Chicago Bridge & Iron Co. v. Certain Underwriters at Lloyd's

797 N.E.2d 434, 59 Mass. App. Ct. 646, 2003 Mass. App. LEXIS 1112
CourtMassachusetts Appeals Court
DecidedOctober 17, 2003
DocketNo. 01-P-645
StatusPublished
Cited by18 cases

This text of 797 N.E.2d 434 (Chicago Bridge & Iron Co. v. Certain Underwriters at Lloyd's) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chicago Bridge & Iron Co. v. Certain Underwriters at Lloyd's, 797 N.E.2d 434, 59 Mass. App. Ct. 646, 2003 Mass. App. LEXIS 1112 (Mass. Ct. App. 2003).

Opinion

Rapoza, J.

The defendant insurers, Certain Underwriters at Lloyd’s, London, and Certain London Market Insurance Companies (collectively, London), appeal from a Superior Court judgment requiring London to indemnify the plaintiff insured, Chicago Bridge & Iron Company (CBI), for environmental cleanup and litigation expenses in connection with a lumber company’s processing operation, which contaminated a number of sites across the country with creosote over a period of some fifty years. London contends, in essence, that its liability for indemnification should be calculated in accordance with the proportion its policy period bears to the total period during which the contamination occurred.

CBI was at one time a minority shareholder in American Lumber & Treating Company (ALT) and in that capacity was identified by the Environmental Protection Agency (EPA) as potentially responsible for the environmental damages from ALT’s activities. Between 1961 and 1970, London had issued policies to CBI providing excess insurance coverage for losses [648]*648due to environmental contamination. The property damage at the sites where ALT once operated its facilities began in the early 1940’s and continued into the 1990’s.

CBI brought this action when London denied coverage for ALT-related losses at four contaminated sites. Following a jury-waived trial, a Superior Court judge found London liable for CBI’s indemnification and awarded CBI $4,678,322.24, plus prejudgment interest of $1,030,466.72, for CBI’s losses over and above CBI’s self-insured retention (SIR) of $100,000 at each of the four sites.

The paramount issue on appeal is the manner in which CBI’s losses, which derive from contamination spanning some fifty years, should be allocated between CBI and London. There is no dispute that the property damage here could not, as a practical matter, be assigned to any particular moment in time. Cases such as this, with multiple sites, multiple policies, and long-term environmental damage, raise important questions regarding when insurance coverage under a given policy is implicated, and to what extent. Here, we view the issue through the prism of Illinois law, another Superior Court judge having determined that the law of that State applies. Nevertheless, our analysis is not inconsistent with our treatment of similar matters in Rubenstein v. Royal Ins. Co. of America, 44 Mass. App. Ct. 842, 852-853 (1998), S.C., 429 Mass. 355 (1999),2 decided under Massachusetts law. In this case, we review the relevant considerations further.

In response to the parties’ motions in limine, a Superior Court judge ruled before trial that, pursuant to Illinois law and the language of the policy, London, if held liable, would be required to indemnify CBI for the entire amount of losses it incurred as a result of the contamination. This included CBI’s losses from contamination occurring prior to issuance of the 1961 London policy, as well as those losses occurring after the policy was no longer in effect. London maintains that it should be liable for only a portion of those damages. Also at issue on appeal are the [649]*649trial judge’s rulings with respect to notice and, on cross appeal, prejudgment interest.3

I. Background. We summarize the facts from the trial judge’s very thorough July 16, 2000, findings of fact, rulings of law and order for judgment, which we supplement from undisputed facts contained in the record, here and in our discussion of the issues. CBI’s potential liability for environmental cleanup of the former ALT sites stemmed from its status as an ALT minority shareholder in the years 1934 to 1954. Of the eighteen facilities once operated by ALT, eight had either closed or been sold by 1954, when CBI exchanged its interest in ALT for stock in Koppers Company, Inc. (Koppers), which at that time assumed ALT’s assets and liabilities.

This litigation sought indemnification from London for CBI’s losses in connection with four ALT sites:

A. The Westborough site. In 1984, the EPA identified environmental contamination at a site in Westborough, Massachusetts, which had been owned by ALT from 1936 to 1946. In May, 1985, EPA notified CBI that it was designated a potentially responsible party (PRP) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. (1995), a consequence of CBI’s ownership interest in ALT at a time when at least some of the pollution likely occurred.4 Subsequently, CBI representatives attended a June, 1985, meeting with other PRPs, including Koppers and Aluminum Company of America (ALCOA); ALCOA had also been an ALT minority shareholder between 1934 and 1954. A tentative settlement proposal reached at that time envisioned Koppers conducting the cleanup and other PRPs contributing a percentage of the costs.

On July 3, 1985, CBI wrote to its insurance agent, Marsh & McLennan Agency, Inc., and forwarded information regarding the proposed cleanup and costs for the Westborough site. Shortly [650]*650after, on August 5, 1985, CBI instructed Marsh & McLennan to “give notice”5 of the Westborough site to the various insurers that had issued excess policies to CBI covering the years 1956 to 1982.6 Marsh & McLennan then sent an August 15, 1985, letter to Price Forbes, Ltd. (Price Forbes), London’s insurance broker designated to receive CBI’s claims, placing it “on notice” of the Westborough “Superfund Site.” The letter to Price Forbes included the July 3, 1985, CBI letter to Marsh & McLennan, setting out the relationship of CBI to ALT and providing detailed information about the site itself. A response from Price Forbes arrived by telex on January 22, 1986, which included the following:

“As first policy applicable incepts 19 April 1956, it would appear that at no time did underwriters insure American Lumber and fail to see where policies would respond. Await your comments.”

On August 21, 1986, CBI prepared a status report on the Westborough site and CBI’s financial contribution to the cleanup, which Marsh & McLennan forwarded to Price Forbes. London responded on November 7, 1986, with a reservation of rights letter. Over the next year, Price Forbes sent three subsequent telexes to Marsh & McLennan seeking CBI’s response to the original January 22, 1986, telex. CBI continued to send Marsh & McLennan status reports for the Westborough site, and in June, 1987, CBI’s legal department sent Marsh & McLennan information concerning other contaminated ALT sites.

During this same period, CBI reached a settlement agreement with Koppers, pursuant to which CBI’s contribution to the West-borough cleanup was capped at $500,000. Also included in the settlement was Koppers’s agreement to indemnify CBI for cleanup costs at a total of eleven (including the Westborough [651]*651facility) former ALT sites (the 1986 indemnity agreement). In November, 1987, CBI joined in a consent decree with the EPA and Koppers, approved by the United States District Court for the District of Massachusetts, whereby CBI paid $500,000 towards the Westborough site cleanup. Between 1984 and 1988, CBI’s legal expenses in connection with the Westborough site totaled $105,184.

B. The Weed site.

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Bluebook (online)
797 N.E.2d 434, 59 Mass. App. Ct. 646, 2003 Mass. App. LEXIS 1112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-bridge-iron-co-v-certain-underwriters-at-lloyds-massappct-2003.