State v. Signo Trading Intern., Inc.

• Decision Date: 23 September 1992
• Parties: , 61 USLW 2196 STATE of New Jersey, Department of Environmental Protection, Plaintiff-Respondent, and The City of Newark, Plaintiff, v. SIGNO TRADING INTERNATIONAL, INC., a corporation; SCI Equipment and Technology, Inc., a corporation; Storage Innovations, Inc., a corporation; Vista International, a corporation; Atlantic Coast Environmental, Inc., a corporation; Resource Technology Services, Inc., a corporation; Jack Colbert, an individual; Charles Colbert, an individual; Robert McKenna, an individual; John M. Speak, Jr., an individual; Eastern Disposal, Inc., a corporation; and Eastern Waste Industries, Inc., a corporation, Defendants, and MORTON SPRINGER & CO., INC., a corporation, Defendant and Third-Party Plaintiff-Appellant, v. SCOVILL, INC., a corporation; Third-Party Defendant, and Federal Insurance Company, a corporation, Third-Party Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 51

130 N.J. 51

612 A.2d 932, 61 USLW 2196

STATE of New Jersey, Department of Environmental Protection, Plaintiff-Respondent, and The City of Newark, Plaintiff, v. SIGNO TRADING INTERNATIONAL, INC., a corporation; SCI

Equipment and Technology, Inc., a corporation; Storage

Innovations, Inc., a corporation; Vista International, a

corporation; Atlantic Coast Environmental, Inc., a

corporation; Resource Technology Services, Inc., a

corporation; Jack Colbert, an individual; Charles Colbert,

an individual; Robert McKenna, an individual; John M.

Speak, Jr., an individual; Eastern Disposal, Inc., a

corporation; and Eastern Waste Industries, Inc., a

corporation, Defendants, and MORTON SPRINGER & CO., INC., a corporation, Defendant and Third-Party Plaintiff-Appellant, v. SCOVILL, INC., a corporation; Third-Party Defendant, and Federal Insurance Company, a corporation, Third-Party

Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 23, 1990.

Reargued Oct. 21, 1991.

Decided Sept. 23, 1992.

Clyde A. Szuch, Florham Park, for appellant (Pitney, Hardin, Kipp & Szuch, attorneys; Clyde A. Szuch, Robert G. Rose, Donald W. Kiel, Ellen M. Boyle, Florham Park, and David H. Harris, Morris Plains, on the briefs).

Rachel Horowitz, Deputy Atty. Gen., for plaintiff-respondent State of N.J., Dept. of Environmental Protection (Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney; Michael R. Clancy, Asst. Atty. Gen., of counsel).

William J. Brennan, III, Princeton, for plaintiff-respondent Federal Ins. Co., a corporation, (Smith, Stratton, Wise, Heher & Brennan, attorneys; William J. Brennan and Wendy L. Mager, of counsel; William J. Brennan, Wendy L. Mager, Princeton, and Lillian E. Brown, Trenton, on the briefs).

William B. McGuire, Newark, submitted a brief on behalf of amicus curiae, Insurance Environmental Litigation Ass'n (Tompkins, McGuire & Wachenfeld, attorneys).

The opinion of the Court was delivered by

CLIFFORD, J.

The Appellate Division held that the "owned property" exclusion in the defendant property-owner's liability insurance policy relieved the third-party-defendant insurance carrier of any obligation to indemnify or defend its insured for its potential liability to the Department of Environmental Protection (DEP) for the cost of cleanup of toxic substances resulting from a fire on the insured's property. State, Dep't of Envtl. Protection v. Signo Trading Int'l, Inc., 235 N.J.Super. 321, 562 A.2d 251 (1989) (Signo Trading ). We granted certification, 118 N.J. 227, 570 A.2d 980 (1989), to review that determination, and now affirm.

I

In April 1983 defendant third-party plaintiff, Morton Springer & Co., owned a warehouse at 140 Thomas Street, Newark. Springer leased space to various tenants, including defendant Signo Trading International, Inc. On April 11th a fire occurred at the warehouse. After the Newark Fire Department had extinguished the fire, Springer hired a contractor to contain wastewater that had accumulated in trenches along the building perimeter. The contractor secured the wastewater in twenty-seven drums, after which DEP ordered Signo to clean up the debris from the floor on which the fire had occurred. By May 3rd the fire-damaged material had been removed from the property pursuant to a hazardous-waste manifest.

Because the fire had revealed the presence of hazardous materials, DEP's representative surveyed the premises to determine the contents of the warehouse. He discovered, in addition to chemicals and hazardous waste, leaking drums and other containers piled in a precarious manner, a non-operational sprinkler system, exposed wiring, a lack of fire extinguishers, and inadequate building security. DEP therefore directed that the premises be cleaned up and the offending materials removed. However, the pace of compliance was so slow that DEP resorted to the filing of a complaint in the Chancery Division in July 1983 to obtain judicial enforcement of the cleanup.

Because the owner and tenants failed to comply with a court order to decontaminate the property under DEP supervision, the trial court, in July 1984, ordered DEP to take exclusive possession and control of the warehouse and to clean up the property with the use of public funds. Acting pursuant to the authority of the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.11z (Spill Act), DEP conducted the cleanup, at a cost of about $3.6 million.

During the cleanup process Springer filed a third-party complaint against Federal Insurance Co. seeking defense and indemnification in respect of DEP's claims. Federal had issued to Springer a primary comprehensive general liability (CGL) policy and an umbrella policy, both of which were in effect on the date of the fire. The CGL policy, which provided coverage for liability of up to $500,000 per occurrence, contained the following pertinent provision:

The company will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages by reason of liability to which this insurance applies, imposed by law or assumed by the insured under any written contract, for bodily injury, property damage or personal injury caused by an occurrence and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury, property damage or personal injury, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient. (Emphases added.)

The policy defined "property damage" as

1. physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or

2. loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

An "occurrence" is defined in the policy as

an event, including continuous or repeated exposure to conditions, which results in * * * property damage * * *.

Excluded from the policy were coverage for "bodily injury or property damage arising out of an event, the result of which was expected or intended from the standpoint of the insured," and, significantly for this appeal, for property damage to "property owned * * * by the insured."

The umbrella policy contained similar provisions and exclusions.

In June 1985 Springer moved for summary judgment on the carrier's duty to defend, and Federal cross-moved for summary judgment. The trial court denied Springer's motion and granted Federal's, concluding in part as follows:

An occurrence in the policy is defined in such a way that basically it comes down to damage inflicted upon the person or properties of people other than the insured. That's essentially what it comes down to.

In our present case we simply do not have any damage inflicted upon a third party or the property of third parties.

* * * * * *

[A]lthough the risk of damage to life and property of third parties was present and was a major concern in ordering this cleanup, there was no occurrence of any such damage to property or injury or death inflicted upon third parties. There simply was not an insured event occurring within the meaning of the policy.

* * * * * *

[A]lthough there is much to be said for reading insurance policies liberally to give coverage to people who need it and might have some reasonable expectation that coverage exists, there is in the long run not much to be said for simply turning policies inside out and standing them on their heads and making them do jobs that they were not designed to do.

This kind of insurance policy was not designed to pay for preventing environmental damage work in the absence of any actual injury inflicted upon third parties or their property, and to simply take this policy and rework it or recast it because right now we could use this $500,000 would not just be unfair and inappropriate so far as this insurer is concerned, but it really amounts to half-baked social engineering that I think we shouldn't engage in. These policies really aren't designed to cover this kind of a situation, and they should not on a casual ad hoc basis be violently torn asunder in order to serve some make-way social policy. Just doesn't make sense.

Thereafter, in March 1988, Springer moved to vacate the trial court's order granting summary judgment to Federal and for summary judgment on Springer's third-party complaint, relying on two Appellate Division decisions handed down after the trial court's earlier ruling: Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J.Super. 516, 528 A.2d 76 (1987), and CPS Chemical Co. v. Continental Insurance Co., 222 N.J.Super. 175, 536 A.2d 311 (1988). Federal resisted the motion on the basis that the cited cases were readily distinguishable in that they both involved continuing and ongoing damage to property of third persons. The trial court readily grasped the factual distinction:

It has never been proved before me, and indeed I don't think it's been alleged, in any way supported by significant evidence, that, in fact, there was migration of the chemical pollutants off the Morton Springer property onto any adjacent properties or actually into any of the waters of the state.

However, the court nevertheless read Broadwell to mandate coverage for avoidance costs, stating:

My view was and is that that is not what these policies are designed to do. But my view also is that the Appellate Division has ruled in this reported case [ (Broadwell ) ] that this policy does cover that kind of loss.

I am obliged as a trial judge to follow the legal rulings of the Appellate Division even though I do not agree with them. And it seems to me that if this defendant insurance company and others wish relief, they'll have to get it either from the Appellate Division or from the Supreme Court.

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