The opinion
ALITO, Circuit Judge,
dissenting in part:
In my dissent from the majority’s separate opinion concerning the jurisdictional issues presented in this appeal, I explain why I believe that the district court lacked jurisdiction with respect to two of three actions that were before it: the Texas Eastern and AEGIS actions. That dissent also addresses the question whether TETCO’s excess insurers are properly parties in the third action: the F & C action. In this opinion, I explain why I believe that the district court’s grant of summary judgment in favor of F & C in the F & C action should be partially reversed.
The F & C action involved the availability of coverage for TETCO’s PCB-related problems under a series of policies that were in effect from 1961 through 1988. All of these policies generally required TETCO to notify F & C “as soon as practicable” after becoming aware of an “occurrence” that appeared likely to trigger coverage. The policies effective on or after May 1, 1973, provide that F & C could deny coverage based on lack of timely notice only if it suffered some degree of actual prejudice. By contrast, under the earlier policies, lack of timely notice allowed F & C to deny coverage without any inquiry into prejudice. The policies in effect from July 1, 1970, through January 1, 1981, also contain a clause excluding coverage for damage caused by pollution unless the pollution was “sudden and accidental.” 1 The earlier *1257 and later policies do not contain this pollution exclusion clause.
Because TETCO’s policies with F &.C provided coverage for damage to the property of others but not to TETCO’s own property, the notice requirement meant, as the district court concluded, that TETCO was obligated to notify its insurers promptly upon learning that PCBs were migrating beyond its own property lines, since off-site migration was the “occurrence” likely to produce claims potentially covered by the policies. 2 The district court held that this notice obligation accrued no later than December 1986 — the month during which TETCO received a report documenting off-site PCB migration. But even if this obligation did not arise until as late as May 1987 — when the EPA demanded cleanup measures aimed at preventing additional off-site migration— TETCO’s notice in August 1987 could not reasonably be regarded as having been given “as soon as practicable.” TETCO is certainly capable of moving faster than this when its own interests are at stake. Thus, I agree, with the district court and the panel majority that TETCO did not comply with its notice obligation. On this basis, I agree that the district court properly granted summary judgment in favor of F & C with respect to those claims falling under the earlier policies that did not require a showing of actual prejudice.
With respect to claims under the more recent policies, however, Texas law allowed coverage to be denied because of late notice only if the insurers suffered actual prejudice. See Maj. Op. #2 at 1253-54. Unlike the majority, I am convinced that summary judgment for the insurers on the issue of actual prejudice was improper. The majority correctly observes that TETCO’s late notice deprived the insurers of the opportunity to participate in the settlement negotiations between TETCO and the EPA that took place during the summer of 1987. I wholeheartedly agree that these were important discussions and that the insurers suffered prejudice if, given the opportunity, the insurers would have participated in or at least seriously considered participating in these discussions. But what if the insurers would not have participated in these discussions or even seriously considered doing so? Could it then be said that they suffered prejudice in any meaningful sense? I do not think so.
Before holding that TETCO’s claims are barred because the insurers were prejudiced, I think we should require at least some support in the summary judgment record indicating that the insurers would or realistically might have availed themselves of the supposedly valuable opportunity that they lost. There is, however, no such support — no affidavits or other support concerning (a) what the insurers would have done in this case had they received prompt notice, (b) these insurers’ usual practices regarding involvement in EPA settlement negotiations in cases such as this, or (c) prevailing practices in the insurance industry as a whole in comparable cases.
In this case, although the insurers’ potential liability was huge they had many promising legal defenses. Under these circumstances, it may well be that the insurers, if given prompt notice, would have summarily concluded that their best strategy was to let TETCO negotiate on its own and then to litigate any subsequent claims for coverage. This is precisely the strategy that the insurers did adopt after they received TETCO’s notice. Without anything in the summary judgment record to show that the insurers would not have taken this approach had they received notice more promptly, I do not think that summary judgment oh this issue was proper.
While I cannot agree that the insurers were entitled to summary judgment on the issue of actual prejudice, I agree that they were entitled to summary judgment with respect to some of the policies on an alternative ground cited by the district court: the presence of a pollution exclusion clause in some of *1258 the policies. According to the district court, summary judgment against TETCO was proper as to these policies because the damage caused by off-site PCB migration was not “sudden and accidental.” For essentially the reasons given by the district court, 3 I believe that this alternative holding was correct. Accordingly, I would affirm the district court’s grant of summary judgment in favor of F & C as to the policies containing both an actual prejudice requirement and this pollution exclusion clause.
In sum, I would affirm in part and vacate in part the grant of summary judgment in favor of F & C in the F & C case, and I would remand that case to the district court for further proceedings.
. The exclusion clause reads:
This policy does not apply ... to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
. Because of my conclusion that the merits of the coverage dispute between TETCO and its excess insurance carriers were not properly before the district court, I need only consider the effect of TETCO’s late notice on F & C. However, since the majority considers the question of late notice with respect to the insurance carriers as a group, and because I agree with the majority that such treatment is appropriate, I write in terms of the effect of late notice on all insurers.
. See, MDL No. 764, 1992 WL 227847 , at *4954, 1992 U.S.Dist. LEXIS 9665, at *166-84 (E.D.Pa. July 9, 1992).