Keyspan Gas East Corp. v. Munich Reinsurance America, Inc.

46 Misc. 3d 395, 998 N.Y.S.2d 781
CourtNew York Supreme Court
DecidedOctober 17, 2014
StatusPublished
Cited by3 cases

This text of 46 Misc. 3d 395 (Keyspan Gas East Corp. v. Munich Reinsurance America, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keyspan Gas East Corp. v. Munich Reinsurance America, Inc., 46 Misc. 3d 395, 998 N.Y.S.2d 781 (N.Y. Super. Ct. 2014).

Opinion

OPINION OF THE COURT

Saliann Scarpulla, J.

In this insurance coverage action, plaintiff Keyspan Gas East Corporation (Keyspan) seeks, inter alia, a declaration that defendant Century Indemnity Company (Century) is obligated to indemnify it for costs of environmental cleanup at two former manufactured gas plant sites located in Hempstead and Rock-away Park. Between 1953 and 1969, Century issued eight excess liability insurance policies to Keyspan’s predecessor-in-interest, Long Island Lighting Company, which are the insurance polices at issue on this motion.1

Century now moves for partial summary judgment seeking a declaration that: (1) Century is not responsible for any portion of the property damage at the Hempstead and Rockaway Park sites that occurred outside the policy periods; and (2) any [397]*397covered costs are to be allocated pro rata over the entire period during which property damage at each site occurred, which Century asserts is 1905 to 2001 for the Hempstead site and 1882 to 2012 for the Rockaway Park site.

Century contends that a pro rata time on the risk allocation should apply because neither party can produce evidence as to how much property damage occurred within a given policy period. Century argues that, under this method, the total cost for each site should be allocated over the entire period during which property damage occurred, and Century should then only be liable for the pro rata share for the years that its policies were in effect, 1953 to 1969.

In support of its argument that property damage occurred at the Hempstead site between 1905 to 2001, and at the Rockaway Park site between 1882 to 2012, Century submits a report from its expert Charles Anderson, in which he states that soil contamination began within two years of the start of operations at Hempstead and Rockaway Park. As operations began at Hempstead in 1903 and at Rockaway Park in 1880, Century claims that property damage began to occur in 1905 and 1882, respectively.

Century asserts that property damage was ongoing at Hemp-stead until 2001, based on Keyspan’s expert report from Dr. Robert Powell, in which he stated that the groundwater plumes at Hempstead became stable in 2002. As to the Rockaway Park site, Century claims that property damage was ongoing until 2012, based on Dr. Powell’s opinion that tar migration would continue into Jamaica Bay until remedial barrier walls were built, which had not yet occurred in 2012.

Lastly, Century argues that the court should not truncate the allocation period to the years when insurance was available in the marketplace because it would then be responsible for indemnifying Keyspan for damage that occurred outside the policy periods. Century claims that, in a previous ruling, this court already declined to truncate the allocation period, and that any truncated allocation period would frustrate the legislature’s intent in enacting former Insurance Law § 46 in 1971, which prohibited the issuance of pollution insurance between 1971 and 1986.2

In opposition, Keyspan argues that the court should allocate costs to the periods of time when insurance for environmental [398]*398risks was available in the marketplace. Keyspan argues that the New York state courts have adopted the “availability of insurance” allocation method set forth in Stonewall Ins. Co. v Asbestos Claims Mgt. Corp. (73 F3d 1178, 1202 [2d Cir 1995]), and that this allocation method is consistent with the New York Court of Appeals decision in Consolidated Edison Co. of N.Y. v Allstate Ins. Co. (98 NY2d 208 [2002]) (Con Edison).

Keyspan further argues that, as the insurer, Century bears the burden of demonstrating when environmental insurance was available in the marketplace, and a disputed issue of fact exists as to when such insurance was available. Finally, Key-span argues that Century’s motion should be denied because an issue of fact exists as to when property damage occurred at each site. Keyspan emphasizes that the insurance policies cover third-party property damage only, and thus, an issue of fact exists as to when third-party property damage occurred.

Discussion

Where an injury such as environmental damage occurs over a number of years and triggers multiple sequential insurers and policies, courts have determined damages based upon pro rata allocation. “Because in these types of cases it is virtually impossible to allocate to each policy the liability for injuries occurring only within its policy period, the courts are left with the nettlesome problem of how to allocate damages among the policies.” (15 Steven Plitt et al., Couch on Insurance 3d § 220:25 [2014].)

A pro rata “time on the risk” allocation requires costs to be allocated according to the number of years that the insurer was on the risk “by multiplying the total loss by a fraction that has as its denominator the entire number of years of the claimant’s [399]*399injury, and as its numerator the number of years within that period when the policy was in effect.” (Certain Underwriters at Lloyd’s, London v Foster Wheeler Corp., 36 AD3d 17, 20-21 [1st Dept 2006] [internal quotation marks and brackets omitted], quoting Stonewall, 73 F3d at 1202.) “Proration of liability among the insurers acknowledges the fact that there is uncertainty as to what actually transpired during any particular policy period.” (Con Edison, 98 NY2d at 224.)

For years where an insured has no insurance coverage, the insured generally bears its own pro rata share of the loss. (15 Steven Plitt et al., Couch on Insurance 3d § 220:31 [2014].) Proration to the insured is appropriate for the years where the insured “elected not to purchase insurance or purchased insufficient insurance.” (Stonewall, 73 F3d at 1203.) For those years, the insured is treated as self-insured and bears responsibility for its pro rata share of damages.

Proration to the insured is inappropriate, however, for those years where insurance was unavailable in the marketplace. (Id.; Nomet Mgt. Corp. v Virginia Surety Co., Inc., 2012 NY Slip Op 33697[U], *8 [Sup Ct, NY County 2012] [“In determining allocation, the court must also inquire whether during periods of no insurance, there was appropriate insurance available in the marketplace”].)

Century argues that a pro rata allocation over the period where insurance is available will require it to indemnify Key-span for property damage outside the policy periods. Pro rata allocation, however, is not intended to hold an insurer liable for damages not within the coverage of the policies, but instead to allocate damages to insurance policies based on the “time on the risk and the degree of risk assumed.” (Stonewall, 73 F3d at 1203.) For those periods of time where no insurance was purchased, courts prorate liability to the insured as if it has assumed the risk “either by declining to purchase available insurance or by purchasing ... an insufficient amount of insurance” which is determined by an objective test of whether insurance was available in the marketplace. (Id. at 1204; Olin Corp. v Insurance Co. of N. Am., 221 F3d 307, 325 [2d Cir 2000].)

Further, Century’s argument that it is only liable under the policies for property damage that occurs within the policy periods is misplaced.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brooklyn Union Gas Co. v. Century Indem. Co.
2024 NY Slip Op 30032 (New York Supreme Court, New York County, 2024)
Keyspan Gas E. Corp. v. Munich Reinsurance Am., Inc.
96 N.E.3d 209 (Court for the Trial of Impeachments and Correction of Errors, 2018)
Decker Manufacturing Corp. v. Travelers Indemnity Co.
106 F. Supp. 3d 892 (W.D. Michigan, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
46 Misc. 3d 395, 998 N.Y.S.2d 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keyspan-gas-east-corp-v-munich-reinsurance-america-inc-nysupct-2014.