Essex Walnut Owner L.P. v. Aspen Specialty Ins. Co.

335 F. Supp. 3d 1146
CourtDistrict Court, N.D. California
DecidedAugust 15, 2018
DocketCase No. 17-cv-06435-EMC
StatusPublished
Cited by6 cases

This text of 335 F. Supp. 3d 1146 (Essex Walnut Owner L.P. v. Aspen Specialty Ins. Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Essex Walnut Owner L.P. v. Aspen Specialty Ins. Co., 335 F. Supp. 3d 1146 (N.D. Cal. 2018).

Opinion

EDWARD M. CHEN, United States District Judge

Plaintiff Essex Walnut Owner L.P. purchased an insurance policy-an Environmental Legal Liability Policy-from Defendant Aspen Specialty Insurance Company. See Jt. Undisp. Fact ¶ 1. The policy covered a certain site in Walnut Creek where Essex intended to demolish existing structures and build a new, mixed-use development. See Jt. Undisp. Fact ¶¶ 4-6. As part of this project, Essex had to do some excavation in the site. During excavation, Essex discovered debris within part of the site (the "Excavated Area")-more specifically, wood, *1148concrete, glass, metal, tires, and large, buried tree trunks. See Jt. Undisp. Fact ¶¶ 11-12. Essex had that debris removed. The parties reached a settlement regarding the cost to Essex of removing the debris. The instant case concerns whether, under the insurance policy, Aspen should have paid for other costs incurred by Essex related to the site-in particular, costs incurred in re-designing a new shoring system allegedly necessitated by the debris outside the Excavated Area.

Currently pending before the Court is Aspen's motion for summary judgment and Essex's motion for partial summary judgment. Having considered the parties briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS Aspen's motion and DENIES Essex's motion.

I. FACTUAL & PROCEDURAL BACKGROUND

As noted above, Essex purchased an insurance policy titled "Environmental Legal Liability Policy" from Aspen. The critical provisions of the policy are as follows:

• The policy provided coverage for "[c]lean-up cost incurred by the insured resulting from a pollution condition on, at, under, or migrating from or through an insured location." Policy ¶ 1(a) (some bold omitted).1
• "Pollution condition means the discharge, emission, seepage, migration, dispersal, misdelivery, release or escape, or illicit abandonment by a third-party without the insured's consent of any pollutant into or upon land, or any structure on land, the atmosphere or any watercourse or body of water including groundwater, provided such pollutant is not naturally present in the environment in the concentration or amounts discovered." Policy at 13 (some bold omitted).
• "Pollutant means any solid, liquid, gaseous or thermal irritant or contaminant, including without limitation smoke, vapors, soot, silt, sediment, fumes, acids, alkalis, chemicals, hazardous substances, petroleum hydrocarbons, low level radioactive matter or waste, microbial matter, legionella pneumophila, medical, infectious or pathological waste or waste materials, methamphetamines, electromagnetic fields, biological agent or nanotechnology matter...." Policy at 13 (some bold omitted).
• "Clean-up cost means reasonable and necessary expense incurred with the insurer's prior written consent, including legal expense and restoration cost , to investigate, abate, contain, treat, remove, remediate, monitor, neutralize or dispose of contaminated soil, surface water or groundwater or other contamination caused by a pollution condition but only: (i) to the extent required by environmental law, required to satisfy a voluntary clean-up program, or, in the absence of applicable environmental law, as determined reasonable and necessary by an environmental professional; or (ii) for cost incurred by any governmental entity of the United States of America including its territories and possessions or Canada or by a third-party; provided however reasonable and necessary expense incurred *1149under this item (ii) may be incurred without the insurer's prior written consent but only if and to the extent such expense was incurred by such governmental entity without advance notice to the insured or reasonable opportunity for the insured to consent to, agree to, comment upon, or object to such expense." Policy at 10 (some bold omitted).
• "Restoration cost means reasonable and necessary expense incurred by the insured with the insurer's prior written consent to repair or replace damaged real or personal property, when such damage occurs during the course of incurring covered clean-up cost , microbial matter prevention cost, emergency response cost or crisis cost, regardless of whether such damage to such real or personal property is caused by a pollution condition ." Policy at 13 (some bold omitted).

Essex obtained the insurance policy for a site where it intended to build a new, mixed-use development. See Jt. Undisp. Fact ¶¶ 4-5. Prior to demolition and construction, the site consisted of small retail shops, small office buildings, and a paved parking lot. See Docket No. 32-1 (Bain Decl. ¶ 3).2 It also appears that a gas station previously operated at the site. See Docket No. 32-1 (Bain Decl. ¶ 3). Essex's plan was "create a mixed residential and commercial use development with underground parking two levels below grade." Docket No. 32-1 (Bain Decl. ¶ 3).

As part of the project, excavation was required, and Essex had a temporary shoring system designed for it "to protect the integrity of the excavation, as well as to stabilize the area outside of excavation." Docket No. 32-2 (Berger Decl. ¶ 3); see also Jt. Undisp. Fact ¶ 6 (stating that Essex had a "shoring system" designed for it "as part of the planned construction and mixed-use development at the Site"); Docket No. 32-1 (Bain Decl. ¶ 5) (testifying that ENGEO, the company Essex hired to do a geotechnical report for the site, "recommended temporary shoring to facilitate construction of the underground parking and development"). The temporary shoring system "consisted of retaining walls anchored by 'tie backs' drilled at a downward angle into soil outside the retaining walls." Jt. Undisp. Fact ¶ 7.

During excavation, Essex discovered debris buried in the Excavated Area. See Jt. Undisp. Fact ¶ 11. "The debris consisted of wood, concrete, glass, metal, tires, and large, buried tree trunks." Jt. Undisp. Fact ¶ 12. Essex ultimately had that debris removed and, as noted above, the parties reached a settlement regarding the cost of removing the debris from the Excavated Area.

The dispute between the parties is related to the area outside of the Excavated Area. Essex maintains that (1) there is debris outside of the Excavated Area and that (2) the debris outside of the Excavated Area caused certain tie-backs of the shoring system to fail. The tie-backs that failed were anchored into soil outside of the Excavated Area. See Jt. Undisp. Fact ¶ 20. According to Aspen, there is no evidence or insufficient evidence of debris outside of the Excavated Area.3 See, e.g. , Jt. Undisp. Fact ¶ 21 ("Soil samples were not collected or tested from the area outside *1150the Excavated Area in which the failing tie backs were anchored.").

Essex has not asked Aspen to cover the cost of removing any debris from outside of the Excavated Area.

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Bluebook (online)
335 F. Supp. 3d 1146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/essex-walnut-owner-lp-v-aspen-specialty-ins-co-cand-2018.