Cotter Corp. v. American Empire Surplus Lines Insurance Co.

64 P.3d 886, 2002 Colo. App. LEXIS 1536, 2002 WL 1991242
CourtColorado Court of Appeals
DecidedAugust 29, 2002
DocketNo. 01CA1791
StatusPublished
Cited by2 cases

This text of 64 P.3d 886 (Cotter Corp. v. American Empire Surplus Lines Insurance Co.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotter Corp. v. American Empire Surplus Lines Insurance Co., 64 P.3d 886, 2002 Colo. App. LEXIS 1536, 2002 WL 1991242 (Colo. Ct. App. 2002).

Opinion

Opinion by

Judge TAUBMAN.

In this declaratory judgment action, plaintiff, Cotter Corporation, appeals various summary judgments entered against it and in favor of defendants, seven insurance companies, on the basis that three different pollution exclusion clauses in their policies excluded coverage for claims brought by subdivision residents who allegedly were harmed by pollution from Cotter’s uranium mill. Because we conclude that the policies issued by the seven defendant insurance companies — American Empire Surplus Lines Insurance Company, Great American Insurance Company, American National Fire Insurance Company, American Employers’ Insurance Company, Lexington Insurance Company, Granite State Insurance Company, and First State Insurance Company- — did not require these insurers to provide coverage or a defense to Cotter, we affirm.

I. Background

The controversy here concerns Cotter’s operation of a uranium mill on a 1.4-square-mile site in Canon City, Colorado, from approximately 1958 until 1986. The site contains an inactive alkaline leach process mill, an old tailings pond disposal area, and a new tailings pond disposal area. Following the construction of the Cotter mill in 1957, the mill operators began extracting a crude uranium oxide known as “yellowcake” from uranium ore. After crushing and processing the uranium oxide, the yellowcake was transported to Illinois for use by Cotter’s parent company.

As part of the milling process, a large residue of liquid sludge, called tailings or raffinates, was piped into the tailing ponds. The tailings contained a small amount of residual uranium that had about eighty-five percent of the radioactivity of the original ore. The tailings also contained nonradioactive hazardous materials such as molybdenum, nickel, arsenic, and selenium.

In 1989, 532 residents of Lincoln Park, the Canon City subdivision near the Cotter mill, sued Cotter, its parent corporation, and others in federal district court in Colorado. Boughton v. Cotter Corp., No. 89-2-1505 (D. Colo, filed Sept. 1989). Plaintiffs alleged that material from Cotter’s uranium mill had seeped from the tailings ponds into their neighborhood, causing personal injury, property damage, and economic harm.

In 1991, another sixty-seven plaintiffs filed a similar action. Dodge v. Cotter Corp., No. 91-2-1861 (D. Colo, filed Oct. 24,1991).

[888]*888Cotter gave timely notice of the Boughton and Dodge claims to its insurers, the defendants here, all of whom denied coverage and refused to defend or indemnify Cotter, based upon pollution exclusion clauses in their policies.

At issue here are the following policies: a Lexington commercial liability policy, effective August 1987 to August 1988; an American Empire policy, effective August 1995 to August 1996; seven policies issued by Great American and American National, effective June 1975 through August 1986; three American Employers’ primary policies, effective June 1971 through June 1974; an American Employers’ umbrella policy, effective October 1970 through January 1973; four Lexington excess insurance policies, effective January 1974 to June 1979; a Granite State excess policy, effective June 1982 to June 1983; and a First State excess umbrella policy, effective March 1977 to June 1978.

Following a bellwether trial in the Bough-ton case resulting in a judgment against Cotter for nearly $80,000, Cotter entered into a confidential settlement with the remaining Boughton plaintiffs. See In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019-20 (5th Cir.1997)(bellwether trial addresses claims of some members of a large group to enhance the prospects of settlement and to resolve common issues). In Dodge, several trials resulted in jury verdicts against Cotter for more than $16 million, and with interest, the judgment exceeded $43 million. Cotter has appealed those judgments to the Tenth Circuit Court of Appeals, and those appeals are pending.

Seeking coverage for its liability in the Boughton and Dodge cases, Cotter then filed this declaratory judgment action. Between October 1998 and May 2001, the trial court granted summary judgments in favor of the insurers based upon qualified pollution exclusions in their policies. The trial court determined that because Cotter had expected and intended a discharge of pollutants from the tailings ponds during the policy periods, the exception to the qualified pollution exclusions did not require the insurers to provide coverage to Cotter. As relevant here, the trial court also concluded that two excess insurers, American Empire and First State, had no duty to defend Cotter.

The trial court granted Lexington’s summary judgment based upon an absolute pollution exclusion, because it was undisputed that Cotter had discharged contaminants into the land and atmosphere.

As discussed in more detail below, the qualified pollution exclusion is so named because it excludes from coverage all pollution-related injuries, but is limited or “qualified” by an exception that restores coverage for “sudden and accidental” events or “sudden, unintended and unexpected happening[s].” In contrast, those policies containing an absolute pollution exclusion do not contain such a limiting provision.

From these summary judgments, Cotter now appeals.

II. Standard of Review

We review a summary judgment de novo, applying the same standards that govern the trial court’s determination. Summary judgment is warranted only when there is a clear showing that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(e); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988); Waskel v. Guar. Nat’l Corp., 23 P.3d 1214 (Colo.App.2000).

The moving party has the initial burden to show that there is no genuine issue of material fact. The burden then shifts to the nonmoving party to establish that there is a triable issue of fact. AviComm, Inc. v. Colo. Pub. Util. Comm’n, 955 P.2d 1023 (Colo.1998).

The nonmoving party is entitled to all favorable inferences that may be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party. Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo.1999).

III. Qualified Pollution Exclusion Clauses

Cotter contends that the trial court improperly interpreted the qualified pollution [889]*889exclusion clauses in the policies at issue. It further argues that under the correct interpretation, disputed issues of material fact prevent summary judgment. We disagree.

A. Contract Interpretation

At issue here is the interpretation of the various “sudden and accidental” and “sudden, unintended and unexpected” exceptions to the pollution exclusion clauses.

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64 P.3d 886, 2002 Colo. App. LEXIS 1536, 2002 WL 1991242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotter-corp-v-american-empire-surplus-lines-insurance-co-coloctapp-2002.