# Petition for Writ of Certiorari — Certain Underwriters at Lloyd's, London v. Indiana Gas Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1424%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 931 ## Text ie. % ecm 98 271 AvG} 11998 No. In The Supreme Court of the United States ~- October Term, 1997 CERTAIN UNDERWRITERS AT LLOYD’S, LONDON and CERTAIN LONDON MARKET INSURANCE COMPANIES, Petitioners, vs. INDIANA GAS COMPANY, INC., RICHMOND GAS CORPORATION d/b/a INDIANA GAS COMPANY, INC. and TERRE HAUTE GAS CORPORATION d/b/a INDIANA GAS COMPANY, INC., et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR WRIT OF CERTIORARI THOMAS J. QUINN STEPHEN T. ROBERTS MARY ANN D’AMATO Counsel of Record STEVEN A. ACCINELLI Penne MENDES & MOUNT, LLP DAVID L. SHAPIRO 750 Seventh Avenue 1575 Massachusetts Avenue New York, NY 10019 Cambridge, MA 02138 (212) 261-8000 Attorneys for Petitioners 147585 (800) 274-3321 * (800) 359-6859 COUNSEL PRESS QUESTIONS PRESENTED 1. Whether a court may consider, for purposes of determining jurisdiction under 28 U.S.C. § 1332, only the citizenship of the Active Underwriter of a Lloyd’s Syndicate, or whether the citizenship of every defendant Underwriter must be considered; 2. Whether, for purposes of determining jurisdiction under 28 U.S.C. § 1332, the Active Underwriter of a Lloyd’s Syndicate may be designated as a Representative of the other Names of his or her Syndicate pursuant to Fed. R. Civ. P. 23.2. il PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT In addition to the parties named in the caption, the Home Insurance Company, Ranger Insurance Company, St. Paul Fire & Marine Insurance Company and St. Paul Surplus Lines Insurance Company were parties before the court of appeals. Certain London Market Insurance Companies appear as follows: 1. Accident & Casualty Insurance Company of Winterthur 2. Alba General Insurance Company, Ltd. 3. Allianz International Insurance Company, Ltd. 4. Anglo French Insurance Company, Ltd. 5. Argonaut Northwest Insurance Company 6. Anglo Saxon Insurance Association, Ltd. 7. Assicurazioni D’ Italia 8. Assurances Generales de France (UK) [ART 9. Baloise Fire Insurance Company, Ltd. 10. LaBelgique Industrielle 11. Bishopsgate Insurance Company, Ltd. 12. British Aviation Insurance Company, Ltd 13. British Merchants’ Insurance Company, Ltd. 14. British Northwestern Insurance Company, Ltd. 15. British Reserve Insurance Company, Ltd. 16. City General Insurance Company 17. CNA Reinsurance of London, Ltd., now known as CNA International Reinsurance Company, Ltd. 18. Continental Insurance Company, Ltd. 19. Comphania Imperio Lisbon 20. Delta Lloyd Non-Life Insurance Co. 21. Dominion Insurance Company, Ltd. 22. Economic Insurance Company, Ltd. 23. Edinburgh Assurance Company, Ltd. Se tne Pan ii . Elders Insurance Company, Ltd. . European General Reinsurance Company, Ltd. Ennia (United Kingdom) . Excess Insurance Company, Ltd. . Fidelidade Insurance Company also known as Fidelidade Grupo Segurador . FM Insurance Company, Ltd. Assicurazioni Generali di Trieste e Venezia . Groupe Josi per Thilly Re, Belgium . Guildhall Insurance Company Ltd. . Helvetia Accident Swiss Insurance Company . Highlands Insurance Company, Ltd. . Home & Overseas Insurance Co. Ltd. . Iron Trades Mutual Insurance Company, Ltd. (Now known as Iron Trades Insurance Corp. Ltd.) . The Insurance Corporation of Ireland . INSCO, Ltd. Insurance Company of North America (United Kingdom), Ltd. (Aviation account) . International Surplus Lines Insurance Company . Lincoln Insurance Company, Ltd. . Lloyd Italico Assicurazioni . London & Edinburgh General Insurance Company, Ltd. . London & Hull Maritime Insurance Company, Ltd. . Mercantile & General Reinsurance Company plc. . Minster Insurance Company, Ltd., now known as GAN Insurance Company, Ltd. . National Casualty Company . National Casualty Company of America, Ltd. . National Security Fire and Casualty Company . Ned Lloyd Non Life . Norwich Trust Aviation Account . New India Assurance Company, Ltd. . Odyssey Re London, Ltd. . Prudential Assurance Company, Ltd. 55. 56. 57. 58. 39. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. was 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. iv Reasseguradura Nacional de Venezuela Reliance Fire & Accident Insurance Corporation, Ltd. LaReunion Francaise River Thames Insurance Company, Ltd. Road Transport & General Insurance Company, Ltd. Royal Scottish Insurance Company, Ltd. Royale Belge per Thilly Re, Belgium Scottish Lion Insurance Company, Ltd. Southern Insurance Company St. Katherine Insurance Company Ltd. Storebrand Insurance Company (United Kingdom), Ltd. Stronghold Insurance Company, Ltd. Swiss National Insurance Company, Ltd. Switzerland General Insurance Company (UK), Ltd. Swiss Union General Insurance Company, Ltd. Taisho Marine & Fire Insurance Company (UK), Ltd. Terra Nova Insurance Company, Ltd. Threadneedle Insurance Company, Ltd. Trent Insurance Company, Ltd. Turegum Insurance Company, Ltd. Ulster Marine Insurance Company, Ltd. Unionamerica Insurance Company Ltd. Unione Assurances de Paris Utility Services Insurance Company (USICO) Vanguard Insurance Company, Ltd. Victory Insurance Company, Ltd. Westminster Aviation Insurance Group World Auxiliary Insurance Corporation, Ltd. World Marine and General Insurance Company, Ltd. Yasuda Fire & Marine Insurance Company (U.K.), Ltd. Petitioners’ full Rule 29.6 Statement is attached as a lodging and submitted herewith. TABLE OF CONTENTS Page I I og os Se eae a ae wy sawed i Parties to the Proceeding and Rule 29.6 Statement ... ii pe |. hey eres trey Mere aes eae V Beene OR TOG BNO oak eens venvcccs vi CO SO errr e rer eee re eee ee I ROMANE OE -SUPLUIRIOROONE ius vie vis conn ans hesaevewwe l Statutory Provision and Rule Involved ............. I a a Re Ae oe ore) ae yr ee 3 ac, IN 5 6 oo os be SOR kk kates a 2h oa 3 B. Proceedings in the District Court ........... 4 C. Proceedings in the Court of Appeals ........ 8 peasons for Granting Ge WHit 3. 6c ec ences 1] I. The Petition Should Be Granted To Resolve The Circuit Conflict Regarding The Application Of The Diversity Requirement To Lloyd’s SEN NEIIINES — hecan avec ease sick te tere wes 12 Il. The Petition Should Be Granted Because The Court Below Did Not Apply The Real Party To The Controversy Test Articulated By This Court ae ee I NS a soe wast hawk oh a0 14 vi Table of Cited Authorities A. The Petition Should Be Granted Because The Court Below Failed To Properly Consider The Active Underwriters’ Representative Status. .............0.... B. The Petition Should Be Granted So This Court May Clanfy The Standard For Use Of Fol, 3. Soe ee a ce eka Conchisiom cs cs ccok cee RE ws bbe okie aes TABLE OF CITED AUTHORITIES Cases Cited: Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 1S7 (2d Cin. TOR cinta ces ca ews ke as ks Aetna Cas. & Surety Co. v. Iso-Tex Inc., 75 F.3d 216, (S* Cin. 1996) cca cae ae i ah hea Carden v. Arkoma Assocs., 494 U.S. 185 (1990) 00 tk a0 0s Se eee eee 1G. 33: 34,- 45, Certain Underwriters of Lloyd's and Companies v. General Accident Ins. Co. of America, 909 F.2d 228 (7? Cin, 199GE Soe Sars Seas ee ow ck es SDS. Ree 1, 10, 12, ¥3, 14, 15, 17, 18, 39, 20 International Bhd. of Boilermakers v. Local Lodge D354, Ber Pie: Ce Ta CO, I ei ei ieee ncuas 19 John Hayter Underwriting Agency Ltd. v. R.B.H.S. Agencies, [1977] 2 Lloyd’s Rep. 105 (C.A. 1976) Ve Suphican dea eka a WS Wee awe Oko oan oe 15 K. Bell & Assocs. v. Lloyd’s Underwriters, 1998 W.L. 2IAF Che SS ha bec aenk i ee 12 ix Table of Cited Authorities Page Landoil-Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039 (2d Cir. 1990) pe ase ee BE OTAS CAN OAR PEN aS eee banka 18 Logan vy. Lloyd’s Underwriters, 888 F.2d 1391 (6" Cir. SEE e040 G SEES KNS RT AE OER Oe a he CewKs 18 Lowsley-Williams v. North River Ins. Co., 884 F. Supp. EERE, Fas SEE FAS Oe aes eke oo ees aa 4,9 Massey v. State Farm Lloyds Ins. Co., 993 F. Supp. 568 SAAR Me EEE OS re Oe Vee bea Cee a bee es 23 Mitcheson v. Harris, 955 F.2d 235 (4" Cir. 1992) .... 18 National Am. Ins. Co. v. Certain Underwriters at Lloyd's, pngon, 93 1.36 3Z9 (9? Cie. 1996) oo cc cas 18 Navarro Savings Ass'n v. Lee, 446 U.S. 458 (1980) ih hl ae Row he enkin bas 10, 13; 15, 16, 17, 18, 19, 21, 24 Northbrook Excess and Surplus Ins. Co. v. Medical Malpractice Joint Underwriting Ass'n of Mass., 900 ee Oe eee 22 Putnam Resources v. Patzman, 958 F.2d 448 (i* Cir. Ne a Sr a ed ig 17 Quinn-L. Aetna Cas. & Surety Co. v. Iso-Tex. Inc., 75 Se Ee CN Ga BN ss Feed So kkes ae Sek bas 23 Table of Cited Authorities Page Real Asset Mgmt., Inc. v. Lloyd's of London, 61 F.3d Ree Ce Re SE AG Rose ch eed ANE ER AERO KS 18 Roby v. Corp. of Lloyd's, 796 F. Supp. 103 (S.D.N.Y. 1992), aff'd on other grounds, 996 F.2d 1353 (2d Cir. 1993), cert. den., 510 U.S. 945 (1993) ....... 17 Royal Ins. Co. of America v. Quinn-L Capital Corp., 3 F.3d 877 (S" Cir. 1993), cert. den., 511 U.S. 1032 ER GR: Gis ae K Vem un ewes Shaw ene come ar ekenks 23 Sadat v. Mertes, 615 F.2d 1176, 1182 (7" Cir. 1980) . 4 pecs ead aad Mar a AO PR Bh 17a Appendix B Indiana Department of Environmental Management (IDEM) in an enforcement action relating to the Shelbyville site. Purportedly Indiana Gas timely notified its insurers (some of the defendant insurers in this action) but those insurers failed and refused to indemnify Indiana Gas. A separate enforcement action was instituted against Indiana Gas by IDEM, this time relating to groundwater contamination at a former manufactured gas plant (MPG) at Lafayette. Indiana Gas defended the enforcement action and conducted remedial activities in compliance with orders issued by IDEM. Once again, after notifying the insurers, the insurers refused to defend the action or indemnify Indiana Gas in accordance with their policies. Subsequent to those actions, Indiana Gas conducted a preliminary assessment/site investigation at former MGP sites in Marion, Bedford, Greencastle, Huntington, Seymour, Terre Haute and Richmond. Those investigations were completed in March of 1995 revealing contamination at each of the seven sites.' At least with respect to the Richmond, Terre Haute, Bedford and Greencastle sites, the level of contamination exceeds regulatory standards which could require further response or remediation. In November of 1992, Indiana Gas notified St. Paul, Aetna, Home and the London Market Insurers of the potential loss at the Marion, Bedford, Greencastle, Huntington, Seymour, Terre Haute and Richmond former MGP sites. In that correspondence, Indiana Gas requested that the defendants agree to reimburse Indiana Gas for all costs incurred in connection with the investigation of the MGP sites together with the cost of any remediation of any potential property damage pertaining to the sites. The insurers refused to acknowledge their coverage for these potential costs. 1. It would appear that defendants’ own expert agreed that those sites were in fact contaminated. 18a Appendix B Plaintiffs filed suit in this Court on April 14, 1995. Count I alleges that “[d]efendants have failed to honor their contractual obligation: to (1) defend Indiana Gas; (2) pay in full the defense costs and expenses of Indiana Gas; and/or (3) indemnify Indiana Gas for damages and/or expenses and/or its losses and obligations with respect to the claims alleged. . .” (complaint § 95 & 98) in the Shelbyville and Lafayette actions.” In Count 2, plaintiffs seek a declaratory judgment that the insurers have failed in their duty to defend and indemnify with respect to not only the Shelbyville and Lafayette sites but also the Bedford, Greencastle, Richmond, Huntington, Marion, Seymour, and Terre Haute sites. At the time of the filing of the complaint, no third party (including the IDEM or the Environmental Protection Agency (EPA)) had made any claim, issued any order, or filed any action against Indiana Gas regarding the Bedford, Greencastle, Huntington, Marion, Seymour, Terre Haute or Richmond MGPs. Nor had any claim or administrative orders been threatened regarding any of these seven sites. Application of Law As indicated at the outset, St. Paul and others have filed a motion to dismiss the declaratory judgment claim as it relates to the Richmond site because this Court lacks subject matter jurisdiction. In its joinder of that motion, Aetna and others contend the same with respect to the Bedford, Greencastle, Huntington, Marion, Seymour and Terre Haute sites. Because this court is of the view that there is no case or controversy with respect to those sites, the motion to dismiss will be granted. 2. Indiana Gas alleges in the complaint that it has spent in excess of three million dollars relating to the remedial activities at the Lafayette site and in excess of two million dollars on the Shelbyville site. 19a Appendix B “ “The judicial power does not extend to abstract questions.’ ” Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 242, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1952) (quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 324, 56 S.Ct. 466, 472, 80 L.Ed. 688 (1936)). Rather, federal courts can only resolve actual “cases” and “controversies.” U.S. Const. art. III, § 2. The existence of a case or controversy is a prerequisite to all federal actions, including those for injunctive and declaratory relief. Skelly Oil Co. v. Phillips Petroleum, 339 U.S. 667, 671-72, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950). Consonant with Article III, the Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction . . . any Court in the United States, upon the filing of an appropriate pleading may declare the rights and other legal relations of any interested party seeking such a declaration.” 28 U.S.C. § 2201(a). “[A] justiciable controversy is ... distinguished from a difference or dispute of a hypothetical or abstract character; [or] from one that is academic or moot.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). “The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.” Id. To determine whether there is a “controversy,” the court must “look to the state of affairs as of the filing of the complaint; a justiciable controversy must have existed at that time.” International Harvester v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir. 1980). “At first blush, the existence vel non of an actual controversy would not appear to lend itself to discretionary disposition. Either there is an actual controversy or there is not.” Certain Underwriters at Lloyd’s v. St. Joe Minerals Corp., 90 F.3d 671, 675 (2nd Cir.1996). “ ‘The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is 20a Appendix B necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy.’ ” Id. (quoting, Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)). The notion that the difference between an abstract question and a controversy is one of degree, and that it is not possible to fashion a precise test distinguishing between the two, can be seen in cases such as this where an insured seeks a declaratory judgment against its insurer relating to remedial actions or clean up costs at a contaminated site. In the present matter, defendants, relying primarily upon the United States Court of Appeals for the Eleventh Circuit’s decision in Atlanta Gas & Light v. Aetna, 68 F.3d 409 (11th Cir.1995) and the Eighth Circuit’s decision in Gopher Oil Company v. Bunker, 84 F.3d 1047 (8th Cir. 1996) contend that this case is not justiciable. The plaintiffs, on the other hand, place heavy reliance on the United States Court of Appeals for the Third Circuit’s decision in Riehl v. Travelers Insurance Co., 772 F.2d 19 (3rd 1985) and the Eighth Circuit’s opinion in Aetna Casualty and Surety Co. v. General Dynamics Corp., 968 F.2d 707 (8th Cir.1992) for the opposite proposition. Those decisions, which appear to arrive at seemingly divergent results, however, are reconcilable when the facts presented are closely examined. Moreover, when the facts presented here are compared with those in the above-cited decisions, it is clear that this case is more akin to Atlanta Gas and Gopher Oil than it is to Riehl and General Dynamics. In Atlanta Gas, the insured brought an action for declaratory judgment asking the court to determine that the insurer had a duty to defend and indemnify it for cleanup costs at its manufactured gas plants. On appeal, the United States Court of Appeals for the RRA ite Ciena islan. ch Ae 21a Appendix B Eleventh Circuit determined, sua sponte, that there was no justiciable controversy writing: The district court made no determination that a justiciable controversy existed when the complaint was filed; the record would not support such a finding. Not only had the insurers not yet received the notice, no one knew exactly what had to be cleaned up, or how much the cleanup would cost. While it is not necessary to know each of these factors with certainty in order to seek declaratory relief, when AGL filed its complaint, it was not clear that state and federal environmental agencies would ever require cleanups at any of AGL’s former MPG sites. The record demonstrates that the regulatory climate was evolving when AGL filed its suit: what actions would be required by regulators was uncertain. At the time the complaint was filed, GEPD had concluded that AGL’s Georgia site posed no threat to public health, and FDER had recommended only ‘additional site screening’ at the Sanford, Florida site. No then-owner of an MGP site had called upon AGL to reimburse them for cleanup costs or to clean up wastes itself. No lawsuits had been filed against AGL, either by owners of former MGP sites or by adjacent property owners. With so many material facts dependent upon future contingencies, it would be impossible to resolve all the issues relative to the timeliness of notice ina way that would do justice to the parties. Id. 68 F.3d at 415. Similarly, in Gopher Oil, the United States Court of Appeals for the Eighth Circuit upheld the dismissal of claims seeking declaratory judgment of potential liabilities of two parties with respect to environmental cleanup costs at a site since there 22a Appendix B were “[n]Jo facts [to] indicate an immediate threat of either MERLA [Minnesota Environmental Response & Liability Act] or tort liability.” Id. 84 F.3d at 1051. Thus, in both Atlanta Gas and Gopher Oil, there was no controversy within the meaning of Article III. Conversely, a justiciable controversy relating to the costs of cleaning up contaminated sites was found to exist in both Riehl and General Dynamics. In Riehl, an insured brought an action seeking a declaration that certain insurance policies covered expenses of cleaning up a toxic dump site. Although the insured had received notice from the EPA that he was a responsible party under the Comprehensive Environmental Response Compensation Liability Act (CERCLA) and as such would be assessed the expense of cleaning up the site, as of the time of filing of suit no legal proceedings had been instituted against him by either the Pennsylvania Department of Environmental Resources or the EPA. In holding that the matter was justiciable, the United States Court of Appeals for the Third Circuit wrote: In order for a case to be justiciable, the salient facts must be real, not hypothetical. Our review of justiciability is plenary. The problem of justiciability is especially troublesome in a declaratory judgment action, where the court may be asked to decide a case based on events that have not yet and may not occur.... Where, however, the essential facts establishing a right to relief, including declaratory relief, have already occurred, the case is justiciable. . . . From the summary judgment record before us, it appears that all relevant events have already occurred, and the case thus appears justiciable. The dumping of the wastes and the leaching off the property of these | chemicals have apparently already transpired. . . . a eaeemeaatitiiinimiaiaaiiaiiaiiaaiiaaiidiiiaiaalal 23a Appendix B The only events which have yet to occur are the expenditures of the funds by Riehl for clean-up and the entry of judgment imposing liability on Riehl for the toxic waste damage. However, neither immediate liability for damages, nor a liquidation to the extent of an insurer’s indemnification obligation is necessary in this Circuit to establish a justiciable controversy. In ACand$S v. Aetna Casualty & Surety Co., 666 F.2d 819 (3rd Cir.1981), this court found justiciable the question of liability insurance coverage for exposure to asbestos even though not all of the carriers against whom declaratory relief was sought were as yet implicated by an actual suit against the insured. Since all relevant events appear from the record to have occurred, we hold that this case is ripe for adjudication. Id. 772 F.2d at 22-23 (footnote omitted). Similarly, in General Dynamics Corp., an insurer brought an action against its insured seeking declaratory relief as to its obligation to defend and indemnify the insured in connection with claims involving environmental pollution. At issue were sixteen sites, however, the district court held that with respect to four of those sites the case Was not ripe since no suit had been filed nor any settlement achieved at the four sites. In reversing that aspect of the district court’s decision, the United States Court of Appeals for the Eighth Circuit wrote: Aetna also contends that the district court erred by holding that because no suits had yet been filed nor any settlements reached with respect to four of the sixteen sites, Aetna’s declaratory judgment action was not ripe for adjudication as to those sites. 24a Appendix B Aetna argues that since General Dynamics had made a clear demand for payment of defense and indemnity costs with respect to each of the four sites and because Aetna disputed those demands, there is a live justiciable controversy between the parties sufficient to invoke the jurisdiction of the district court. ... General Dynamics does not address this issue on appeal; apparently it concedes that the district court’s decision was in error. We agree with Aetna that a live justiciable controversy exists between the parties and hold that Aetna’s suit is ripe with respect to the four sites. Id., 968 F.2d at 711 (citation omitted). In the present matter, this case is similar to both Atlanta Gas* and Gopher Oil in that at the time the suit was filed no third party had made any claim or filed any litigation regarding the sites in issue; neither the state environmental agency nor the EPA had issued any notice or order or threatened any claim regarding those sites; and it is not clear whether either the state or federal government would ever require a clean-up since no notices, orders, claims, litigation or directives have been issued regarding the sites. Those factual similarities between Atlanta Gas and Gopher Oil also make this case dissimilar from the decisions in Riehl and General Dynamics because in Riehl plaintiff had “received notice that the EPA would commence clean-up of the site, and that all 3. Indeed save for the fact that the plaintiff in Atlanta Gas failed to give notice to its insurer until at the time of filing suit, this case is virtually identical to Atlanta Gas. While this failure to give notice was a factor in the court’s determination that the case was not justiciable, it was but one factor. Most tellingly, however, was the fact that “it was not clear that state or federal environmental agencies would ever require clean ups at any of AGC’s former MGP sites.” 68 F.3d at 415. © Pty art be oy cata ie 25a Appendix B expenses of clean-up would be assessed against Riehl as a ‘responsible party’ under the comprehensive Environmental Response Compensation Liability Act of 1980 (‘CERCLA’), 42 U.S.C. § 9607(a),"* 772 F.2d at 21, and in General Dynamics, of the sixteen sites at issue, the insured had been “served with lawsuits concerning environmental contamination at seven sites and with letters from federal and state environmental protection agencies or from private parties demanding that it clean up environmental wastes at nine other sites.” 968 F.2d at 709. Here, no such lawsuits have been filed nor have demands been made that the Richmond, Bedford, Greencastle, Huntington, Marion, Seymour and Terre Haute sites be clean up or remediated. As such, there is no controversy with respect to those sites and accordingly no justiciable issue is presented to the Court. In arriving at the foregoing conclusion, this Court is not unmindful of the Seventh Circuit’s decision in Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 681 (7th Cir. 1992) and its language to the effect that “Article III requires only a probabilistic injury” — which present plaintiff claims to be “dispositive.” (Ans.Br. p. 10). Rather than being “dispositive,” this Court is of the view that that case is distinguishable. There, the insured had in fact been sued by a third party before 4. On November 20, 1995, Timothy R. Johnson of the IDEM sent a letter to Indiana Gas which indicates that IDEM is “assessing” all former manufactured gas plants in Indiana. That letter, however, does not create a case or controversy for two reasons. First, it does not give any orders or directives to Indiana Gas to remediate or further investi gate its former manufactured gas plants. Rather, it merely requests general information about former manufactured gas plant properties. Second, the letter has no bearing on this case since it was sent over seven months after this lawsuit was filed and, as indicated previously, justiciability is evaluated based on the state of affairs at the time of the filing of the complaint. 26a Appendix B the declaratory judgment action regarding coverage was brought and the only remaining questions were whether the insured would win or lose the suit and the amount of the judgment. While indicating that cases such as Wooten v. Loshbough, 951 F.2d 768, 769 (7th Cir.1991) had spoken in terms of “probabilistic injury,” the court in Bankers Trust indicated that “this doesn’t mean that any probability, however slight, is enough to permit a suit to be maintained 1n federal court. We are dealing with matters of degree.” 959 F.2d at 681.° Since the insured’s liability (or the possibility that judgment would be less than the coverage amount) was a contingency which did not take the case out of Article III's grant of jurisdiction, the mere possibility that the declaratory relief requested may be rendered moot by the proceedings below was simply a factor relevant to the district court’s exercise of equitable discretion to grant or withhold declaratory relief. Here, unlike Bankers Trust, but like Atlanta Gas, there has been no suit filed against the plaintiffs and no indication or notice that that will occur with respect to the sites in question. At present, the controversy alleged in plaintiffs’ complaint for declaratory judgment relating to those sites is nothing more than hypothetical: if a government agency issues an order or notice; or if an agency requires plaintiffs to take some action with regard to the sites; or if a third party makes a claim; or if a third party files litigation against plaintiffs based on contaminants at those sites; or if plaintiffs incur costs to clean up the sites, there may be coverage for those currently non-existent claims, orders, directives or costs. Such are now mere possibilities, not probabilities, and accordingly the motion to dismiss must be granted. 5. In its opimion, the court pointed out that many cases in the Seventh Circuit have been read as indicating “that a suit to determine an insurer's obligation to indemnify its insured is premature until the insured has been determined to be liable to somebody,” 959 F.2d at 680 (collecting cases), and that “[o]ther circuits take a more liberal view.” Id. The Court went on to note, however, that “our cases state a general rule rather than an absolute one.” Id. 27a Appendix B Conclusion On the basis of the foregoing, the “Motion to Dismiss Plaintiff's Claims for Declaratory Judgment as to the Richmond Site for Lack of Jurisdiction” filed July 10, 1996, by defendants St. Paul Fire & Marine Insurance Company, St. Paul Surplus Lines Insurance Company, Ranger Insurance Company, those London Market insurers severally subscribing to policies of excess insurance in favor or Richmond Gas Corporation, and Home Insurance Company is GRANTED. Likewise, plaintiffs’ request for declaratory judgments with respect to the manufactured gas plants at Bedford, Greencastle, Huntington, Marion, Seymour and Terre Haute are DISMISSED. Said dismissals are WITHOUT PREJUDICE. SO ORDERED. 28a Appendix B INDIANA GAS COMPANY, INC., Richmond Gas Corporation d/b/a Indiana Gas Company, Inc. and Terre Haute Gas Corporation d/b/a Indiana Gas Company, Inc., Plaintiffs, AETNA CASUALTY & SURETY COMPANY, Connie Lee Insurance Company, Continental Casualty Company, Continental Insurance Company, Greenwich Insurance Company, Home Insurance Company, Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies, North River Insurance Company, Ranger Insurance Company, St. Paul Fire & Marine Insurance Company, St. Paul Surplus Lines Insurance Company and the Travelers Company, Defendauts. No. 1:95-CV-101. United States District Court, N.D. Indiana, Fort Wayne Division. Oct. 2, 1996. + * aa MEMORANDUM OF DECISION AND ORDER WILLIAM C. LEE, District Judge. This matter is before the Court on defendant Ranger Insurance Company’s July 10, 1996, “Motion for Partial Summary Judgment 29a Appendix B Concerning ‘Property Damage During the Policy Period,’ ” a motion in which other defendants have joined. Plaintiffs responded to that motion on July 31, 1996, to which Ranger Insurance replied on August 9, 1996. For the following reasons, the motion for partial summary judgment will be granted. Factual Background Ranger issued Comprehensive General Liability policies to Richmond Gas Corporation for the period from 1975 to 1987 and also issued an Excess Liability policy and Commercial Umbrella Liability for the period 1975-1976. The Ranger policies, and those of the defendants who have joined in the motion, all contained language identical or substantially similar to the effect that the insurers agreed “to 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.” “Occurrence” is then defined as “an accident, including continuous or repeated exposure to conditions, which results in property damage neither expected nor intended from the standpoint of the insured.” In turn, “property damage” is defined as “physical injury to or destruction of tangible property which occurs during ti.e policy period.” Indiana Gas has identified three potential sources of contamination associated with the manufactured gas plants (MGP): (1) land disposal of MGP waters; (2) manufactured gas plant operations; and (3) decommissioning activities. There was contamination at each of the sites in question from the time that the contaminants first entered the groundwater and plaintiffs maintain that that contamination continues to the present day. The specific sources of groundwater contamination at each site have been identified by Indiana Gas’s hydrogeology expert, 30a Appendix B Dr. Thomas Prickett. Dr. Prickett conducted a hyrodgeologic study of groundwater flow and contaminant migration. According to him, the study provided the “most certain indication as to when and how [MGP] chemicals impacted the groundwater and migrated off the MGP sites.”' With respect to each of the sites which are at issue in the presently pending motion for partial summary judgment, the following is undisputed: (1) The Seymour Site. An MGP was in operation from 1886 to 1931 and the plant was substantially decommissioned prior to 1945. Dr. Prickett concluded that the groundwater at the site was contaminated by chemicals from the probable site sources by no later than 1954, and that contamination was off-site by no later than 1954. (2) The Bedford Site. The MGP was in operation from 1900 to 1940 and substantially decommissioned prior to 1945. Dr. Prickett concluded that the groundwater at the site was contaminated by chemicals from the probable site by no later than 1954 and that contamination was off-site by no later than 1954. (3) The Huntington Site. The MGP was in operation from 1883 to 1926 and substantially decommissioned by 1945. Dr. Prickett identifies the sole source of groundwater contamination at the site as the “dismantling of [a] holder and filling the base with MGP materials about 1937.” Contaminants had entered the groundwater and moved off-site in 1937. |. To do this, Dr. Prickett focused on “the most widespread, fastest moving and reoccurring chemicals at the site.” 5c i neat 3la Appendix B (4) The Lafayette Site. An MGP was in operation from 1852 to 1937 and the plant substantially decommissioned by 1945. Releases of hazardous substances at the site resulted in off-site damage to soil and/or groundwater no later than 1952. (5) The Shelbyville Site. An MGP was in operation from 1925 to 1946. Dr. Prickett concluded that the groundwater at the site was contaminated by chemicals from the probable site sources by no later than 1925 and that contaminants had moved off-site by no later than 1940. (6) The Richmond Site. An MGP was in operation from 1855 to 1941. Dr. Prickett concluded that the groundwater at the site was contaminated by chemicals from the probable site sources by no later than 1914. and that contaminants had moved off-site by no later than 1919. el (7) The Terre Haute Site. The MGP was in operation from 1886 until the 1930s. Dr. Prickett concluded that the groundwater at the site was contaminated by chemicals from the probable site sources by no later than 1899, and that contaminants had moved off-site by no later than 1924. Thus with respect to all of the foregoing sites, the groundwater had become contaminated and the contaminants had begun to move off-site by no later than the mid-1950s. There is, however, evidence to suggest that the groundwater from the former MGPs is stil] running into streams and rivers located near at least six of the sites. 32a Appendix B Application of Law As indicated at the outset, this matter is presently before the Court on Ranger’s motion for partial summary judgment concerning the issue of whether any property damage occurred during the relevant policy periods, a motion in which several of the other defendants have joined. After a review of the summary judgment standards, the parties arguments will be addressed. A. Summary Judgment Standards Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent’s claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and in which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party’s position is not sufficient to successfully oppose summary judgment; “there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. at 2512; Inre Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); ani As ile omar ee 33a Appendix B Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists “where the record as a whole could not lead a rational trier of fact to find for the nonmoving party.” Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the “pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact.” C elotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56( c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). nie So that the district court may readily determine whether there are genuine issues of material fact, under Local Rule 56.1, the moving party is obligated to file with the court a “Statement of Material Facts” supported by appropriate citation to the record to which the moving party contends there is no genuine issue. In addition, the non-movant is obligated to file with the court a “Statement of Genuine Issues” supported by appropriate citation to the record all material facts to which the non-movant contends there are exists a genuine issue necessary to be litigated. See 34a Appendix B Waldridge v. American Hoechst Corp. et al., 24 F.3d 918 (7th Cir.1994). In ruling on a summary judgment motion the court accepts as true the non-moving party’s evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-51, 106 S.Ct. at 2511. However, “[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained,” and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat’l Bank, 704 F.2d 361, 367 (7th Cir. 1983). Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute because the issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512. B. Property Damage During the Policy Period “Under Indiana law, the interpretation of an insurance policy presents a question of law to be decided by the court.” Cincinnati Ins. v. Flanders Elec. Motor Service, 40 F.3d 146, 151 (7th Cir.1994) (citing Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind. 1992). “The 35a ~ Sn 1 aie a Appendix B insured has the initial burden of proving coverage under an insurance policy.” Flanders at 151 (citing Southbend Escan Corp. v. Federal Ins. Co., 647 F.Supp. 962, 966 (N.D.Ind. 1986)). Here, there is no dispute that plaintiffs’ right to coverage under the insurance contracts is only “triggered” if there was property damage during an insurer’s policy period. “Trigger of coverage” has been defined as follows: “ “[T] rigger of coverage’ has been used by insureds and insurer alike to denote the circumstances that activate the insurer’s defense and indemnity obligations under the policy. The term ‘trigger of coverage’ should not be misunderstood as a doctrine to be automatically invoked by the court to conclusively establish coverage in certain categories of cases, or under certain types of policies. The word ‘trigger’ is not found in the CGL policies themselves. . . . Instead, ‘trigger of coverage’ is a term of convenience used to describe that which, under the specific terms of an insurance policy, must happen in the policy period in order for the potential of coverage to arise. The issue is largely one of timing — what must take place within the policy’s effective dates for the potential of coverage to be ‘triggered.’ ” Montrose Chem. Corp. v. Admiral Ins. Co., 10 Cal.4th 645, 42 Cal.Rptr.2d 324, 327 n. 2, 913 P.2d 878, 881 n. 2 (1995). Four principal theories regarding trigger of coverage have been recognized: If coverage is triggered at the time that personal injury or property damage becomes known to the victim or 36a Appendix B property owner, the approach is identified as the ‘manifestation theory.’ If coverage is triggered when real personal injury or actual property damage first occurs, the approach is called the injury in fact theory. If coverage is triggered when the first exposure to injury- causing conditions occur then the court is said to have chosen the ‘exposure theory.’ Finally, if coverage is triggered in a manner such that insurance policies in effect during different time periods all impose a duty to indemnify, then the approach is labeled a ‘continuous’ or ‘multiple’ trigger theory. Dow Chemical Co. v. Associated Indemnity Corp., 724 F.Supp. 474, 478 (E.D.Mich.1989) (citations omitted).* Given that there are at least four approaches to determine when coverage is “triggered,” courts have taken different views as to when coverage attaches in the context of environmental contamination cases. For example, just last year, in Montrose, supra, the California Supreme Court determined that the proper approach is the continuous injury trigger theory. Montrose, 42 Cal.Rptr.2d at pp. 348-50, 913 P.2d at pp. 902-04; see also Chemical Leaman Tank Lines, Inc. v. Aetna Casualty & Surety Co., 89 F.3d 976, 994-95 (3rd Cir. 1996). Conversely, and also last year, the Minnesota Supreme Court in SCSC Corp. v. Allied Mutual Insurance Co., 536 N.W.2d 305, 318 (Minn.1995), employed the actual injury theory in determining how to allocate damages resulting from a spill which lead to continual leaching. See also, Armotek Industries v. Employers Ins. of Wausau, 952 F.2d 756 (3rd Cir.1991). 2. The “continuous”’ or “multiple” trigger theory has also been referred to as the “triple trigger theory” because it expresses the notion that the injury occurs during each of three phases of environmental contamination — exposure, exposure in residence and manifestation. | | 37a Appendix B In the present matter Indiana Gas, not surprisingly, argues that the “multiple trigger” theory should apply here so that it can seek coverage under policies which became effective long after the manufactured gas plants had been decommissioned. In support of that position, Indiana Gas points to Eli Lilly & Co. v. Hore Ins. Co., 482 N.E.2d 467 (Ind.1985) as the controlling Indiana law. In this Court’s view, Eli Lilly, a case involving DES, is not dispositive in this environmental case. In Dana Corporation v. Hartford Accident & Indemnity Co. et al., No. 49DO1-9301-CP- 0026 (Marion Super. Sept. 10, 1996), the Marion Superior Court cogently indicated why Eli Lilly can be limited to its facts: “[T]he Indiana cases addressing the trigger issue does 10t require the Court to adopt a continuous trigger in this case. Eli Lilly & Co. v. Home Ins. Co., 482 N.E.2d 467 (Ind.1985), the principal authority relied on by [plaintiff], adopted a continuous trigger in the context of progressive, DES-related diseases. That case is distinguishable, however. The Court in Eli Lilly found that the relevant policy language was ambiguous as it relates to DES claims — it was not clear whether the initial in utero exposure to DES (which must have caused some injury, since the exposure was not repeated, and allegedly caused numerous diseases 20 years later) was the relevant injury for coverage purposes, or whether the subsequent manifestation of 3. The decision in Dana was brought to this Court’s attention as an attachment to a letter for counsel from London Market Insurers dated September 16, 1996. Indiana Gas, ina letter to this Court dated September 19, 1996, addressed the issues raised in the Dana decision. Both letters have been made a part of the record in this cause. CO 38a Appendix B disease was the relevant injury. In the environmental property damage context, however, there is no such ambiguity — it is not a question of which injury counts, but of when injury results. The Court in Eli Lilly did not suggest that coverage was first triggered when a doctor prescribed DES, or when a mother purchased the drug. Instead, the trigger period began at the date of the earliest actual injury.” Id. at pp. 351-52, 913 P.2dat pp. 905-06 (italics in original); see also Armotek supra at 763 (discussing the “unique character” of the problem created by policy language in the context of diseases with long latency periods as opposed to chemical contamination cases). This Court agrees with the foregoing language in Dana. Further support for this Court’s conclusion that Eli Lilly is not dispositive in this action can be found in the Indiana Court of Appeals post- Eli Lilly decision of Great Lakes Chemical Corp. v. International Surplus Lines Ins. Co., 638 N.E.2d 847 (Ind.App.1994). There, the court addressed the trigger issue in the context of a case involving the pesticide EDB. The court in Great Lakes indicated that it agreed with the “general rule” that “the time of the occurrence of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed but the time when the complaining party was actually damaged.” Id. at 854. Thus, on the facts before it, the court wrote that “the general rule simply holds that the time when the EDB pesticides were manufactured is not the time of the occurrence which triggers coverage, but the trigger for coverage is the time when the complaining party was damaged. Here, the City was damaged when the EDB pesticides were applied to the soil and contaminated the groundwater.” Id. 39a Appendix B Likewise here, the damage occurred when the property was contaminated, an event which occurred long before any of the relevant policies were issued. Indiana Gas’s own expert, Dr. Prickett, admitted that the groundwater underlying each of the seven sites was contaminated and had contaminated third party property before the inception of the policies. No pollutants which could have caused third party property damage were ever discharged at the sites during any policy period because there were no MGP operations during those periods (the plants had been decommissioned) and Dr. Prickett has indicated that the sources of contamination were in existence and had already contaminated the groundwater and third party property before any policy period. Thus, under Great Lakes, present defendants’ policies can not be triggered because the third party damage occurred before any policy period. In reaching the foregoing conclusion that there was no property damage which occurred during the policy period as required by the policies, this Court is not unmindful of Indiana Gas’s argument to the effect that there is evidence to Suggest that groundwater from the former manufactured gas plants is running into bodies of water which surround the sites. This, however, does not salvage their claim. In Inland Waters Pollution Control, Inc. v. National Union Fire Insurance Co., 997 F.2d 172 (6th Cir.1991),* the United States Court of Appeals for the Sixth Circuit was presented with, and rejected, a similar argument. There, drums containing liquid wastes were crushed during the first two months of 198] allowing the wastes to leak into the soil. An examination six years later by the 4. This decision was originally unpublished but was subsequently published as an appendix to Inland Waters Pollution Control Inc. vy. National Union Fire Ins. Co., 997 F.2d 172 (6th Cir.] 993). 40a Appendix B state department of natural resources revealed significant contamination. The policyholder sued its insurer under a policy which became effective some six months after the leak had occurred arguing that “the definition of ‘occurrence’ in the policies [was] broad enough to cover the damage to [the] property which was continually occurring during the policy periods as contaminants migrated through the soil and groundwater.” Id. p. 182. The policy at issue (similar to that here) provided that coverage is triggered by property damage which occurred during the policy period. With respect to the allegation of continual leakage into the groundwater, the Sixth Circuit wrote: Concerning damage to the groundwater, we hold that the district court erred by granting summary judgment because there is a genuine issue of material fact regarding when the groundwater first became contaminated. Although Inland Waters allowed liquid waste to escape into the soil in January or February 1981, it cannot be determined from the present record the length of time required for the contaminants to filter through the soil and reach the groundwater. If evidence establishes that the groundwater was first contaminated after August 1981, there could be coverage under the occurrence policy, and National Union could be liable for breach of the duty to defend. On the other hand, if evidence established that the groundwater first became contaminated before August 1981, there would be no coverage, and, hence, no duty to defend. Accordingly, we reverse and remand the case to the district court for resolution 4la Appendix B of the question of fact as to when the groundwater first became contaminated. Id. at p. 187 (italics added) Here, there is no dispute that at all of the sites in question, the contamination occurred and the groundwater was affected prior to the policies at issue. While there still may be some continuing effect on the groundwater, there is no evidence that any new pollutants that could have damaged third party property were ever added to the environment during any of the policies at issue. Cf. Armotek supra 952 F.2d at 763 (regarding failure “to prove that separable injury to property occurred after 1979 as the chromic acid migrated underground”). Conclusion In light of the foregoing, defendant Ranger Insura*ce Company’s July 10, 1996, “Motion for Partial Summary Judgment Concerning ‘Property Damage During the Policy Period’” is GRANTED. Summary Judgment is also entered on this issue in favor of all defendants who have joined in that motion. 5. A similar result was reached in SCSC Corp. supra. There, the actual injury to third party property occurred as a result of a 1977 spill. Despite the “continual leaching of chemicals from the soil into the groundwater,” the Minnesota Supreme Court reversed the trial court’s application of a “multi-year vertical trigger” which would have triggered ail policies on the risk during the leaching and found that only the policies in effect in 1977 were liable. 536 N.W.2d at 318. 42a Appendix B INDIANA GAS COMPANY, INC., et al., Plaintiffs, Vv. AETNA CASUALTY & SURETY COMPANY, etal., Defendants. Civil No. 1:95cv101. United States District Court, N.D. Indiana, Fort Wayne Division. Oct. 2, 1996. * * * ORDER WILLIAM C. LEE, District Judge. This matter is before the court on the defendants’ (London Market Insurers) “Motion for Summary Judgment on All Policies for Plaintiffs’ Failure to Establish a Fortuitous Accident or Occurrence”, filed on July 10, 1996.' The parties completed briefing the motion on August 9,1996. — 1. Other defendants have joined defendant London Market Insurers’ motion for summary judgment. 43a Appendix B Summary Judgment Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent’s claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a nartv “who fails to make a showing sufficient to establish the existence cfan element essential to that party’s case, and in which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party’s position is not sufficient to successfully oppose summary judgment; “there must be evidence on which the jury could reasonably find for the plaintiff.” Id. In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists “where the record as a whole could not lead a rational trier of fact to find for the nonmoving party.” Juarez v. Ameritech Mobiiz Communications, Inc., 957 F.2d 317, 322 (7th Cir.1 992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986)). 44a Appendix B Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the “pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any,” which demonstrate the absence of a genuine issue of material fact, Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. The non- moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). So that the district court may readily determine whether genuine issues of material fact exist, under Local Rule 56.1, the movtng party is obligated to file with the court a “Statement of Material Facts” supported by appropriate citation to the record to which the moving party contends no genuine issues exist. In addition, the non-movant is obligated to file with the court a “Statement of Genuine Issues” supported by appropriate citation to the record outlining all material facts to which the non-movant contends exist that must be litigated. See, Waldridge v. American Hoechst Corp. et al., 24 F.3d 918 (7th Cir. 1994). In ruling ona summary judgment n motion the court accepts as true the non-moving party’s evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. Furthermore, in determining the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controveried in the “Statement of Genuine Issues” filed in opposition to the motion. L.R. 56.1 MMe eke oy 4Sa Appendix B Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355-56; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuin: issue for trial. Id. A summary judgment determination is essentially an inquiry as to “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511. Finally, the court notes that, “[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained” and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat’ Bank, 704 F.2d 361, 367 (7th Cir.1983). Discussion The plaintiffs, Indiana Gas Company, Inc., Richmond Gas Corporationand Terre Haute Gas Corporation(collectively“Indiana Gas”), commenced this action by filing a complaint for declaratory judgment and breach of contract because of the refusal of the five remaining defendant insurance companies to pay claims for third- party property damage tendered to them by Indiana Gas under comprehensive general liability insurance policies. According to Indiana Gas, the underlying property damage arises out of the historical gas manufacturing operations that took place at certain properties now owned by Indiana Gas. 46a Appendix B From the early 1800’s until natural gas became widely available in the 1940’s and 1950's, gas for heating, lighting and cooking was manufactured by superheating coal and, later, coal combined with oil. During the manufactured gas era, more than 1,500 cities and towns across the country had a town gas plant that manufactured and stored gas until it was distributed directly to the homes and businesses of the town through a pressurized underground gas pipeline distribution system. The gas manufacturing process created tar, as well as other residuals and wastes, as a by-product. Unfortunately, the residuals, wastes and by-products from the gas manufacturing process contained hazardous constituents, such as benzene, which have been discovered in the subsurface soil and groundwater at properties where these manufactured gas plants (“MGPs”) were operated. Nine such former MGP sites: Shelbyville, Lafayette, Bedford, Greencastle, Huntington, Marion, Richmond, Seymour, and Terre Haute, Indiana, are at issue in the claims for property damage which underlie this lawsuit for insurance coverage. Indiana Gas claims that it has incurred and will continue to incur millions of dollars in liabilities as the result of state and federal law requirements to respond to the property damage at and near certain former MGP sites. According to Indiana Gas, damage to groundwater beneath the former MGP sites from subsurface leaching and migration began at most locations prior to 1955 and continues to the present day. In support of its motion for summary judgment, defendant London Market Insurers (“LMI”) argues that the damages caused by intentional acts are not covered by insurance under Indiana law, as fortuity is inherent in every contract of insurance. LMI takes the position that the “occurrences” or “accidents” which Indiana Gas contends are covered under the policies are the 47a Appendix B continuing releases of hazardous substances which derived from routine business operations and, thus, constitute intentional acts rather than accidents. LMI argues that Indiana Gas mistakenly focuses on the result of its intentional acts, by contending that “occurrences” and “accidents” have taken place because of the damages arising out of the deliberate and intentional acts associated with the routine operations of MGPs. LMI strongly contends that it must be shown that an “accident” occurred before the inquiry focuses on the question of whether any resultant damage was expected or intended, as required by the relevant policies. LMI primarily relies on F idelity and Guar. Ins. Underwriters, Inc. v. Everett I. Brown Co., L.P., 25 F.3d 484 (7th Cir.1994); Red Ball Leasing v. Hartford Accident & Idem. Co., 915 F.2d 306 (7th Cir. 1990); and Transamerica Ins. Serv. v. Kopko, 570 N.E.2d 1283 (Ind.1991). This case law clearly supports LMI’s position. In Brown, the Seventh Circuit Court of Appeals expressly acknowledged the distinction between the issue of whether an act is an “accident”, and the issue of whether the damages arising from that act are “expected or intended”. In reconciling two Indiana appellate decisions with Red Ball Leasing, an earlier Seventh Circuit opinion, the Court explained that: At first glance, it may appear that Bolin [v. State Farm Fire & Casualty Co., 557 N.E.2d 1084 (Ind.Ct.App.1990) ] and [Auto Owners Ins. Co. v.] Stroud, [565 N.E.2d 1093 (Ind.Ct.App.1991) ], are inconsistent with Red Ball Leasing. However, a more exacting look reveals that these cases are not inconsistent. In both Bolin and Stroud, the insurance companies argued that there was no “occurrence” 48a Appendix B because the insured had “expected or intended” to cause the injury in question. In Red Ball Leasing, however, the insurance company did not argue that the insured “expected or intended” to cause injury. Rather, the insurance company contended that there was no “occurrence” because Red Ball had engaged in intentional conduct which was not an “accident”. In essence, the Indiana courts have focused on different terms in the definition of “occurrence” than we have. Brown, 25 F.3d at 483. The Seventh Circuit then continued with the following language: Moreover, the Indiana Supreme Court recently held that intentional conduct is not “accidental” and thus not an “occurreace.” (Citing Transamerica Ins. Servs. v. Kopko, 570 N.E.2d 1283 (Ind.1991)). Id. Red Ball Leasing, which was discussed in Brown, is an earlier Seventh Circuit opinion which held that a volitional act is not an “accident”. In Red Ball Leasing, a truck leasing company repossessed leased trucks after an accounting system erroneously indicated that lease payments had not been made on the trucks. The lessee subsequently sued Red Ball Leasing for conversion, breach of contract, aad interference with business opportunities. Red Ball Leasing recuested that its insurance carrier represent it in the action. The Seventh Circuit affirmed the district court’s grant of summary judgment in favor of the insurer, concluding that: “Even if the mistake in Red Ball’s accounting procedures triggered the chain of events that ultimately led to the repossession, the decision to take the trucks--an intentional act of Red Ball — is not an 49a Appendix B ‘accident’ under the terms of the insurance policy.” 915 F.2d at 311-12. The holding in Red Ball Leasing was reaffirmed in City of Jasper, Ind. v. Employers Ins. of Wausau, 987 F.2d 453, 457 (7th Cir. 1994): Sas An “accident” for our purposes is defined as “an unusual, unexpected, and unforeseen event.” Red Ball Leasing, 915 F.2d at 309; 11 Couch, supra, § 44:288 at 433. The incident at issue does not satisfy this definition. What happened here, stripped to its essentials, is that an “action,” not an “accident”, of the City granted Mr. Habig the right to build two duplexes on his land, to the unhappiness of his neighbors who thereupon filed suit. The action was taken purportedly in harmony with the City’s zoning regulations, and Habig acted on that in constructing the duplexes. Plainly, by the allegations of the complaint itself, the City’s action was prompted by its conclusion that it was authorized by the zoning ordinance and quite as plainly after much litigation, the Court of Appeals of Indiana concluded that it was not. (Footnote omitted). But the City’s error and the fact that the property damage could have been avoided does not transform the intended action into an “accident”. “A volitional act does not become an accident simply because the insured’s negligence prompted the act.” Red Ball Leasing, 915 F.2d at 311. Red Ball Leasing was also followed by Judge McKinney of the Southern District of Indiana in Allstate Ins. Co. v. Norris, 795 F.Supp. 272 (S.D.Ind.1992). In Norris, the insured shot a bystander while attempting to “pin down” aa assailant. The insurer sou ghta 50a Appendix B declaration that the insured’s homeowner’s policy did not cover the bystander’s injuries because the injuries were not the result of an “accident”. The policy at issue in Norris provided that “Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy.” (Emphasis added.) After discussing the facts of Red Ball Leasing, Judge McKinney stated: Under the Red Ball analysis, Duane’s injuries here c. arly diz not result from an accident, and therefore are not covered under Norris’s policy. This result obtains even if one assumes that Norris did not fire his gun at anyone in particular, because it is undisputed that he meant to fire his gun, and that he meant to fire it in the direction of the house where Duane was standing. Norris’s actions therefore were volitional, and clearly not accidental, whether or not their consequences were unforeseen. Thus, Duane’s injuries are not covered. 795 F.Supp. at 275. Similarly, in Terre Haute First Nat’l Bank v. Pacific Employers Insurance Co., 634 N.E.2d 1336, 1338 (Ind.App. 1993), the Indiana Court of Appeals stated: The Policy states simply that “‘[o]ccurrence’ means an accident.” In the context of insurance coverage, an accident means an unexpected happening without an intention or design. National Mutual Insurance Co. v. Eward (1987), Ind.App., 517 N.E.2d 95, 100. Elkins’ Sla Appendix B complaint alleged the Bank’s negligence and breach of fiduciary duty in acting as his guardian. In other words, the claim against the Bank arose from a professional relationship and not from an accident. The Bank’s purported professional negligence in acting as Elkins’ guardian cannot be an accident in the plain and ordinary meaning of that term. Indiana Gas, however, has taken the position that the “accident” for which it seeks coverage is the unexpected and unintended centinuous migration of MGP by-productsand residuals through tie seil and groundwater and the property damage that has taken place as a result of that migration. In spite ox the strong Seventh Circuit precedent discussed above, Indiana Gas relies on Stillwell v. Brock Brothers Inc., 736 F.Supp. 201 (S.D.Ind.1990), for the proposition that it is the damage and not the fortuitous act, which constitutes an “accident”. In Stillwell, the plaintiff homeowne1 3 had their house re-roofed by the defendant in May of 1987. The re-roofing was performed in a negligent manner, and when the plaintiffs first turned on the gas furnace in their house in October of 1987, they suffered personal injury from smoke and fumes that became trapped in the house as a result of the negligent re-roofing. Although the plaintiffs’ insurance policy had terminated on August 10, 1987, they sought coverage under the policy. 736 F.Supp. at 204, 205. The district court granted summary judgment in favor of the insurance company, finding that the term “accident” was not ambiguous, and ruling that: “[A}ecident” refers to the fruits of a negligent act, not to the sowing of the seeds. It is consequence, not cause, that constitutes an accident. Transamerica’s failure to define “accident” within the policy does not render the word ambiguous. 736 F.Supp. at 206. 52a Appendix B In reply to Indiana Gas’ reliance on Stillwell, LMI points out that the district court in Stillwell did not have the benefit of the Brown, Red Ball, or Kopko decisions. After careful consideration of all the relevant case law, this court finds the case law supporting LMI’s position (and discussed extensively supra ) to be the better reasoned opinions. Clearly, an intentional act, even one that causes damage, is simply not an accident, even though the damage itself may have been unexpected or unintended. Other states, including California, have recognized this principle. For example, in IMCERA Group, Inc. v. Liberty Mutual Insurance Co., 10 Mealy’s Litigation Reports — Insurance # 18 (Calif.Ct. of App.2d Dist. Div. 1) (March 12, 1996), review granted, 54 Cal.Rptr.2d 41, 917 P.2d 1164 the California Court of Appeals held that: Even if an “accident” under Liberty’s 1967-1971 policies can be a gradual (non-sudden) event, it definitely cannot be an intentional act. (See Shell Oil Co. [v. Winterthur Swiss Ins. Co., supra, 12 Cal.App.4th [715] at pp. 748- 751 [15 Cal.Rptr.2d 815 (1993) ] ). In this case, the trial court found that IMCERA intentionally discharged pollutants onto the soil and that “{a]ny accidents were purely incidental to normal operation of any manufacturing plant and did not change the picture of gradual pollution over time.” Consequently, because the cause of the property damage was intentional, not accidental, no coverage or duty to indemnify existed under the policies. The fact that some “incidental” accidents may have contributed to the contamination does not change this result. “[A] company which engages in systematic pollution as a concomitant of its normal business ate ae we Cees ae Tae 53a Appendix B practice cannot claim that such pollution was ‘accidental’ ”. (N.H. Ball Bearings v. Aetna Cas. and Sur. Co. (1st Cir.1995) 43 F.3d 749, 754, discussing Great Lakes Container v. National Union Fire Ins. (1st Cir. 1984) 727 F.2d 30, 33; accord, Lumbermens Mut. v. Belleville Industries (1st Cir.1991) 938 F.2d 1423, 1428-1430 [where manufacturer engaged in intentional, continuous pattern of pollution as part of business operation, occasional accident resulting in pollution did not confer coverage under liability policy], cert. den. 502 U.S. 1073 [112 S.Ct. 969, 117 L.Ed.2d 134 (1992) }.) IMCERA at 54-55 (footnotes omitted). Moreover, the distinction between an “accident” or fortuity (the act) and “damages” (the result) is inherent in every contract of insurance. As stated by R.E. Keeton in Insurance Law: A requirement that loss be accidental in some sense in order to qualify as the occasion for liability of an insurer is implicit, when not express, because of the very nature of insurance. R.E. Keeton, Insurance Law § 5.4(a), at 288 (1971), quoted in Ostrager & Newman, Handbook on Insurance Coverage Disputes § 8.02(a], at 308 (8th ed. 1995). Thus, it is clear that it is imperative for an “accident” to have occurred before the issue of whether the damages resulting therefrom were expected or intended need even be considered. In the present case, Indiana Gas has not made any showing that the acts causing the damages at issue were not intentional. -S4a Appendix B Rather, Indiana Gas claims that there is no “intentional acts” exclusion in the policies, and that at least one of the defendants has acknowledged that its policies cover the unintended consequences of intentional acts. Indiana Gas relies heavily on Aetna’s ten-year old internal claims handling manual, which states that: [I]t is important to understand that intentional acts of an insured may not be excluded. It is only when the resulting bodily injury or property damage is expected or intended from the standpoint of the insured that coverage is excluded for failure to satisfy the occurrence definition. This is a question of fact and often involves a degree of uncertainty. Aetna Casualty & Sur. Co., Commercial Technical Claim Manual, § F-1 at F-1-18 (June 1986). In its reply brief, LMI first points out that Aetna’s claim manual is not pertinent to the policies issued by any defendant other than Aetna. Further, LMI argues that the language of the policies at issue is clear and unambiguous and, thus, extrinsic evidence cannot properly be considered by this court. This court agrees with LMI. Citing to Freeman v. Commonwealth Life Ins. Co., 149 Ind.App. 211,271 N.E.2d 177 (1971) and Weinand v. Johnson, 622 N.E.2d 1321 (Ind.App.1993), Indiana Gas argues that the Indiana courts have found the term “accident” to be ambiguous. However, as LMI notes, in Weinand, the Indiana court simply acknowledged that in Indiana it is reversible error to instruct the jury that a plaintiff may not recover if his damages are the result ofa “mere” or “pure” accident. The Weinand court went on to state that “[s]uch instructions are misleading because they suggest that a defendant 55a Appendix B is not liable for causing a ‘mere accident,’ even though the defendant may have been negligent in causing the ‘accident.’” 622 N.E.2d at 1324-25. Clearly, Weinand is not applicable to the present case. Likewise, Freeman held that the term “accident” is ambiguous to laypersons because the term is often used to describe events caused by negligence and fault. Thus, with respect to a contract of adhesion, “reasonable foreseeability” was held to not be the proper test for determining whether the means by which an injury or death was caused was “accidental”. 271 N.E.2d at 184. As the present case does not involve a life insurance policy, Freeman has little (ifany, -pplicability to the present case. Moreover, language such as that used in the insurance contractsat issue here was held to be unambiguous by the Indiana Supreme Court in Kopko, supra, and also by the Stillwell court. Indiana Gas has also relied on Eli Lilly Co. v. Home Ins. Co., 482 N.E.2d 467 (Ind.1985), in support of its position that the term “accident” is ambiguous. However, as LMI argues, the Eli Lilly court did not consider whether the bodily injury in that case was an “accident”. Thus, the court had no occasion to determine whether the term “accident” was ambiguous. Rather, the Eli Lilly court held that the determination of when the injury occurred for purposes of the relevant policies was ambiguous, as at least two possible time considerations, exposure and manifestation, were relevant. As it was presumed that Eli Lilly did not intentionally manufacture a product that would injure people, the sole issue was which policies were required to respond to the claim, not whether any policies would respond. Indiana Gas also cites to Indiana Ins. Co. v. O.K. Transport, Inc., 587 N.E.2d 129 (Ind.App.1992), for the proposition that “a 56a Appendix B split of authority among court decisions in construing a term in an insurance policy demonstrates that the term is ambiguous as a matter of law.” (Answer brief at p. 7). In O.K. Transport, the court stated that “[b]ased on the policy language alone, we are unable to conclude which result was intended by the parties. Both interpretations strike us as reasonable.” 587 N.E.2d at 132. The court then noted that other courts were fairly equally divided on the issue, and then cited a sampling of cases “as examples supporting the proposition that reasonably intelligent people can differ” about the contract language at issue. Id. The O.K. Transport court did not, as Indiana Gas argues, hold that the split of authority conclusively demonstrated that the policy language was ambiguous. Additionally, as LMI recognizes, this court has recently rejected the approach advocated by Indiana Gas. In United Capitol Ins. Co. v. Special Trucks, Inc., 918 F.Supp. 1250 (N.D.Ind.1996), this court conducted a lengthy analysis of several terms in an insurance policy. Only after first looking for Indiana precedent did this court then search for decisions in other jurisdictions and considered those cases pro and con to the parties’ respective positions. Id. at 1255. This court did not first look to see whether other courts were split on the issue and then mechanically rule in favor of the policyholder. LMI suggests that, just as in United Capitol, this court should first look to see whether any Seventh Circuit precedent exists holding the “occurrence” definition to be unambiguous as a matter of Indiana law. In Red Ball Leasing, supra, 915 F.2d at 308-09, the Seventh Circuit found language similar to the language at issue in the present case to be clear and unambiguous. Later in Brown, 25 F.3d at 486- 87, the Seventh Circuit reaffirmed Red Ball Leasing, finding no ambiguity in a policy defining an “occurrence” as “an accident. . . which results in bodily injury or property damage. . . .” ‘Bezel 57a : Appendix B This court will follow Red Ball Leasing and Brown, and thus finds the term “accident” to be clear and unambiguous. Therefore, Indiana Gas’ citation to extrinsic evidence is improper, as extrinsic evidence is inadmissible where no ambiguity exists in the contract. City of Evansville v. Old State Util. Corp., 550 N.E.2d 1339, 1342 (Ind.App.1990). Certain of LMI’s policies contain the following definition of the term “occurrence”, in these words or in substantially similar language: The term “occurrence” whenever used herein shall mean one happening or series of happenings, arising out of or due to one event taking place during the term of this contract. LMI has taken the position that this wording requires that a “causative event” take place during the policy period, regardless of when any third party property damage takes place. In support of this interpretation, LMI cites to Pacific Resources Inc. v. Oswego Shipping Corporation, No. 81 CIV. 7971, 1984 WL 928 (S.D.N.Y. Sept. 26, 1984); Babcock & Wilcox Co. v. Arkwright- Boston Mfg. Mutual Ins. Co., No. 5:91CV 0987 (E.D.Ohio, August 19, 1993), aff'd 53 F.3d 762 (6th Cir. 1995); and Public Service Elec. & Gas Co. v. Certain Underwniters at Lloyd’s London, (“PSE & G “) Civ. Action 88- 4811 (JCL) (D.N.J.1994). In Pacific Resources, an insurance policy defined “occurrence” as a “happening or series of happenings, arising out of or due to one event taking place during the term of this policy.” The issue involved coverage for the loss of a vessel which was sold in 1975 by an entity which knew it to be unseaworthy. Cracks developed in the vessel’s side plates during a voyage two years 58a Appendix B later, in 1977. An explosion resulted and the vessel sank. The district court held that the policy applicable to the loss was the 1975 policy which was in effect when the vessel was sold, rather than the policy in effect when the vessel sank. The district court explained that the policy was an “occurrence” policy rather than a “claims- made” policy, and thus protected the insured from liability for any act done while the policy was in effect. In contrast, a “claims made” policy protects the insured against claims made during the life of the policy. The district court then specifically held: As discussed above, the “event” giving rise to the plaintiffs’ loss was the sale of the vessel with the alleged nondisclosures. The fact that the “happening” which precipitated the claim occurred in 1977 when the 1975 policy was no longer in effect does not prevent plaintiff from recovering under the 1975 policy. The liability arose out of an event which occurred in 1975 when the policy was in effect. Pacific Resources, 1984 WL 928 at *4. In Babcock & Wilcox, as in Pacific Resources and the case at bar, the term “occurrence” was defined to mean “any happening or series of happenings, arising out of or due to one event taking place during the term of this contract. . . .” The plaintiff/insured claimed that the definition of “occurrence” did not require that the event which was the cause of the personal injury to occur during the policy term, but rather, the policy required that the happening (the injury) occur during the policy period. The Babcock & Wilcox court discussed this policy language, and the plaintiff/insured’s interpretation thereof, as follows: Broken into its components, the definition of occurrence has four relevant parts: “[1] any happening Se Fa i a tad 59a Appendix B or series of happenings, [2] arising out of or due to [3] one event [4] taking place during the term of this contract.” Plaintiff's analysis focusses primarily upon the first and third portions of the definition. Such an interpretation requires the court to ignore the plain import of the sentence; it would have this court apply a phrase at the end of the sentence to a phrase at the beginning of the sentence without regard to any of the material which lies between. Given the fact that the temporal restriction follows the term “event” and is contained in an independent phrase separated from the description of happening by a comma, the plain meaning of the sentence is that the event, not the happening, must occur during the term of the contract. Id. at 27. This portion of the district court’s opinion was adopted by the Sixth Circuit Court of Appeals. See 53 F.3d at 766. Finally, in PSE & G, the New Jersey District Court had before it an action involving a declaratory judgment for alleged liability arising out of historic manufactured gas operations. The policies at issue defined the term “occurrence” to mean “one happening or series of happening arising out of or caused by one event taking place during the term of this contract.” This language is identical to the language in the present case, as well as the language in Babcock & Wilcox and Pacific Resources, except the defining phrase does not have a comma after the word “happening”. Nevertheless, the court followed Babcock & Wilcox and Pacific Resources, stating that: The Court is satisfied that, absent the comma, the definition of “occurrence” in the 1975-79 policies 60a Appendix B should be interpreted the same as the corresponding definitions in Pacific Resources and Babcock & Wilcox, to require that the “event” take place during the policy period. Further, the Court finds that the “event” alluded to in the policy definition refers to the contamination itself, such as a leak or spill, and not to any subsequent leaching or migration of contaminants. Rather, under the definition leaching or migration would qualify as the “happening or series of happenings arising out of ... [the] event.” Therefore, the Court holds that the 1975-79 policies may be triggered only if Public Service is able to present evidence that an “event” as described in the policy definition of “occurrence,” occurred during the policy period. Id. at 12-13. Indiana Gas argues that the “occurrence” definition in the policies at issue is ambiguous and must be construed in favor of Indiana Gas. Indiana Gas cites to Northern Shipping Co. v. Arkwright Boston Manufacturers Mutual Insurance Company, 617 F.Supp. 136, 138 (E.D.Pa.1985), in support of its argument. However, in Northern Shipping, the district court did not rule that the “occurrence” language was ambiguous. Rather, the district court simply applied the language as it was written in the policy to the facts of the case before it. Indiana Gas also cites to Commercial Union Ins. v. Pittsburgh Corning Corp., 553 F.Supp. 425, 434 n. 23 (E.D.Pa.1981). The Commercial Union court simply stated, without discussion, that “the policy is unclear on whether the ‘occurrence’ or the ‘injury’ must occur during the policy period. This ambiguity also must be construed in the insured’s favor.” This court first notes that in Northern Shipping, the court did not follow its own 6la Appendix B decision in Commercial Union. Thus, this court finds Commercial Union to be of little value. Additionally, a decision relied upon by Indiana Gas in support of its argument that the “causative event” need not take place during the policy period, Washington Natural Gas Co. v. Aetna Casualty & Surety Co., No. 91-2-13506-1 (Wash.Super.Ct., King Cty. Sept. 23, 1993), reported in Mealey’s Lit.Rep.: Insurance, Vol. 7, Iss. 44 (Sept. 28, 1993) at p. 5, Sec. F., involved the exact same policy language as is present in the case at bar. The Washington Natural Gas court stated: The Stone & Webster policies contained language that may properly be portrayed as verbose or even redundant, but it is not language which is either ambiguous or in need of strained rules of construction. Id. at 8. This court agrees that the language in the policy is not ambiguous.’ LMI acknowledges that the Washington Natural Gas court held that an “event” could be a “process” and “[a]s long as the process is continuous and is taking place during some or all of the term of the contract, it is covered.” Id. However, LMI urges this court to follow the reasoning set forth in Babcock & Wilcox and PSE & G. 2. On August 9, 1996, LMI filed a motion to strike Exhibit 16 to Indiana Gas’ answer brief. Exhibit 16 consists of the trial testimony of Leslie R. Dew in a 1990 California state court action. Indiana Gas submitted the exhibit in support of its argument that the “occurrence” language was ambiguous. LMI objects to Exhibit 16 for several reasons, including the reason that extrinsic evidence is not admissible to show ambiguity in a contract. As this court has found that the case law does not support Indiana Gas’ argument that the language is ambiguous, and did not rely on Exhibit 16, LMI’s motion to strike is moot. 62a Appendix B This court agrees that the cases cited by LMI are the better reasoned opinions. Interpreting the “occurrence” language to provide coverage for “any happening . . . taking place during the term of this contract” would, as the Babcock & Wilcox court expressly recognized, ignore the plain meaning of the sentence by ignoring the restrictive “arising out of or due to one event” language. Thus, this court holds that the plain meaning of the language, when read as a complete sentence as intended, is to require that the “event” and not the “happening” take place during the term of the contract. As it is undisputed that some of the LMI policies at issue were not in effect during the time the MGP’s were in operation, it is clear that summary judgment should be granted with respect to these policies. Conclusion For all of the foregoing reasons, summary judgment is hereby GRANTED in favor of LMI (and the joining defendants) with respect to the policies affected by this court’s rulings as set forth in this order. Further, LMI’s motion to strike Exhibit 16 to Indiana Gas’ brief is hereby deemed MOOT. 63a Appendix B INDIANA GAS COMPANY, INC., et al., Plaintiffs, V. AETNA CASUALTY & SURETY COMPANY, etal., Defendants. Civil No. 1:95cv101. United States District Court, N.D. Indiana, Fort Wayne Division. Oct. 2, 1996. * * * ORDER WILLIAM C. LEE, District Judge. This matter is before the court on a “Motion for Partial Summary Judgment on the Pollution Exclusion” filed by the Home Insurance Company (“Home”) on July 10, 1996.' Also before the court is “London Market Insurers’ Motion for Summary Judgment on all Policies Containing the London Market Pollution Exclusion”, which was also filed on July 10, 1996. The parties completed briefing the motions on August 9, 1996. 1. Other defendants have joined Home’s motion for summary judgment. 64a Appendix B Summary Judgment Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). However, Rule 56(c) is nota requirement that the moving party negate his opponent’s claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and in which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party’s position is not sufficient to successfully oppose summary judgment; “there must be evidence on which the jury could reasonably find for the plaintiff.” Id. In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists “where the record as a whole could not lead a rational trier of fact to find for the nonmoving party.” Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986)). 65a Appendix B Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the “pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact,” Celotex, 477 US. at 323, 106 S.Ct. at 2552-53. The non- moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). So that the district court may readily determine whether genuine issues of material fact exist, under Local Rule 56.1, the moving party is obligated to file with the court a “Statement of Material Facts” supported by appropriate citation to the record to which the moving party contends no genuine issues exist. In addition, the non-movant is obligated to file with the court a “Statement of Genuine Issues” supported by appropriate citation to the record outlining all material facts to which the non-movant contends exist that must be litigated. See, Waldridge v. American Hoechst Corp. et al., 24 F.3d 918 (7th Cir.1994). In ruling on a summary judgment motion the court accepts as true the non-moving party’s evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. Furthermore, in determining the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without centroversy, except to the extent that such facts are controverted in the “Statement of Genuine Issues” filed in opposition to the motion. L.R. 56.1 66a Appendix B Subsiantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. Finally, the court notes that, “[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained” and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat’! Bank, 704 F.2d 361, 367 (7th Cir. 1983). Discussion The plaintiffs, Indiana Gas Company, Inc., Richmond Gas Corporationand Terre Haute Gas Corporation(collectively“Indiana Gas”), commenced this action by filing a complaint for declaratory judgment and breach of contract because of the refusal of the five remaining defendant insurance companies to pay claims for third- party property damage tendered to them by Indiana Gas under comprehensive general liability insurance policies. According to Indiana Gas, the underlying property damage arises out of the historical gas manufacturing operations that took place at certain properties now owned by Indiana Gas. 67a Appendix B From the early 1800's until natural gas became widely available in the 1940’s and 1950's, gas for heating, lighting and cooking was manufactured by superheating coal and, later, coal combined with oil. During the manufactured gas era, more than 1,500 cities and towns across the country had a town gas plant that manufactured and stored gas until it was distributed directly to the homes and businesses of the town through a pressurized underground gas pipeline distributionsystem. The gas manufacturing process created tar, as well as other residuals and wastes, as a by-product. Unfortunately, the residuals, wastes and by-products from the gas manufacturing process contained hazardous constituents, such as benzene, which have been discovered in the subsurface soil and groundwater at properties where these manufactured gas plants (“MGPs”) were operated. Nine such former MGP sites: Shelbyville, Lafayette, Bedford, Greencastle, Huntington, Marion, Richmond, Seymour, and Terre Haute, Indiana, are at issue in the Claims for property damage which underlie this lawsuit for insurance coverage. Indiana Gas claims that it has incurred and will continue to incur millions of dollars in liabilities as the result of state and federal law requirements to respond to the property damage at and near certain former MGP sites. According to Indiana Gas, damage to groundwater beneath the former MGP sites from subsurface leaching and migration began at most locations prior to 1955 and continues to the present day. HOME’S MOTION FOR SUMMARY JUDGMENT ON THE POLLUTION EXCLUSION In support of its motion for summary judgment, Home argues that Indiana Gas is not entitled to coverage under any insurance policy that excludes coverage for pollution absent a “sudden and 68a Appendix B accidental” discharge, dispeisal, escape or release of pollutants. Specifically, the language of the pollution exclusion at issue in this motion reads as follows: [T]his 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 orpollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. Coverage under the policies at issue depends in the first instance on whether the underlying claims are for a discharge or release of pollutants and therefore subject to the pollution exclusion. If the exclusion applies, then coverage depends entirely on whether the “sudden and accidental” exception to the exclusion also applies. Home first argues that Indiana Gas’ claims are based on a release of pollutants, and thus fit within the exclusion. Indiana Gas, however, claims that the term “pollutant” is ambiguous. Indiana Gas further claims that Home bears the burden of establishing that MGP by- products were understood by the parties to be “pollutants” within the meaning of the exclusion at the time the policies containing such exclusions were issued. Indiana Gas relies on American States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind.1996), in support of its position that the term “pollutant” is ambiguous and should thus be construed against the 69a Appendix B insurer. In Kiger, the insured owned a gasoline service station. which was the source of an underground gasoline leak. The insurance policy at issue contained a pollution exclusion clause and defined “pollutants” as: any solid, liquid gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. Id. at 948. The Kiger court stated that: Clearly, this clause cannot be read literally as it would negate virtually all coverage. For example, if a visitor slips on a grease spill then, since grease is a “chemical” there would be no insurance coverage. Accordingly, this clause requires interpretation.... We are particularly troubled by the interpretation offered by American States, as it makes it appear that Kiger was sold a policy that provided no coverage for a iarge segment of the gas station’s business operations. . . . In any event, since the term “pollutant” does not obviously include gasoline and, accordingly is ambiguous, we once again must construe the language against the insurer who drafted it. Appellant claims that in common parlance gasoline is sometimes referred to as a pollutant. That may be correct, but the ambiguity remains. If a garage policy is intended to exclude coverage for damage caused by the leakage of gasoline, the language of the contract must be explicit. Id. at 948-49. 70a Appendix B Indiana Gas argues that like Kiger, the instant case involves releases of substances thet are not explicitly listed in the pollution exclusion and that obviously were not considered by Indiana Gas to be “pollutants” until recentiy when contamination was discovered at the sites. Although the exact harmful chemical substances that were released into the environment are not listed in the pollution exclusion clause, the clause does clearly state that damages arising out of the discharge, etc. of “waste materials” are not covered by the policy. It is clear to this court that the substances which Indiana Gas and its predecessors placed into the environment were “waste products”. Although Indiana Gas attempts to characterize the waste products as “by-products”, some of which were marketable in some form, it is clear that even if some of the waste products were eventually marketable, a huge amount of waste products were simply dumped on the ground or buried in pits. Indiana Gas’ own experts have testified that such methods of disposing wastes were accepted practices in the first half of this century, and were not associated with potential human health risks. (Report of Dr. Barbara Beck at 6-1; Report of Dr. Richard T. Dewling at 6-7). Clearly, Indiana Gas would not have gone to the expense of procuring extensive reports from two expert witnesses regarding the disposal of waste products if Indiana Gas had not disposed of any such waste products. Thus, as the policies at issue exclude damages arising from “waste products”, the exclusion has been triggered. Home next argues that Indiana Gas’ claims are not within the “sudden and accidental” exception to the pollution exclusion. The parties dispute the burden of proof on this issue. Home acknowledges that under Indiana law, insurers bear the burden of proving the applicability of a policy exclusion. However, Home argues that the burden of proof for an exceptionto a policy exclusion Tla Appendix B rests with the insured. The positions of both parties are supported by numerous cases, yet the Indiana courts have not spoken on this issue. The courts in the Seventh Circuit also have not spoken on this precise issue. However, in Gulf Insurance Company v. Tilley, 280 F.Supp. 60 (N.D.Ind.1967), aff d, 393 F.2d 119 (7th Cir.1968), this court held that a blanket exclusion and the exception thereto must be construed together to give meaning to the entire paragraph of the exclusion. 280 F.Supp. at 64. In the present case, this court holds that the most consistent way to allocate the burden of proof is to follow the traditional distinction between coverage clauses and exclusionary clauses. Because the “sudden and accidental” exception is part of an exclusionary clause, the insurer bears the burden of proving not only that the property damage at issue resulted from the discharge of pollutants, but also that the discharge was neither sudden nor accidental. See New Castle County v. Hartford Acc. and Indem. Co., 933 F.2d 1162, 1182 (3rd Cir.1991). The next issue before the court is whether the pollution exclusion is inapplicable due to Indiana Gas’ alleged lack of knowledge or expectation about the polluting characteristics of the discharge or release. Home has taken the position that if the substances discharged or released into the environment were in fact wastes or pollutants, the pollution exclusion applies without regard to Indiana Gas’ awareness of whether the discharges were hazardous, or whether Indiana Gas was even the party who discharged the pollutants. Indiana Gas, however, argues that it did not believe (and had no reason to believe) that it was releasing pollutants into the environment, and the pollution exclusion should not apply for that reason. Indiana Gas also argues that it did not operate gas plants at five of the sites in this case, but acquired those sites only after MGP operations had ceased and, thus, did 72a Appendix B not discharge or release any by-products or pollutants at those five sites. The plain language of the pollution exclusion provides that the policy does not apply to damage arising out of the discharge of pollutants, unless such discharge is sudden and accidental. It seems completely clear that the only exception to the pollution exclusion is in the case of sudden and accidental discharges. There is simply no exception for intentional discharges that cause unexpected or unintended damages. This reading of the pollution exclusion is supported by ample case law. See e.g., St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195, 1200 (1st Cir. 1994); New Castle County v. Hartford Accident & Indem. Co., 970 F.2d 1267, 1272 (3d Cir. 1992); Independent Petrochemical Corp. v. Aetna Casualty & Sur. Co., 842 F.Supp. 575, 584-85 (D.D.C.1994, aff'd sub nom. Charter Oil Co. v. American Employers’ Ins. Co., 69 F.3d 1160 (D.C.Cir.1995); Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F.Supp. 1406, 1411 (D.Del.1992); Bureau of Engraving v. Federal Ins. Co., 793 F.Supp. 209, 212 (D.Minn.1992), aff'd, 5 F.3d 1175, 1177-78 (8th Cir.1993); Independent Petrochemical Corp. v. Aetna Casualty & Sur. Co., 781 F.Supp. 9, 17 (D.D.C.1991), aff?'d, 995 F.2d 305 (D.C.Cir. 1993). Indiana Gas again relies on Kiger in support of its interpretation. In Kiger, the Indiana Supreme Court was called upon to determine whether the phrase “sudden and accidental” was ambiguous. The Court stated: If one considers the insurance industry’s own interpretation of the contractual language, it becomes clear that there exists a lack of clarity (footnote omitted). The ambiguous phrase “sudden and 73a Appendix B accidental” was first added to insurance policies in the early 1970’s, in response to a plethora of claims for damage caused by polluting industries. The industry claimed that its addition was a mere clarification. The drafters said that coverage for pollution may not be provided in most cases under present policies because the damages could be said to be expected and intended and thus would be excluded by the definition of occurrence, and, therefore, the adoption of an exclusion could be said to be a clarification, but a necessary one in order to avoid any question of intent. Minutes of the Industrial Rating Board General Liability | Governing Committee (March 17, 1970) (emphasis added) (quoted in Harwood et al., The “Frivolity” of Policyholder Gradual Pollution Discharge Claims, 5 Mealey’s Ins.Lit.Rpts. No. 40 (August 1991)). Jn other words, the adding of the “sudden and accidental” language is nothing more than a “clarification” which made explicit the fact that the insurance did not cover those acts which are expected or intended. 662 N.E.2d at 947-48 (emphasis added). Although Indiana Gas cites to Kiger and points out that the Indiana Supreme Court relied on the “Minutes of the Insurance Rating Board” (incorrectly referred to in Kiger as the “Industrial Rating Board”), it is clear that Kiger does not support Indiana Gas’ argument that its alleged lack of knowledge of the polluting characteristics of its wastes is relevant. Clearly, even after examining the “Minutes” the Indiana Supreme Court stated that the “clarification” made explicit the fact that the insurance did not cover those acts which are expected or intended. The Indiana 74a Appendix B Supreme Court did not focus on the word “damages” and did not hold that the damages resulting from an insured’s intentional acts must be expected and/or intended. Nor is it likely that the Indiana Supreme Court would ever hold, as Indiana Gas suggests, “that the intent of the exclusion is to exclude only damage resulting from the insured’s intentional discharge of a known pollutant.” (Response brief at 15). Rather, it is clear that the focus is on the act of discharging wastes and pollutants and not on the damage caused by that act. Likewise, there is no wording in the policies which suggests that the discharge must have been an act of the insured. The policy does not provide, as it easily could have, that the pollution exclusion does not apply to discharges that are “sudden and accidental from the standpoint of the insured.” See, e.g., Independent Petrochemical Corp. v. Aetna Casualty & Sur. Co., 842 F.Supp. 575, 585 n. 15 (D.D.C.1994) (exception for “sudden happenings” not expected or intended “from the standpoint of the insured”), aff'd sub nom. Charter Oil Co. v. American Employers’ Ins. Co., 69 F.3d 1160 (D.C.Cir.1995). The exception to the pollution exclusion is only for discharges that are “sudden and accidental”, without regard to the identity of the discharger. Quaker State Minit-Lubev. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1530-31 (10th Cir.1995); St. Paul Fire & Marine Ins. Co. vy. Warwick Dyeing Corp., 26 F.3d 1195, 1201- 03 (ist Cir.1994); Northern Ins. Co. v. Aardvark Assocs., Inc., 942 F.2d 189, 194 (3rd Cir.1991); Park-Ohio Indus., Inc. v. Home Indemnity Co., 975 F.2d 1215, 1222 (6th Cir.1992); United States Fidelity & Guar. Co. v. George W. Whitesides Co., 932 F.2d 1169, 1170-71 (6th Cir.1991). Indiana Gas has directed this court to numerous decisions in which the courts have relied on the drafting history of the exclusion to conclude that it excludes only the insured’s intentional discharge 75a Appendix B of known pollutants. See, e.g., Morton International, Inc. v. General Accident Insurance Co., 134 N.J. 1,629 A.2d 831 (1993); United States Fidelity & Guar. Co. v. Specialty CoatingsCo., 180 Ill. App.3d 378, 129 Ill.Dec. 306, 535 N.E.2d 1071 (1989); Buckeye Union Ins. Co. v. Liberty Solvents & Chems. Co., 17 Ohio App.3d 127, 477 N.E.2d 1227 (1984). Home strongly objects to the holdings of these cases and argues that the “regulatory estoppel” theory adopted by those courts was expressly rejected by the Kiger Court which stated: “We are not adopting this understanding under a doctrine of ‘regulatory estoppel’ or any other theory.” 662 N.E.2d at 948. Generally, “regulatory estoppel” decisions are criticized for rewriting the terms of insurance contracts. Landis v. American Interinsurance Exch., 542 N.E.2d 1351, 1353 (Ind.App.1989); Mutual Sec. Life Ins. Co. v. Fidelity & Deposit Co. of Md., 659 N.E.2d 1096 (Ind.App.1995); Cincinnati Ins. Co. v. Mallon, 409 N.E.2d 1100, 1103 (Ind. App.1980).See also, Carrier Corp. v. Home Ins. Co., No. CV-88-352393-8 (Conn.Super.Ct. Oct. 31, 1994); E.I. duPont de Nemours & Co. v. Admiral Ins. Co., 1995 WL 562256 1995 Del.Super. LEXIS 398 (Del.Super.Ct. Aug. 23, 1995). As this court is prohibited from rewriting the terms of the contracts at issue, this court is precluded from adding the condition that the pollution exclusion does not apply to discharges that are sudden and accidental “from the standpoint of the insured.” Clearly, the pollution exclusion in the contracts at issue applies unless the discharge is “sudden and accidental”; there is no other exception to the pollution exclusion. Indiana Gas next shifts the focus of its argument to the issue of when has a “discharge” occurred. Indiana Gas claims that, at least with respect to the Shelbyville site, the wastes were placed in containmentpits and were not simply dumped on the land. Indiana 76a Appendix B Gas argues that the leakage from these containment pits was “sudden and accidental”, and thus the exception to the pollution exclusion applies. Indiana Gas cites to Patz v. St. Paul Fire & Marine Ins. Co., 15 F.3d 699 (7th Cir.1994), in support of its argument. In Patz, the plaintiffs (who manufactured and painted farm equipment) encountered the problem of how to dispose of wastes generated as a by-product of painting. One of the wastes was water contaminated by phosphate. The plaintiffs’ consultants suggested that the plaintiffs dig an open pit for the water. The idea, well accepted in the waste-disposai community at the time (early 1970s), was that the water would evaporate, leaving a deposit of phosphate solids that would rest at the bottom of the pit and could be easily removed and used as fertilizer. Because the soil where the pit was to be dug was highly compacted clay soil the water was expected to evaporate before it could permeate the soil, and so the soil beneath the pit would not be contaminated. The plaintiffs discontinued use of the pit in 1980 and filled it in the following year. However, in 1986 the Wisconsin Department of Natural Resources conducted an environmental audit which discovered groundwater contamination from the pit. The plaintiffs spent a substantial amount cleaning up the property, and sought to recover this amount from their insurance company. When the insurance company invoked the pollution exclusion, the plaintiffs argued that the “sudden and accidental” exception applied and that coverage was appropriate. Under controlling Wisconsin law, the phrase “sudden and accidental” means “unintended and unexpected”. Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456 N.W.2d 570 (1990). Further, pursuant to Just, the proper reading of the pollution exclusion clause is to distinguish between an intentional act not intended to discharge wastes into the environment and an intentional discharge. Applying Just to the facts before it, the Seventh Circuit Court of Appeals held in Patz 77a Appendix B that since the plaintiffs’ evaporation pit was a containmentstructure, despite its lack of artificial materials, the discharge was the leakage from that structure, which leakage was “sudden and accidental in the special sense of unintended and unexpected.” 15 F.3d at 704. As “the only discharges were the unintended and unexpected consequences of the defective containers in which the pollutants had been placed”, the exception to the pollution exclusion was triggered and the Seventh Circuit affirmed the district court’s decision in favor of the plaintiffs. Home strongly contends that the holding in Patz is not relevant to the present case. Home first points out that the pollution exclusion refers to discharges “into or upon land,” not the subsequent migration that causes third- party damage. See, e.g., Broderick Invest. Co. v. Hartford Accident & Indem. Co., 954 F.2d 601, 607-08 (10th Cir.) (“[W]hether BIC intended the waste to seep into the groundwater and cause damage after the initial discharges into the land .. . is irrelevant.”); Protective Nat’! Ins. Co. v. City of Woodhaven, 476 N. W.2d 374, 377 (“It is clear that the discharge, dispersal, release, or escape to which both the exclusion and the exception refer is the initial discharge, dispersal, release, or escape into the atmosphere and not the subsequent migration.”) With respect to Indiana Gas’ claim that the wastes were disposed of in clay bottomed pits, a natural containment structure, Home contends that the record in this case establishes that the MGP wastes were simply dumped into or upon the land. Indiana Gas’ own witness testified that “tars were placed on and in the ground regularly at gas plants.” (Stegner Dep. at 177-78). Home further argues that even if Patz is applicable to the present case, Indiana Gas has pointed to the testimony of just one witness (Car! Kinder), who testified about just one of the nine sites at issue, who 78a Appendix B said that he believed that there was clay beneath the disposal pits at the Shelbyville site. Home points out that K inder also testified that the discharges into the pits were done before his involvement with the Shelbyville site, and thus Kinder’s belief that the clay bottom of the pits prevented migration of the wastes is irrelevant, and is also inadmissible hearsay (as he did not personally know whether the pits had clay bottoms). This court finds Indiana Gas’ reliance on Patz to be misplaced. It is clear that Patz was decided under Wisconsin law, and the Seventh Circuit was bound by the Wisconsin Supreme Court’s decision in Just. Indiana Gas has not cited to any case from the Indiana Supreme Court that is analogous to Just. Moreover, it is apparent that the Seventh Circuit was not overly impressed with the Just decision, as the Court stated: “We cannot, of course, overrule Just, but we are not obliged to place the broadest possible interpretation on the decision.” 15 F.3d at 704-05. It is also clear that it was the practice at the MGP plants to dump the wastes onto the land, even though some waste may have been dumped into pits. The court further notes that even though Kinder testified that he believed that the pits had clay bottoms, there is no evidence whatsoever that the sides of the pits were made of clay. Thus, even if wastes were placed into clay bottomed pits, the waste would necessarily touch the sides of the pits, which were presumably made of soil. As the waste was placed “upon the land” even when it was placed in pits, the waste was “discharged” at the time it was placed in the pits. Indiana Gas also claims that Patz is relevant because the MGP wastes “suddenly and accidentally” escaped into the soil and groundwater from various man-made containment structures, e.g., gas holders, oil tanks, tar separators, purifiers and storage tanks. Indiana Gas cites to the Prickett Report in support of its claims. However, as Home notes, the Prickett Report merely identifies 79a Appendix B areas of soil contamination that are possible sources of groundwater contamination. The Report does not offer an opinion as to how the soil became contaminated, and does not discuss the issue of releases from “man-made” structures. As the only evidence of record shows that the discharges, etc., were not “sudden and accidental”, this court rules that the exception to the pollution exclusion is not applicable. Further, as the pollution exclusion in the policies at issue in this motion is applicable in the instant case, summary judgment will be granted in favor of Home (and all joining defendants) on this issue. LONDON MARKET INSURERS’ MOTION FOR SUMMARY JUDGMENT ON ALL POLICIES CONTAINING THE LONDON MARKET POLLUTION EXCLUSION The LMI pollution exclusion (NMA 1685) reads as follows: This insurance does not cover any liability for: (1) Personal Injury or Bodily Injury or loss of, damage to, or loss of use of property directly or indirectly caused by seepage, pollution or contamination, provided always that this paragraph (1) shall not apply to liability for Personal Injury or Bodily Injury or loss of or physical damage to or destruction of tangible property, or loss of use of such property damaged or destroyed, where such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this Insurance. (2) The cost of removing, nullifying or cleaning- up seeping, polluting or contaminating substances unless 80a Appendix B the seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this Insurance. (3) Fines, penalties, punitive or exemplary damages. This Clause shall not extend this Insurance to cover any liability which would not have been covered under | this Insurance had this Clause not been attached. ) In support of its motion for summary judgment, LMI argues that its pollution exclusion is clear and unambiguous and should be enforced according to its terms. Specifically, LMI addresses the : decision in American States Ins. Co. v. Kiger, 662 N.E.2d 945 | (Ind. 1996), and argues that the decision does not require this court to find that the exclusion is ambiguous. LMI argues that the Kiger court did not construe the wording of its pollution exclusion, which potentially permits coverage for pollution arising out of happenings in the policy period which are “sudden, unintended and unexpected”. LMI acknowledges that the Indiana Supreme Court found the phrase “sudden and accidental” to be ambiguous. 662 N.E.2d at ) 948. However, LMI argues that Kiger is distinguishable on two ) grounds. ) First LMI argues that it is not a domestic insurer and was not a member of the Insurance Rating Board (incorrectly referred to in Kiger as the “Industrial Rating Board”), the minutes of which were cited by the Kiger Court to support its conclusion that the phrase “sudden and accidental” was ambiguous. Secondly, LMI argues that a construction of “sudden” as meaning “unexpected” would render its pollution exclusion meaningless. That is, the clause would read: “unexpected, unintended and unexpected”. 8la [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1424%3A1. Public record. Not legal advice.