PCS Nitrogen, Inc. v. Cont'l Cas. Co.

• Decision Date: 18 December 2019
• Docket Number: Appellate Case No. 2016-001140,Opinion No. 5699
• Citation: 837 S.E.2d 662,429 S.C. 30
• Court: South Carolina Court of Appeals
• Parties: PCS NITROGEN, INC., Appellant, v. CONTINENTAL CASUALTY COMPANY, Admiral Insurance Company, United States Fire Insurance Company, ACE Property & Casualty Insurance Company, Certain Underwriters at Lloyd's London, the Aviva Companies, the Winterthur Companies, Certain London Market Insurance Companies, Providence Washington Insurance Company (as Successor in Interest by way of Merger to Seaton Insurance Company, f/k/a Unigard Security Insurance, f/k/a Unigard Mutual Insurance Company ), Berkshire Hathaway Specialty Insurance Company (f/k/a Stonewall Insurance Company), Lexington Insurance Company, Starr Indemnity & Liability Company (f/k/a Republic Insurance Company), First State Insurance Company, Century Indemnity Company (f/k/a California Union Insurance Company and Insurance Company of North America), Respondents.

429 S.C. 30

837 S.E.2d 662

PCS NITROGEN, INC., Appellant,

v.CONTINENTAL CASUALTY COMPANY, Admiral Insurance Company, United States Fire Insurance Company, ACE Property & Casualty Insurance Company, Certain Underwriters at Lloyd's London, the Aviva Companies, the Winterthur Companies, Certain London Market Insurance Companies, Providence Washington Insurance Company (as Successor in Interest by way of Merger to Seaton Insurance Company, f/k/a Unigard Security Insurance, f/k/a Unigard Mutual Insurance Company ), Berkshire Hathaway Specialty Insurance Company (f/k/a Stonewall Insurance Company), Lexington Insurance Company, Starr Indemnity & Liability Company (f/k/a Republic Insurance Company), First State Insurance Company, Century Indemnity Company (f/k/a California Union Insurance Company and Insurance Company of North America), Respondents.

Appellate Case No. 2016-001140

Opinion No. 5699

Court of Appeals of South Carolina.

Heard March 12, 2019

Filed December 18, 2019

Rehearing Denied February 13, 2020

William Howell Morrison, of Haynsworth Sinkler Boyd, PA, of Charleston; and Michael H. Ginsberg and Matthew R. Divelbiss, both of Pittsburgh, PA; all for Appellant.

Morgan S. Templeton, of Wall Templeton & Haldrup, PA, of Charleston, and Patrick F. Hofer, of Washington, D.C., for Respondent Continental Casualty Company; Robert Holmes Hood, Jr., of Hood Law Firm, LLC, of Charleston, and Robert F. Walsh, Patricia B. Santelle, and Thomas M. Going, of Philadelphia, PA, for Respondents United States Fire Insurance Company, ACE Property & Casualty Insurance Company, Century Indemnity Company (f/k/a California Union Insurance Company and Insurance Company of North America); R. Scott Wallinger, Jr. and Christian Stegmaier, of Collins & Lacy, PC, of Columbia, and John S. Favate and Michael Forino, of Springfield, NJ, for Respondent United States Fire Insurance Company; John Robert Murphy, Adam J. Neil, and Wesley Brian Sawyer, of Murphy & Grantland, PA, of Columbia, for Respondent Admiral Insurance Company; John Thomas Lay, Jr. and Laura Watkins Jordan, of Gallivan, White & Boyd, PA, of Columbia, and Helen Franzese, of Greensboro, NC, for Respondent Certain London Market Insurance Companies; Robert Michael Ethridge, of Ethridge Law Group, LLC of Mount Pleasant, and Wayne S. Karbal and Paul Parker, of Chicago, IL, for Respondent First State Insurance Company; John C. Bonnie, of Weinberg Wheeler Hudgins Gunn & Dial, LLC, of Atlanta, GA, for Respondent Lexington Insurance Company; Edward K. Pritchard, III, of Pritchard Law Group LLC, of Charleston, and Richard McDermott and Seth M. Jaffe, of Chicago, IL, for Respondent Certain Underwriters at Lloyd's London, Respondent the Aviva Companies, Respondent the Winterthur Companies, Respondent Berkshire Hathaway Specialty Insurance Company (f/k/a Stonewall Insurance Company), Respondent Starr Indemnity & Liability Company (f/k/a Republic Insurance Company); Elizabeth Janelle Palmer, of Rosen Rosen & Hagood, LLC, of Charleston, and Harry Lee and Molly Woodson Poag, of Washington, DC, for Respondent Providence Washington Insurance Company (as Successor in Interest by way of Merger to Seaton Insurance Company, f/k/a Unigard Security Insurance, f/k/a Unigard Mutual Insurance Company); and Elizabeth Fraysure Fulton, of Hall Booth Smith, PC, of Mount Pleasant, for Respondents Certain Underwriters at Lloyd's London, the Aviva Companies, the Winterthur Companies, Starr Indemnity & Liability Company (f/k/a Republic Insurance Company).

MCDONALD, J.:

In this insurance coverage dispute, PCS Nitrogen, Inc., argues the circuit court erred in finding it was not entitled to coverage rights under Columbia Nitrogen Corporation's (Old CNC) insurance policies issued by Respondents.¹ Specifically, PCS Nitrogen asserts the circuit court erred in finding it was not entitled to coverage rights under either a post-loss assignment of the rights under Old CNC's policies or as the corporate successor of Old CNC via de facto merger. We affirm the circuit court's order granting Respondents' motions for summary judgment.

Facts and Procedural History

From 1966 until 1972, Old CNC operated phosphate fertilizer plants in Charleston (the Charleston Site). From 1966 to 1985, Old CNC purchased primary and excess liability insurance policies from Respondents. Old CNC was the named insured on the policies, which stated, "The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... property damage ... to which this insurance applies, caused by an occurrence ...."² (emphasis added). The policies further provided, "Assignment of interest under this policy shall not bind the company until its consent is endorsed hereon ." (emphasis added). Regarding actions against the insurer, the policies stated:

No action shall lie against the company, unless, as condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company .

Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by the policy.

(emphasis added).

In October 1986, Old CNC entered into a transaction with CNC Corp. (New CNC) in which it sold some of its assets to New CNC via an acquisition agreement; this transaction did not include the sale of the Charleston Site, which was sold to a third party in 1985. In addition to some of Old CNC's assets, New CNC assumed some of Old CNC's liabilities as detailed in the acquisition agreement, which stated New CNC assumed liabilities related to the "acquired business." The acquisition agreement defined the acquired business as "a business that produces and sells ammonia and nitrogen-based products." Additionally, the acquisition agreement included a document titled "Assignment of Insurance Benefits," which was signed by Old CNC. It stated,

[B]y an Acquisition Agreement, dated as of October 31, 1986, entered into between [Old CNC] and [New CNC] ... [Old CNC] has agreed to sell, convey, transfer, and assign ... all of [Old CNC]'s rights, proceeds and other benefits to and under all of [Old CNC]'s insurance policies ....

....

[Old CNC] by these presents does hereby transfer and assign to [New CNC], its successors and assigns forever, all of [Old CNC]'s rights, title and interest, legal and equitable, in the benefits and proceeds under all of its insurance policies to the extent the same may be transferred and assigned ....

(emphasis added).

Prior to the closing of the asset sale, Old CNC composed a checklist of tasks that needed to be completed before or on the date of closing. The checklist included a section titled "Documents to be exchanged at Closing." This section stated the parties were to exchange "[a]ssignment of insurance policies with the consent of the insurance companies endorsed thereon ." (emphasis added).

By letter dated December 6, 1986, the parties summarized the disposition of Old CNC's insurance policies at the closing on November 1, 1986. The letter stated,

[Old CNC] had insurance coverages as listed on the attached insurance policy schedule as of October 31, 1986. Most all of those policies were cancelled at closing ... and pre-payments were refunded .... In these cases, new separate policies were issued to ... [New CNC].

According to an attached schedule, New CNC obtained insurer consent and endorsement as to one liability policy³ and cancelled the remaining policies.

Following the closing of the transaction, Old CNC filed a certificate of dissolution on November 19, 1986. Subsequently, New CNC changed its name to Columbia Nitrogen Corporation. On November 29, 1989, New CNC merged with Fertilizer Industries, Inc., which changed its name to Arcadian Corporation on November 30, 1989. In March 1997, Arcadian Corporation merged with PCS Nitrogen.

On September 26, 2005, Ashley II of Charleston, LLC, then owner of the Charleston Site, filed a declaratory judgment action against PCS Nitrogen in federal court, alleging PCS Nitrogen was liable for environmental remediation at the Charleston Site because New CNC acquired Old CNC's CERCLA liabilities in the 1986 transaction.⁴ The district court found PCS Nitrogen liable as a corporate successor to Old CNC under three theories, including a de facto merger theory. PCS Nitrogen , 714 F.3d at 172–73. PCS Nitrogen appealed, and the Fourth Circuit affirmed the district court but only as to one theory. Id. at 173–76. Specifically, the Fourth Circuit held PCS Nitrogen was liable as a corporate successor to Old CNC because New CNC contractually assumed Old CNC's liabilities via the 1986 transaction. Id. at 176.

On March 24, 2015, PCS Nitrogen filed an amended complaint in state court, seeking to enforce its coverage rights under Old CNC's liability insurance policies.⁵ Specifically, PCS Nitrogen asserted it was entitled to enforce these rights because (1) Old CNC contractually assigned its insurance rights to benefits and proceeds under the policies to New CNC and (2) it was the corporate successor to Old CNC via de facto merger. Continental Casualty moved for summary judgment; the other carriers joined in this motion. Following a hearing, the circuit court granted summary judgment to Continental Casualty and the other moving insurers. The circuit court found none of the challenged policies were assigned to New CNC because Old CNC did not obtain consent from the insurers as required by the language of the policies and South Carolina law. The court held that because there were no vested claims from prior actions against Old CNC at the time of the assignment, PCS Nitrogen was not entitled to anything under the policies,...