Town of Peterborough v. Hartford Fire Ins. Co.

• Decision Date: 09 June 1993
• Docket Number: Civ. No. 92-50-SD.
• Citation: 824 F. Supp. 1102
• Parties: TOWN OF PETERBOROUGH v. The HARTFORD FIRE INSURANCE COMPANY and Its Affiliates; ITT Hartford Insurance Group.
• Court: U.S. District Court — District of New Hampshire

824 F. Supp. 1102

TOWN OF PETERBOROUGH v. The HARTFORD FIRE INSURANCE COMPANY and Its Affiliates; ITT Hartford Insurance Group.

Civ. No. 92-50-SD.

United States District Court, D. New Hampshire.

June 9, 1993.

David W. Hess, Manchester, NH, Richard R. Fernald, Peterborough, NH, for plaintiff.

Stephen J. Abarbanel, Boston, MA, Kevin M. Fitzgerald, Manchester, NH, for both defendants.

ORDER

DEVINE, Senior District Judge.

This is a petition for declaratory judgment to determine the coverage of certain insurance policies. The petition was filed by plaintiff Town of Peterborough (New Hampshire) on January 17, 1992, and was dismissed by the court for lack of subject matter jurisdiction on March 11, 1993.¹ Subsequently, the court reopened the judgment to permit plaintiff to amend its petition to bring its action under the Declaratory Judgment Act, 28 U.S.C. § 2201(a) (Supp.1993). The court's jurisdiction is based on a diversity of citizenship. 28 U.S.C. § 1332(a)(1) and (c)(1) (Supp.1993).

Presently before the court are (1) plaintiff's motion for summary judgment, (2) defendants' cross-motion for summary judgment, (3) defendants' motion to strike the affidavit of John F. Dudziak, and (4) defendants' supplemental motion for partial summary judgment pursuant to this court's order of April 29, 1993.

1. Background

a. The Depositing of Hazardous Substances at the Site of the Former Town Dump

From approximately 1948 to 1970, certain property located in Peterborough, New Hampshire, was made available to town residents as a dump. This property is now owned by Eastern Mountain Sports, Inc. (EMS). In 1986, hazardous substances were detected in the soils and groundwater on the EMS property and on an adjacent property. On May 24, 1990, EMS filed an action with this court against New Hampshire Ball Bearings, Inc. (NHBB), seeking, inter alia, to recover the cost of cleaning up the contamination at the EMS site. In its complaint, EMS alleged that NHBB used the EMS site "as a disposal ground for hazardous substances in the form of liquid industrial wastes over a twenty-two-year period from 1948 to 1970." Complaint in Eastern Mountain Sports v. New Hampshire Ball Bearings, Inc., Civil Action No. 90-231-L (D.N.H.), filed May 24, 1990, at 1. On June 5, 1991, NHBB brought a third-party action against the Town seeking indemnification or contribution for any amounts adjudged against it on the EMS claims, and also seeking damages for negligence.

Plaintiff has presented deposition testimony of three witnesses, Charles W. Cook, Jr., Donald H. Parkhurst, and Alden S. Brunnell, who claim to have either observed or participated in the dumping of hazardous substances at the site of the former town dump. Mr. Cook testified that he made frequent trips to this site during the period from 1950 to 1970, during which time he alleges his now deceased brother-in-law, George Starkweather, "ran the dump". Deposition Transcript of Charles W. Cook, Jr., at 16-19. Mr. Cook recalled, inter alia, that during the period "from 1953 to about 1955 or '56", he observed William Newhall, now deceased, but at the time an employee of NHBB, emptying a 275-gallon drum tank containing "burnable stuff" into the ground at the site of the former town dump. Id. at 19-21.

Mr. Parkhurst testified that he had been employed by NHBB for a part of each year during the period from 1964 through 1969. Deposition Transcript of Donald H. Parkhurst at 11-18. Mr. Parkhurst testified that during the summers of 1964 through 1967, as an employee in the maintenance area, he assisted in the disposal of certain materials at the town dump. Id. at 11-12. According to Mr. Parkhurst, during this time NHBB

had a sink in the loading dock area that was connected to a storage trailer outside, any of your waste oils, solvents, etc. were poured into the sink, which went into the tank, when the tank was full it was towed down to the dump and the valve was opened and just let it go down over the banking.

Id. at 12. Mr. Parkhurst testified that he participated in the disposal of "perchloroethylene or 1, 1, 1 trichloroethylene", and "the waste product of the oil and solvents". Id. at 17-18. Mr. Parkhurst further testified that NHBB was using "trichloroethylene and perchloroethylene" "at least from 1964 through 1968". Id. at 18-19.

Mr. Brunnell testified that he had been employed by NHBB from "about 1968" to 1980, Deposition Transcript of Alden S. Brunnell at 4, and that his tasks at NHBB included working on a machine involved in the ball bearing production process and general maintenance work, id. at 4-5, including machine cleaning, id. at 7. Mr. Brunnell further testified that during the period from 1968 to 1970, in the course of his employment at NHBB, he observed and participated in the periodic emptying of barrels containing oil, metal shavings, and steel chips at the site of the former town dump. Id. at 10, 19-22.

Plaintiff does not allege that hazardous substances were deposited at the site of the former town dump after 1970.

Plaintiff's expert affiant Peter J. McGlew² states that he has reviewed (1) "The October 1991 ENSR Consulting and Engineering, Site Investigation and the Evaluation of Remedial Alternatives EMS Parcel B Site Peterborough, New Hampshire"; (2) "the EMTEK, Inc. Remedial Investigation and attachments dated April, 1989, for the South Municipal Well Superfund Site"; (3) "various technical documents and texts regarding contaminant transport and behavior in the subsurface environment"; and (4) "transcripts and documents provided by Nixon, Hall and Hess, P.A. regarding the past waste disposal at the EMS Parcel B site." McGlew Affidavit at ¶ 6. Mr. McGlew states

A. The ENSR Consulting and Engineering data and site information collected in the course of the EMS Parcel B Site studies, are sufficient to make a scientifically reasonable conclusion as to the time necessary for VOC contaminants to contaminate Site soil and ground water after disposal. My conclusions are based on the following ENSR data and information including the water ground depths, soil permeabilities, observed volatile organic compound (VOCs) concentrations in Site soil and ground water and the reported presence of dense non-aqueous phase liquids (DNAPLs) by ENSR.

B. The bulk liquid wastes reported to be disposed at the EMS Parcel B Site by local industries would immediately contaminate the Site soils and probably contaminate the underlying shallow ground water within a month from initial deposit.

Id. at ¶¶ 7A-7B.

b. The Alleged Hartford Policies

According to plaintiff's counsel Richard R. Fernald, at an unspecified point in time either on or prior to July 25, 1991,

a review of records stored at the E.A. Bishop Co., Inc. plaintiff's then insurance agent by its employees revealed ledger cards indicating that the Hartford Fire Insurance Company apparently provided comprehensive general liability insurance coverage to the Town of Peterborough under Policy Number 08SMP905678 for the period February 1, 1965 through February 1, 1968 and under Policy Number 08SMP100151 for the period February 1, 1968 through February 1, 1971. No actual policies were found.

Affidavit of Richard R. Fernald at ¶ 4; see also id. at ¶ 5. Further, in Plaintiff's Opposition Memo at page 5, plaintiff alleges that

during discovery, the Town produced the two insurance policies that had been found and a cardboard box of documents evidencing the existence of various other insurance policies issued to the Town by Hartford for the period March, 1964 through December, 1978.

Plaintiff has attached significant portions of two Hartford policies to its Motion For Summary Judgment: (1) Policy No. 04SMP600858, Plaintiff Town Of Peterborough's Motion For Summary Judgment ("Plaintiff's Motion"), Attachment 2; and (2) Policy No. 08SMP100151, Plaintiff's Motion, Attachment 1.³ On the first page of the material identified as part of Policy No. 04SMP600858, the previous policy number of Policy No. 04SMP600858 is identified as "08 SMP 100151". Plaintiff's Motion, Attachment 2, at 1. On the first page of the material identified as part of Policy No. 08SMP100151, the previous policy number of Policy No. 08SMP100151 is identified as "08 SMP 905678". Plaintiff's Motion, Attachment 1, at 1. However, neither party has submitted Policy No. 08SMP905678. Plaintiff has presented no other Hartford documents to support its claim of coverage during the period from March 1964 through December 1978.

In their answer to the original petition, defendants admitted that "the Town of Peterborough is the insured under policy 04SMP600858." Answer Of Hartford at ¶ 2.

The attached portions of Policy No. 08SMP100151 and Policy No. 04SMP600858 submitted by plaintiff each contain a provision stating that

the Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence ...

Plaintiff's Motion, Attachment 1, at 3 (Form MLB-200 appearing among material identified as part of Policy No. 08SMP100151) and Plaintiff's Motion, Attachment 2, at 17 (Form MLB-200, stamped "CFC SAMPLE" and appearing among material identified as part of Policy No. 04SMP600858) (emphasis added). Form 4097 defines "occurrence" as

an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured;

Hartford's Cross-Motion For Summary Judgment, Or, In The Alternative, Opposition To The Town Of Peterborough's Motion For Summary Judgment ("Defendants' Cross-Motion"), Exhibit D at 4; and further defines "property damage" as "injury to or destruction of tangible property," id.

Plaintiff's affiant John F. Dudziak states that, "based upon his review of the documentation provided him and the contents of those documents," it is his...