Natioanal Union Fire Insurance v. Terra Industries, Inc.

346 F.3d 1160, 2003 WL 22359233
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 17, 2003
Docket02-3280
StatusPublished
Cited by1 cases

This text of 346 F.3d 1160 (Natioanal Union Fire Insurance v. Terra Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Natioanal Union Fire Insurance v. Terra Industries, Inc., 346 F.3d 1160, 2003 WL 22359233 (8th Cir. 2003).

Opinion

RILEY, Circuit Judge.

National Union Fire Insurance Company of Pittsburgh (National Union) brought an action against Terra Industries, Inc. and Terra Nitrogen, (UK) Limited (collectively Terra) in federal district court 2 seeking a declaratory judgment defining National Union’s obligations to defend and indemnify Terra under a commercial umbrella insurance policy (policy). National Union appeals the entry of summary judgment in favor of Terra. We affirm.

I. BACKGROUND

A. Factual Summary

National Union issued Terra a policy for the period July 1, 1997, to July 1, 2000. The policy provided:

We will pay on behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes legally obligated to pay by reason of liability imposed by law or assumed by the Insured under an Insured Contract because of Bodily Injury, Property Damage, Personal Injury or Advertising Injury that takes place during the Policy Period and is caused by an Occurrence happening anywhere in the world.

The policy defined “property damage” as:

1. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
2. Loss of use of tangible property that is not physically injured. All such loss shall be deemed to occur at the time of the Occurrence that caused it.

The policy defined an “occurrence” with respect to property damage 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 policy further provided that National Union has the “right and duty” to provide Terra with a defense against any claim or suit for damages against Terra that is covered by the policy. In consideration for the policy, Terra paid National Union a premium in excess of $3.2 million.

Terra operates a chemical plant in Se-vernside, Bristol, England, and produces fertilizer by reforming natural gas. Carbon dioxide is a byproduct of fertilizer production. Terra sold the carbon dioxide to Messer UK Limited (Messer), Hydro-gas Limited, and BOC (collectively resellers). The resellers sold the carbon dioxide to beverage manufacturers. The beverage manufacturers then incorporated the carbon dioxide into carbonated beverages during their bottling and canning processes. The beverage manufacturers sold their products to wholesale and retail customers.

In May 1998, Terra was notified that benzene was discovered in a test sampling of a carbonated beverage. Terra investigated and discovered a leak in a C-114 Feed Preheater exchanger at the Severn-side plant. The leak allowed natural gas containing benzene, a genotoxic carcinogen, to bypass the reforming process and to permeate the carbon dioxide. Before discovering the benzene leak, Terra had *1163 sold substantial quantities of carbon dioxide containing low levels of benzene to resellers who resold the carbon dioxide containing benzene to beverage manufacturers, who incorporated the carbon dioxide into their carbonated beverages and sold the now contaminated beverages to wholesale and retail customers. Following notification of the benzene leak, scientific testing, and two days of extensive media attention, the beverage manufacturers initiated a trade recall to retrieve product from large wholesalers and large supermarket chains. Because the low benzene levels posed a negligible health risk to consumers, the beverage manufacturers decided against initiating a consumer recall, fearing such a recall would cause widespread panic.

B. Procedural Summary

After the trade recall, several beverage manufacturers sued Messer and Terra in England’s Commercial Court, claiming breach of contract and breach of warranty for supplying carbon dioxide unsuitable for use in consumer beverages. The beverage manufacturers also brought tort claims in the same lawsuits directly against Terra. Messer filed third-party breach of contract and breach of warranty claims against Terra. Terra, in turn, promptly notified National Union: ■

At the time this appeal was filed, the High Court of Justice, Queen’s Bench Division, Commercial Court, in London, England, had entered two judgments 3 against Messer and Terra, obligating Terra to indemnify the resellers for their liability to the beverage manufacturers. National Union, on behalf of Terra, satisfied the first judgment in the Britvic case, but refused to satisfy the second judgment in the Bicardi-Martini case, contending Terra sustained only economic loss, with no corresponding physical injury to property. Terra and Messer appealed the judgments, and the Supreme Court of Judicature Court of Appeal dismissed the appeals.

Thereafter, National Union brought this declaratory judgment action in federal district court. Both National Union and Terra filed motions for summary judgment. The district court concluded the benzene contamination of Terra’s carbon dioxide, which was later sold and incorporated into carbonated consumer beverages, constituted an “occurrence” under the policy. The district court further concluded the occurrence resulted in “property damage” when the integrated products were rendered unsuitable for human consumption, necessitating recall and destruction. The district court denied National Union’s motion for summary judgment and granted Terra’s motion for summary judgment. The district court ordered National Union to indemnify Terra for the judgment in the Bicardi-Martini case, to pay for Terra’s defense • of all benzene contamination claims, and to indemnify Terra against any judgment or settlement resulting from the benzene contamination.

C. Issues on Appeal

On appeal, National Union argues the district court erred in holding National Union’s duty to indemnify Terra was not determined in Bicardi-Martini, which awarded damages only for intangible economic loss. National Union further contends there was no property damage and, alternatively, no property damage was *1164 caused by an occurrence. Conversely, Terra argues its right to coverage under the policy is not controlled by the English Commercial Court’s ruling that no “direct physical damage to property” occurred, because the policy at issue does not require “direct” injury. Terra further claims the English Commercial Court was never presented with the question of whether Terra’s liability to third parties arose from “property damage,” as defined by the policy and construed under American coverage law. Finally, Terra contends the benzene contaminated carbon dioxide altered the carbonated beverages of third parties, contaminating the consumer products and rendering them unsaleable, and thereby triggering an occurrence of property damage under the policy.

II. DISCUSSION

A. Standard of Review

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Bluebook (online)
346 F.3d 1160, 2003 WL 22359233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/natioanal-union-fire-insurance-v-terra-industries-inc-ca8-2003.