, Newark, NJ, for Gibraltar Casualty Company, defendant.
Gerard E. Pyszka, Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, Miami, FL, for Highlands Insurance Company, defendant.
Caryl E. Delano, Harris, Barrett, Mann & Dew, St. Petersburg, FL, Anthony R. Gambardella, Michael E. Buckley, Rivkin, Radler, Bayh, Hart & Kremer, Uniondale, NY, for Northbrook Insurance Company, defendant.
Scott Herbert Michaud, Michaud, Buschmann, Fox, Ferrara & Mittelmark, P.A., Boca Raton, FL, for Puritan Insurance Company, defendant.
FINAL SUMMARY JUDGMENT
Upon consideration of the pending motions, responses to such motions, and the record herein, the Court finds that:
I
Plaintiff brought this action against Travelers Indemnity Company ("Travelers"), and other insurers, alleging that Defendants had a duty to defend and indemnify Plaintiff for certain costs of clean-up of hazardous waste at a location in Tampa, Florida. Plaintiff declares that Defendants should have defended and indemnified Plaintiff regarding a suit against Plaintiff by the Environmental Protection Agency. Travelers maintains that it has no such responsibility based upon pollution exclusions contained in its insurance policies with Plaintiff.
The EPA prevailed in an environmental clean-up action against Plaintiff for the 62nd Street Superfund Site ("Site") which was a dump site that contained waste cement, cement kiln dust and kiln liners attributable to Plaintiff. During 1973, Plaintiff's predecessor, General Portland Cement Hooker's Point Plant, arranged for the transport and disposal of certain cement waste by Jernigan Trucking. Jernigan Trucking diverted this waste from the planned location and dumped it at the instant Site. Plaintiff was found to have been responsible for the release of certain hazardous materials which arose from the waste it dumped at the Site.
It is clear that the dumping itself occurred in 1973. However, it was not until 1976 that there was found to be a suspicion of leaching of waste water from the Site. In fact, it was not until 1983 that official reports prepared by the EPA revealed the presence of pollution contamination at the Site.
II
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56. Once a party properly makes a summary judgment motion by demonstrating to the district court the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)); Hoffman v. Allied Corp., 912 F.2d 1379, 1382 (11th Cir.1990).
The standard for summary judgment mirrors the standard for a directed verdict. Hoffman, 912 F.2d at 1383. Thus, a dispute about a material fact is genuine, and summary judgment is inappropriate, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The Court must view all evidence most favorably toward the nonmoving party, and all justifiable inferences are to be drawn in the nonmoving party's favor. Hoffman, 912 F.2d at 1383. If the Court finds, under the relevant standards, that reasonable jurors could find a verdict for the nonmoving party since a disputed factual issue exists, summary judgment should be denied. Id. The Court may not decide a factual dispute. Fernandez v. Bankers National Life Ins. Co., 906 F.2d 559, 564 (11th Cir.1990). If a factual issue is present, the Court must deny summary judgment and proceed to trial. Id.
The Court must examine the evidence in light of the relevant substantive law when identifying which facts are material. Id. Of course, as an insurance dispute, persuasive federal substantive law on those issues will govern this Court's determination of this action.
In a diversity action the district court must apply the law of the forum when deciding conflicts of law issues. Klaxon Company v. Stentor Electric Manufacturing Company, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Digioia v. H. Koch & Sons, 944 F.2d 809, 811 (11th Cir.1991). Plaintiff maintains that, as with other issues of substantive law, the "significant relationship" test is applied in Florida when deciding choice of law questions concerning the interpretation of the instant contracts. Shapiro v. Associated International Insurance Co., 899 F.2d 1116 (11th Cir.1990). Plaintiff declares that under Florida choice of law rules, matters bearing on the validity and substantive obligation of contracts are determined by the law of the place where the contract is made ("lex loci contractus"). Tang How v. Edward J. Gerrits, Inc., 961 F.2d 174, 179 (11th Cir.1992). Thus, Texas law should apply.
Generally, under Florida law, the doctrine of "lex loci contractus" directs that, in the absence of a contractual provision specifying the governing law, contracts, other than one for performance of services, are governed by the law of the state in which the contract is made, i.e., where the last act necessary to complete the contract is done. Fioretti v. Massachusetts General Life Insurance Company, 53 F.3d 1228, 1235-1236 (11th Cir.1995) (). Florida applies this more rigid rule, as opposed to the more flexible "significant relationship test", because, in light of our migratory society, Florida's public policy favors a rigid conflicts of law rule in situations where a party could modify the contract by merely moving to another state. Id. This rationale clearly applies to cases involving automobile or life insurance policies as in Fioretti and Sturiano v. Brooks, 523 So.2d 1126, 1130 (Fla.1988).
However, the Florida Supreme Court would not apply "lex locus contractus" to this case. The migration rationale does not apply to the instant case for reasons similar to those expressed by the Eleventh Circuit in a case involving a contract insuring real property. See Shapiro v. Associated International Insurance Co., 899 F.2d 1116 (11th Cir.1990).
The validity and rights under the instant contracts are determined by the law of the state which the parties understood to be the principal location of the insured risk, unless some other state has a more significant relationship with the transaction and parties. Section 193, Restatement (Second) of Conflicts of Law. Based upon the relevant criteria of Section 6 of the Restatement (Second) of Conflicts of Law, Florida has the most significant relationship with this transaction and the parties. The principal risk insured is located in Florida and was contemplated to remain unchanged. Indeed, Florida's interest in adjudicating interests related to pollution damage occurring in the state is substantial. Accordingly, Florida substantive law should govern, supplemented with persuasive authority from other jurisdictions where necessary, the resolution of this matter.
The construction and effect of a written contract of insurance, including the determination and resolution of an ambiguity, is a matter of law to be determined by the Court, which can often be decided by summary judgment. Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th Cir.1993); See U.S. v. Pepper's Steel and Alloys, Inc., 823 F.Supp. 1574, 1579 (S.D.Fla.1993). Further, where there exists an ambiguity, insurance contracts are construed in favor of the insured, while exclusions are always construed liberally in favor of coverage so as not to defeat the purpose of insurance. Id.; Stuyvesant Ins. Co. v. Butler, 314 So.2d 567, 570 (Fla.1975); Tropical Park, Inc. v. U.S. Fidelity and Guar. Co., 357 So.2d 253, 256 (Fla. 3rd DCA 1978).
Travelers issued several general liability policies to General Portland/Lafarge, during the relevant time periods herein, agreeing to defend and indemnify Plaintiff under certain circumstances. Since the damage to Plaintiff herein is continuous in nature with no clear date of origin or cessation, all policies are implicated. These general liability policies contained three different pollution exclusions.
From January 1, 1972 through January 1, 1974 and from April 1, 1981 through April 1, 1984, the policies contained the following exclusion:
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