UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 94-1707
RICHARD A. MOTTOLO AND SERVICE PUMPING & DRAIN CO., INC., Plaintiffs - Appellants,
v.
FIREMAN'S FUND INSURANCE COMPANY, ET AL., Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin, Circuit Judge,
and Barbadoro,* District Judge.
James H. Gambrill, with whom Engel, Gearreald & Gardner,
P.A. was on brief for appellants.
Kevin C. Devine, with whom Devine & Nyquist, Joseph S.
Crociata, Stuart L. Peacock, Gilberg & Kurent, Stephen Dibble and
Ouellette, Hallisey, Dibble & Tanguay, P.A. were on brief for
appellees. Thomas W. Brunner, Laura A. Foggan, Richard H. Gordin, Lon
A. Berk, Dennis A. Tosh and Wiley, Rein & Fielding on brief for
Insurance Environmental Litigation Association, amicus curiae.
January 3, 1995
* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Chief Judge. Plaintiffs-appellants, Richard TORRUELLA, Chief Judge.
Mottolo ("Mottolo") and Service Pumping and Drain Co., Inc.
("Service"), appeal the district court's summary judgment ruling
that no coverage was provided under insurance policies issued to
Mottolo by defendants-appellees, Fireman's Fund Insurance Company
("Fireman's Fund"), United States Fidelity & Guaranty Company
("USF & G") and Aetna Casualty and Surety Company ("Aetna"), for
injury to property caused by the dumping of hazardous waste by
Mottolo and Service. For the reasons set forth below, we affirm
the district court's entry of summary judgment.
I. I.
BACKGROUND BACKGROUND
On September 8, 1983, and February 4, 1984,
respectively, the United States and the State of New Hampshire
(together, "the government") brought suits in the United States
District Court for New Hampshire against Mottolo, Service, and
others, pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
9601-9675, amended by the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613
(1986), and state law, to recover costs associated with the
cleanup of a site used by Mottolo and Service to dump hazardous
waste. The two cases were later consolidated. On August 28,
1988, the district court granted in part the government's motion
for summary judgment, finding Mottolo and Service jointly and
severally responsible for all cleanup costs incurred by the
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government at the dump site. United States v.
Mottolo, 695 F. Supp. 615, 631 (D.N.H. 1988).
Mottolo and Service then brought this action in the
United States District Court for New Hampshire seeking a
declaration that the defendant insurance companies are obligated
to indemnify them for the costs of cleaning up the dump site.
Upon cross motions for summary judgment, the district court found
that because plaintiffs' damages did not arise from an
"occurrence," as defined by defendants' insurance policies,
defendants did not have a duty to indemnify the plaintiffs.
Mottolo v. Fireman's Fund Ins. Co., 830 F. Supp. 658 (D.N.H.
1993). The district court therefore granted defendants' motion
for summary judgment and denied plaintiffs' cross motion for
summary judgment. This appeal followed.
II. II.
STANDARD OF REVIEW STANDARD OF REVIEW
We review a district court's grant of summary judgment
de novo and read the record in a light most favorable to the non-
moving party, drawing all inferences in the non-moving party's
favor. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.
1993), cert. denied, U.S. , 114 S. Ct. 1398, 128 L.Ed.2d 72
(1994). Summary judgment is appropriate when "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
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is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). A "material" fact is one "that might affect the outcome
of the suit under the governing law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986).
A dispute about a material fact is "genuine" if "the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party." Id.
Essentially, Rule 56(c) mandates the entry of summary
judgment "against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 325,
106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). As to issues on which
the nonmovant has the burden of proof, the movant need do no more
than aver "an absence of evidence to support the nonmoving
party's case." Id. at 325. The burden of production then shifts
to the nonmovant, who, to avoid summary judgment, must establish
the existence of at least one question of fact that is both
"genuine" and "material." See Anderson, 477 U.S. at 248. The
nonmovant, however, may not rest upon mere denial of the
pleadings. Fed. R. Civ. P. 56.
III. III.
DISCUSSION DISCUSSION
A. Duty to Indemnify A. Duty to Indemnify
Under New Hampshire law, an insurer's duty to indemnify
an insured may be determined by an analysis of the underlying
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allegations against the insured and the express terms of the
policy. Great Lakes Container v. National Union Fire Ins., 727
F.2d 30, 32 (1st Cir. 1984) (citing Aetna Ins. Co. v. State
Motors, Inc., 109 N.H. 120, 244 A.2d 64 (1968)). If the
complaint in the underlying action does not on its face establish
lack of coverage, however, inquiry may proceed into independent
evidence. M. Mooney Corp. v. United States Fidelity & Guar. Co.,
Inc., 136 N.H. 463, 469, 618 A.2d 793 (1992). When interpreting
the policy in light of these facts, a reviewing court employs an
objective standard, inquiring whether a reasonable person in the
insured's position would have expected indemnity for the claims
asserted against him. See Merchants Ins. Group v. Warchol, 132
N.H. 23, 27, 560 A.2d 1162 (1989).
B. The "Occurrence" Policy Provision B. The "Occurrence" Policy Provision
Mottolo seeks a declaration of coverage from Fireman's
Fund, USF & G and Aetna under insurance policies which provide
coverage for claims brought against an insured because of
property damage caused by an "occurrence." The phrase
"occurrence," is defined in each policy as "an accident,
including continuous or repeated exposure to conditions, which
results in bodily injury or property damage neither expected nor
intended from the standpoint of the insured." The threshold, and
dispositive, question in this case is whether Mottolo's
contamination of property was an "accident," and therefore an
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"occurrence" covered by the relevant insurance policies.1
The New Hampshire Supreme Court has addressed
"occurrence" policy provisions virtually identical to the one at
bar in a line of cases beginning with Vermont Mutual Ins. Co. v.
Malcolm, 128 N.H. 521, 517 A.2d 800 (1986) and ending most
recently in Providence Mutual Fire Ins. Co. v. Scanlon, 138 N.H.
301, 638 A.2d 1246 (1994) and Green Mountain Ins. Co. v. Foreman,
138 N.H. 440, 641 A.2d 230 (1994).2 In between, the Court
decided Jespersen v. U.S. Fidelity & Guaranty Co., 131 N.H. 257,
260, 551 A.2d 530 (1988) and Fisher v. Fitchburg Mut. Ins. Co.,
131 N.H. 769, 560 A.2d 630 (1989). In those cases, the Court
construed the term "accident" in the context of "occurrence"
coverage to mean "'an undesigned contingency, . . . a happening
by chance, something out of the usual course of things, unusual,
fortuitous, not anticipated, and not naturally to be expected.'"
Jespersen, 131 N.H. at 260 (quoting Vermont Mutual, 128 N.H. at
523) (other citations omitted). The Jespersen Court explained
that the question of whether the causal event was "fortuitous" is
1 Because we agree with the district court that Mottolo's actions did not constitute an "accident," and therefore were not an "occurrence" covered by the insurance policies, we do not reach the question of whether the property damage was expected or intended from the standpoint of Mottolo, although, as explained infra, that inquiry is at least partly subsumed by our analysis
of whether the contamination was an "accident."
2 The substantive law of New Hampshire controls this litigation. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61
S. Ct. 1020, 85 L.Ed. 1477 (1941) (a federal court sitting in diversity must apply the substantive law that would be applied by the state in which it sits); American Title Ins. Co. v. East West
Fin. Corp., 959 F.2d 345, 348 (1st Cir. 1992).
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answered by considering not "'the character of the act viewed in
isolation, but . . . the character of the act viewed, with
reference to the insured, as a cause of injury.'" Id. (quoting
Vermont Mutual, 128 N.H. at 524).
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In Scanlon, the New Hampshire Supreme Court reiterated
the test formulated in Vermont Mutual for determining whether
there is an accident:
"If the insured did not intend to inflict the injury on the victim by his intentional act, and the act was not so inherently injurious that the injury was certain to follow from it, the act as a contributing cause of injury would be regarded as accidental and an 'occurrence.'"
Scanlon, 638 A.2d at 1249 (quoting Vermont Mutual, 128 N.H. at
524). An intentional act is "inherently injurious if it is
certain to result in some injury, although not necessarily the
particular alleged injury." Id.
Mottolo's actions in dumping materials at the site
were, of course, intentional. Therefore, his actions were not
"accidental" if either 1) he intended to cause the injury or 2)
his actions were "inherently injurious." Mottolo has sworn by
affidavit that he did not intend to injure property by dumping
the waste. The question, therefore, is whether Mottolo's
intentional acts of dumping hazardous waste were so "inherently
injurious" that they could not be performed without a certainty
that some degree of injury to property would result. This is an
objective inquiry for which Mottolo's "intent" to injure is
irrelevant. See Jespersen, 131 N.H. at 261 ("Because their
intentional act was inherently injurious, it is of no consequence
that the Jespersens have sworn, without contradiction, that they
did not intend to cause the alleged injuries."); see also Fisher,
131 N.H. at 773.
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C. Underlying Allegations C. Underlying Allegations
The United States Environmental Protection Agency
("EPA") made the following allegations of pollution in paragraphs
10 and 11 of its Complaint in the underlying action:
10. Between at least 1975 and 1978 Richard Mottolo buried more than 1650 drums and other smaller containers containing waste, including hazardous substances, in the southwest portion of the Mottolo site. These wastes were transported from K.J. Quinn and Co., Inc. and Lewis Chemical Corporation and disposed of at the Mottolo site.
11. The drums and other containers were buried in an area in the southwest portion of the site adjacent to the intermittent stream.3
Because these allegations are by themselves
insufficient to determine whether there was an "occurrence"
within the meaning of the insurance policies -- or, more
precisely, whether Mottolo's acts were so inherently injurious
that some degree of injury to property was certain to result --
we look to the facts underlying the complaint.4
At all times relevant to this litigation, Mottolo owned
65 acres of land on Blueberry Hill Road ("the site") in Raymond,
New Hampshire. In 1973, Mottolo purchased Service, a company
whose primary business involved cleaning out drains and grease
traps, and pumping out septic tanks and cesspools. Service
3 The State of New Hampshire made essentially the same allegations in its Complaint.
4 We review those facts in the light most favorable to Mottolo and Service. See Nereida-Gonz lez v. Tirado-Delgado, 990 F.2d
701, 702 (1st Cir. 1993).
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disposed of waste accumulated from these operations -- generally
sand, grease, and sewage -- by taking the waste to a contractor,
or by discharging the sewage into the city sewer system through
licensed spots. In 1975 and 1977, respectively, Service
contracted with K.J. Quinn and Company ("Quinn") and the Lewis
Chemical Corporation ("Lewis") to pick up and dispose of waste
generated by those companies. Mottolo picked up waste for Quinn
and Lewis until sometime in 1978, disposing approximately 200 to
300 barrels of waste from Lewis and 1,200 to 1,300 barrels of
waste from Quinn.
Mottolo or one of his employees drove the Service dump
truck to pick up drums and barrels of waste at Quinn's two
facilities in Malden, Massachusetts and Seabrook, New Hampshire.
Mottolo knew Quinn manufactured shoe polish at its Malden
facility and polyurethane at its Seabrook facility. Mottolo was
informed at the Seabrook plant that Quinn "had polyurethane which
is very thick -- it looks like wax." Most of the containers
usually had the words "slop" or "waste" written on them.
Although most of the drums and barrels Mottolo received from
Quinn were sealed, Mottolo occasionally had to replace covers on
the containers and observed that they held a thick "goopy"
substance or "water slop." On one occasion, Service picked up a
cardboard container from Quinn which leaked a "rancid" "super,
super strong" smelling liquid onto the pavement at the site.
Mottolo made no attempt to ascertain the contents of the waste
containers.
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Mottolo knew Lewis ran a solvent factory and knew that
the sludge he hauled was leftover from Lewis' operations.
Mottolo's agreement with Lewis began when a Lewis official called
Mottolo and informed him that they had "a lot of solvent and were
looking . . . to get rid of it." Mottolo informed him that he
had a dump, but that he did not have a permit. They nevertheless
agreed that Mottolo would dispose of the containers. The drums
and barrels Mottolo picked up at Lewis were always sealed and he
never saw what was in them when he picked them up.
Mottolo, or one of his employees, would transport the
drums and barrels to the site on Mottolo's truck and then dump
them. After ten to fifteen loads accumulated, George Frotten, a
Mottolo employee, would bulldoze the containers in an attempt to
level off the site. Dirt was then placed over them. During the
bulldozing, barrels and drums would be crushed and flattened,
causing them to rupture and spill their contents into the soil.
Mottolo knew that the containers broke during the bulldozing and
that their contents would spill into the soil. Mottolo stated
that "[w]hen a drum broke open, you would have reds or blues. . .
. It would look like shoe polish." He stated that some of the
contents would "sit there and mass." Mottolo once brought two
tank trucks of liquid waste from Quinn and pumped their contents
directly into the dump site.
D. The District Court's Analysis D. The District Court's Analysis
In finding that Mottolo's acts were "inherently
injurious," the district court applied the "exceptional
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circumstances" test articulated by the New Jersey Supreme Court
in Morton Int'l, Inc. v. General Accident Ins. Co., 134 N.J. 1,
629 A.2d 831 (1993), rather than New Hampshire's "objective"
test. Mottolo, 830 F. Supp. at 664. The district court
distinguished the Vermont Mutual-Scanlon line of cases, stating
that "'environmental-pollution litigation should generally [not]
be included in that category of cases . . . in which
reprehensible conduct justifies a presumption that injury was
intended.'" Id. at 664 (quoting Morton, 134 N.J. at 86).5
Applying the Morton standard, the court listed several
"exceptional circumstances" that enabled it to infer Mottolo's
subjective intent to injure. Id. at 664-65.
The district court was bound to apply the law of New
Hampshire and erred in not doing so.6 It is perhaps plausible
that, in applying Morton, the district court was expressing its
belief that New Hampshire courts would distinguish Vermont Mutual
5 The rationale for the distinction is that "'insureds held responsible for environmental pollution vary significantly in their degree of culpability for the harm caused by pollutant discharge.'" Mottolo, 830 F. Supp. at 664 (quoting Morton, 134
N.J. at 86). Therefore, "'[a] general rule in environmental- pollution coverage litigation that would permit intent to injure to be presumed simply on the basis of a knowing discharge of pollutants would be unjustified.'" Id. (quoting Morton, 134 N.J.
at 86). Regardless of the merits of this proposition, there is no basis in Vermont Mutual and its progeny for inferring that the
New Hampshire Supreme Court would adopt it. Rather, the law of New Hampshire, as evolved from Vermont Mutual through Scanlon and
Foreman, is clear. The Court applies an objective test to
determine whether the causation of injury was an "accident" and, therefore, an "occurrence" for insurance coverage purposes.
6 We note that the "exceptional circumstances" standard applied by the district court was actually more favorable to Mottolo than New Hampshire's objective, reasonable person standard.
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and its progeny and apply the Morton standard. In any case,
however, as discussed below, we find incorrect the district
court's premise for distinguishing the New Hampshire cases --
that they relied on the "reprehensible" nature of the claimant's
conduct to justify the presumption of intent to injure.7 Once
the premise falls, so does the justification for using a standard
other than that expressly pronounced by the New Hampshire Supreme
Court.
E. Analysis E. Analysis
The proper question, under New Hampshire law, is
whether a reasonable person in Mottolo's shoes would foresee that
his dumping of waste was certain to cause some degree of injury
to property. See Fisher, 131 N.H. at 773 ("A reasonable person
would foresee that entering into two contracts to sell the same
property would inevitably lead to the breach of at least one of
7 Vermont Mutual did involve "reprehensible" conduct. See
Vermont Mutual, 128 N.H. at 521 (act of sexually assaulting young
boy inherently injurious because psychological injury certain to result). In Fisher, however, the New Hampshire Supreme Court
held that the sellers' act of signing two purchase and sale agreements for his home was inherently injurious because the sellers would inevitably have to breach one of the contracts. Fisher, 131 N.H. at 773. Even a willful breach of a contract
cannot properly be termed "reprehensible" conduct; certainly not on par with the conduct at issue in Vermont Mutual. In
Jespersen, the Court held that the claimant's discharge of his
business partner was inherently injurious because some degree of mental and physical distress was a natural consequence. Jespersen, 131 N.H. at 261. The discharge of a partner, by
itself, is not "reprehensible" conduct. Moreover, the Court went so far as to note that even a justifiable termination is
inherently injurious. Id. (emphasis added). In summary, the New
Hampshire Supreme Court has never linked its objective, "inherently injurious" standard to the "reprehensible" nature of any of the claimants' conduct.
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the two contracts."). The New Hampshire Supreme Court
"determine[s] whether an injury was the result of an accident not
by considering 'the character of the act viewed in isolation, but
. . . the character of the act viewed, with reference to the
insured, as a cause of injury.'" Jespersen, 131 N.H. at 260
(emphasis added) (quoting Vermont Mutual, 128 N.H. at 524).
"[T]he Court does not look to the actor's subjective intent that
the result in question occur, but rather, the Court 'may infer
that the actor's state of mind was the same as a reasonable
person's state of mind would have been.'" King v. Prudential
Property and Cas. Ins. Co., 684 F. Supp. 347, 349 (D.N.H. 1988)
(quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and
Keeton on the Law of Torts 8, at 35-36).
Although the district court applied an incorrect legal
standard, our application of the proper legal standard leads to
the same result as that reached by the district court. Under New
Hampshire's objective standard, Mottolo's haphazard dumping,
bulldozing and burying of drums containing chemical waste would,
at first blush, appear objectively certain to result in "some
injury" to adjacent property.8 During the routine bulldozing of
the containers, they would be crushed, flattened, and punctured,
causing their contents to spill into the soil. The EPA
ultimately recovered from the site more than 1,650 drums and
8 We note that it is not necessary that it be certain that the act cause the particular injury alleged; it is only necessary that it was certain to cause some injury. Scanlon, 638 A.2d at
1249.
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other smaller containers which held toxic, flammable, corrosive,
irritant and explosive materials.9 Mottolo was aware that the
containers were leaking into the soil. On one occasion, Mottolo
pumped two tanks of liquid waste directly into the soil. Because
the site is located adjacent to an intermittent stream, it was
foreseeable that whatever was being dumped would find its way
into the waters of the stream.10
Mottolo argues, however, that he did not know he was
dumping hazardous waste. The test under New Hampshire law is
whether a reasonable person under the circumstances would have
known that he was dumping harmful substances. See Jespersen, 131
N.H. at 260; Fisher, 131 N.H. at 773. The facts presented on
summary judgment, viewed most favorably to Mottolo, establish
that a reasonable person under the circumstances would have known
that he was dumping some form of hazardous substances, or, at the
least, that the substances that were injurious to the land. As
to this, there is no genuine factual dispute.
Mottolo was in the business of cleaning, among other
things, cesspools and grease traps, for approximately two years
prior to his contracting with Quinn. Mottolo disposed of waste
accumulated from those operations -- generally sand, grease, and
9 The hazardous chemicals identified by the EPA at the site included acetone, toluene, trichlorethylene, xylene, butyl acetate, methanol, methylene chloride, methyl methacrylate, methyl ethyl ketone, and methyl isobutyl ketone.
10 Investigators discovered an upswelling of groundwater in several locations between the site and a creek downhill with odor and color consistent with those at the site.
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sewage -- by taking the waste to a contractor, or by discharging
the sewage into the city sewer system through licensed spots.
Prior to his relationships with Quinn and Lewis, then, Mottolo
had at least some rudimentary knowledge of how the official
system for disposing of waste operated.
Mottolo knew Quinn manufactured shoe polish and
polyurethane and that Lewis operated a solvent factory. A Quinn
employee described the polyurethane it needed disposed as "very
thick -- it looks like wax." Mottolo's agreement with Lewis
began when a Lewis employee called him and said that Lewis had "a
lot of solvent and were looking . . . to get rid of it." The
Lewis employee asked Mottolo if he "had a means to get rid of
some solid stuff." Mottolo told him that he had a dump, but that
he did not have a permit. Apparently, this was sufficient for
Lewis. Lewis always paid Mottolo in cash, no invoices were used,
and Lewis never wanted any receipts. Lewis' clandestine behavior
would suggest to a reasonable business person that something was
amiss, but Mottolo made no attempt to ascertain the identity of
the waste he was hauling.
Mottolo knew that the containers were bulldozed at the
site, causing their contents to spill out the soil. He observed
drums leak and burst at the site and he knew that some of the
waste that leaked at the site consisted of a thick "goopy"
substance and a "rancid" "super, super strong" smelling liquid.
Mottolo disposed of approximately 1,650 drums and other small
containers of waste at the site over a three to four year period.
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Based on these facts, we think there can be no genuine
dispute that a reasonable person in Mottolo's shoes, with
Mottolo's experience, would have known that he was dumping
substances that were certain to cause "some degree" of injury to
adjacent property.
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Mottolo makes one last stand, however, arguing that
regardless of what is known today, a reasonable person in the
mid-1970s would not have believed that dumping the waste was
inherently injurious. We agree that the proper test looks to
what a reasonable person, at the time, would have known with
respect to the injurious nature of his acts. The defendant
insurance companies have provided evidence of the actual harmful
effects of the dumping on the site and nearby water supplies.
The defendants have also provided, as noted above, sufficient
evidence to establish that a reasonable person would have known
that he was dumping hazardous materials. This evidence is more
than sufficient to shift the burden to Mottolo to establish the
existence of a genuine issue of material fact concerning the
"state of the art" (or, more precisely, the state of general
knowledge) with respect to hazardous waste in the mid-1970s. See
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986).11
Such evidence might include expert affidavit testimony
that the state of scientific evidence was insufficient during the
relevant time period and that such dumping was not considered
"inherently injurious." Mottolo has presented no such evidence
11 Because the underlying action against Mottolo by the EPA and the State of New Hampshire was initiated in federal court, the burden shifting framework of New Hampshire's declaratory judgment act, N.H. Rev. Stat. Ann. 491.22, does not apply. See Town of
Allenstown, et al. v. National Casualty Company, No. 94-1106,
slip op. at 8-9 (1st Cir. Sept. 30, 1994). The ultimate burden of establishing coverage therefore remains on the plaintiff, Mottolo.
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and has failed to establish a genuine issue of material fact with
respect to the state of the art regarding knowledge of the
dangers of hazardous waste dumping in the 1970s. His statement
that he did not believe the substances were hazardous is
insufficient by itself to defeat the motion. See Fed. R. Civ. P.
56.
IV. IV.
CONCLUSION CONCLUSION
Although we find that the district court applied an
incorrect legal standard, we agree with its conclusion that there
is no genuine issue of material fact that the intentional dumping
of hazardous waste by the plaintiffs-appellants was not an
"occurrence" covered by the pertinent insurance policies. The
decision of the district court granting defendants-appellees'
motion for summary judgment is therefore
Affirmed. Affirmed.
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