Olin Corp. v. Insurance Co. of North America, 84 Civ.1968(TPG).
| Decision Date | 24 December 1997 |
| Docket Number | No. 84 Civ.1968(TPG).,84 Civ.1968(TPG). |
| Citation | 986 F.Supp. 841 |
| Parties | OLIN CORPORATION, Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Jerold Oshinsky, Stephen A. Dvorkin, Dickstein, Shapiro, Morin & Oshinsky, New York City, Joseph C. Garni, Chief Counsel, Olin Corp., Norwalk, CT, for Olin Corp.
John Altieri, Paul R. Koepff, Charles W. Fournier, O'Melveny & Myers, New York City, for INA.
Wm. Gerald McElroy, Jr., Catherine M. Colinvaux, Zelle & Larson, Waltham, MA, Jerome Murray, Donna Marie Hughes, New York City, for Employers Ins. of Wausau, A Mut. Corp.
Daniel A. Bartoldus, Ginamarie T. Alvino, Rivkin, Radler & Kremer, Uniondale, NY, for Allstate Ins. Co., as Successor to Northbrook Excess and Surplus Ins. Co.
James W. Greene, Bromley, Greene & Walsh, Washington, DC, Jonathan Gardner, Goodkind Labaton Rudoff & Sucharow LLP, New York City, for American Re-Insurance Co., Continental Cas. Co. and Harbor Ins. Co.
David M. Raim, Ellen H. Woodbury, Chadbourne & Parke, L.L.P., Washington, DC, for Nat. American Ins. Co. of California, as Successor to Stuyvesant Ins. Co.
Dale C. Christensen, Jr., R. Scott Garley, Seward & Kissel, New York City, for Hanover Ins. Co.
Richard H. Gimer, Ronald Uitz, Law Offices of Richard H. Gimer, Washington, DC, Theodore M. Greenberg, Aaron Locker, Locker, Greenberg & Brainin, New York City, for Falcon Ins. Co./Commercial Union Ins. Companies/C.E. Heath Compensation and Liability Ins. Co.
Howard B. Epstein, Schulte, Roth & Zabel LLP, New York City, Marian S. Hertz, Sheft, Golub & Kamlet, New York City, James P. Schaller, M. Elizabeth Medaglia, Richard Bryan, Jackson & Campbell, P.C., Washington, DC, for American Home Assur. Co./Lexington Ins. Co./Nat. Union Fire Ins Co. of Pittsburgh (Excess)/Franite State Ins. Co.
Marc H. Pillinger, Smith, Mazure, Director & Wilkins, New York City, Howard B. Epstein, Shultze Roth & Zabel LLP, New York City, for Nat. Union Fire Ins. Co. of Pittsburgh (Primary).
Patrick T. Walsh, Brent J. Graber, Blatt, Hammesfahr & Eaton, Chicago, IL, Michael J. Holland, Katherine B. Posner, Condon & Forsyth, for Certain Underwriters at Lloyd's, London and Certain London Market Ins. Companies, London & Edinburgh Ins. Co. and North River Ins. Co.
Jennifer A. Wolfe, Bodian & Eames, L.L.P., New York City, for AETNA Cas. & Sur. Co.
Virginia L. White-Mahaffey, James S. Felt, Steptoe & Johnson, Washington, DC, Joseph DeDonato, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York City, for Home Ins. Co.
Alexander H. Gillespie, Matthew G. Finnegan, Gilbert & Kurent, Washington, DC, Brian R. Ade, Gilberg & Kurent, New York City, for Firemen Ins. Co.
Lawrence L. Flynn, Gottesman, Wogel, Secunda, Malamy & Flynn, New York City, for Great American Ins. Co.
James Stapleton, Stefan Underhill, Carol Chow, LeBoeuf, Lamb, Greene & MacRae, Washington, DC, Suzanne Chalpin Alenick, LeBouef, Lamb, Green & MacRae, New York City, for Government Employees Ins. Co.(GEICO).
Robert W. Mullenberg, McElroy, Deutsch & Mulvaney, Morristown, NJ, for North River Ins. Co.
THE COURT: These are my findings and conclusions with respect to one of the issues left open in my July 3, 1997 opinion,* that is, whether Olin must be deemed to be a self-insurer during the years 1971 to 1985.
I am going to start by repeating something I just said in my discussion with Mr. Fournier, but let me go back to the jury verdict before I do that.
We must start with the framework we used at the trial, and the jury verdict at the end of that trial. The issue before the jury was whether there was accidental injury to property, or to put it in slightly different language, arising from the differently worded policy, whether there was property damage which was neither expected nor intended. Just as a shorthand, I am going to speak now of accidental injury because the real meaning of the coverage was not changed despite changes in language, at least the meaning for present purposes was not changed.
The jury found accidental injury to soil only for the years 1956 and 1957, and for purposes of my discussion here, I am going to ignore that injury to soil. I am going to deal with the finding of the injury about groundwater because I think it will illustrate the issues which I believe are of a general nature. Thus, although I am going to discuss what the jury found with respect to the site involved in the recent trial, I am going to refer to these matters as illustrations of what I believe are general considerations.
The jury found that there was accidental injury to groundwater commencing in 1958 and going through 1971. It was conceded that, commencing in 1971, a pollution exclusion appeared applicable to certain policies, and as a result of the jury's findings it is now established that the pollution exclusion was effective in all policies beginning in 1971.
The jury further found that there was injury to property which was a cause of cleanup cost to Olin for the years 1972 through 1985. What this means is that, according to the jury's finding in this case, there was injury to property covered by the insurance for the years 1958 through 1985. The jury further found that there was injury to property although it was not covered by the insurance, and that injury to property extended during the remaining years through 1985.
Olin had general comprehensive liability (GCL) coverage applicable, among other things, to gradual pollution during the years 1956 through 1970. Such coverage ceased commencing in 1971 by virtue of the pollution exclusion. This exclusion was applicable during all of the years 1971-1985.
Due to the nature of gradual pollution, and under the framework which we have used in this case, this was not a situation where there was one injury with consequential damages. This was a situation where there were continual instances of injuries, each of which would be sufficient to be a separate trigger for liability under a policy if the policy were in effect during the particular year.
We start with the proposition that the insurance company is normally liable only for injury occurring during the time covered by the insurance under a general comprehensive liability policy. If the injury or the occurrence does in fact happen during the period of the policy, then there is coverage. If it occurs or happens after the conclusion of an insurer's policy period, it is not the responsibility of that insurance company. This case involves annual policies, and thus, if the occurrence or injury did not happen during the year of coverage, it is not covered by that policy.
If we apply that basic contractual consideration to the present case, we would find that the insurance company was liable for injuries and occurrences happening from 1958 through 1970 because there was coverage and there was no pollution exclusion. If we apply the contracts according to their terms, we could not find coverage for injuries or occurrences happening beginning in 1971 because the pollution exclusions came into effect. So for the period from 1971 through 1985, Olin was simply not covered for gradual pollution under general comprehensive liability policies.
Commencing in 1985, there were orders by...
To continue reading
Request your trial
-
U.S. Fidelity & Guaranty Co. v. Treadwell Corp.
...Owens-Illinois, 650 A.2d at 995; Keene, 667 F.2d at 1058 (Wald, J., concurring in part)); see also Olin Corp. v. Insurance Co. of N. Am., 986 F.Supp. 841, 843-45 (S.D.N.Y.1997) (discussing this Treadwell makes various arguments as to why the Second Circuit's decision in Stonewall is wrong o......
-
Sybron Transition v. Security Ins. Co. of Hartford
...triggered." (Tr. at 29.) Sybron contends that I made a manifest error of law in interpreting Stonewall and Olin Corp. v. Insurance Co. of North America, 986 F.Supp. 841 (S.D.N.Y.1997), because I looked not at whether insurance was available in the marketplace but rather at Sybron's intent t......
-
Brooklyn Union Gas Co. v. Century Indem. Co.
...multiyear policies. (See Olin Corp. v Insurance Co. of N. Am., 972 F.Supp. 189, 192 [SD NY 1997]; Olin Corp. v Insurance Co. of N. Am., 986 F.Supp. 841, 843 [SD NY 1997]; Olin Corp., 221 F.3d at 321. Century's position in the Olin litigation with respect to self-insured retentions is fully ......
-
Olin Corp. v. Ins. Co. of North America
...opinions, Olin Corp. v. Insurance Co. of N. Am., 972 F. Supp. 189 (S.D.N.Y. 1997) ("Olin I"), and Olin Corp. v. Insurance Co. of North America, 986 F. Supp. 841 (S.D.N.Y. 1997) ("Olin II"), the district court concluded that the costs incurred by Olin to remediate soil at the site were the r......