Owens-Illinois, Inc. v. Aetna Casualty & Surety Co.

990 F.2d 865, 1993 WL 106895
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 13, 1993
DocketNos. 91-4164, 91-4189
StatusPublished
Cited by4 cases

This text of 990 F.2d 865 (Owens-Illinois, Inc. v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Owens-Illinois, Inc. v. Aetna Casualty & Surety Co., 990 F.2d 865, 1993 WL 106895 (6th Cir. 1993).

Opinion

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant/Cross-Appellee Owens-Illinois, Inc. (“Owens”) appeals and Defendant-Appellee/Cross-Appellant Aet-na Casualty & Surety Co. (“Aetna”) cross-appeals the final judgment in this action for reimbursement of the costs of responding to the presence of toxic materials on real property. We affirm.

I

From the early 1940s to November 20, 1970, the Hilfinger Corp. (“Hilfinger”) operated a manufacturing plant at 1800 West-wood Avenue in Toledo, Ohio. During this time, zinc die casting and plating, including chrome plating, was conducted on the premises. Hilfinger owned the property until the American Smelting and Refinery Co. (“ASARCO”) bought it in 1963. Hil-finger reacquired title in 1971, and transferred ownership to Owens on June 2,1971, pursuant to the terms of a purchase agreement dated December 8, 1970. Owens used the premises solely for warehousing and storage until the buildings on the premises were demolished in 1983.

In December 1983, greenish snow and water were discovered on the property. It was subsequently determined that hexava-lent chromium, a hazardous substance, had been deposited in the soil. After examining several alternatives to dealing with this problem, Owens decided to “cap” the contaminated area with an impermeable surface. The Ohio Environmental Protection Agency approved this method of remedial action in July 1987.

On August 20, 1985, to recover the significant costs of remediation, Owens filed a complaint in the United States District Court for the Northern District of Ohio. The complaint was initially brought against Lehigh Valley Industries, Inc., “the sole shareholder of and successor in interest to Hilfinger.” J.A. at 14 (Complaint at 2). Owens sought a declaratory judgment that Lehigh Valley Industries, Inc. was liable for all costs incurred by Owens relating to the response to the chromium contamination under the Comprehensive Environmen[867]*867tal Response, Compensation and Liability-Act of 1980, 42 U.S.C. §§ 9601-9675 (1988 & Supp. II 1990). Owens also sought, inter alia, $2,000,000 for breach of contract; $2,000,000 for compensatory damages as a result of “fraudulent misrepresentation”; and $5,000,000 in punitive damages. J.A. at 19 (Complaint at 7).

On December 5, 1985, Owens amended its complaint to include Hilfinger and Le-high Castings, Inc. (“the parent company of Hilfinger and a subsidiary of Lehigh Valley [Industries, Inc.],” Owens’ Br. at 1) as Defendants. On August 24, 1987, AS-ARCO was also added as a Defendant. On May 9, 1988, Owens reached a settlement with Lehigh Valley Industries, Inc., Lehigh Castings, Inc., ASARCO, and their insurers.

On April 28, 1988, Aetna was notified of Owens’ action, and was requested to defend and indemnify Hilfinger with respect to Owens’ claims. On October 6, 1988, Aetna responded that it would not defend and would deny coverage.

A trial was held to assess Hilfinger’s liability to Owens. On January 13, 1989, the district court found that the chromium “was introduced into the soil on the Property by a continuous or repeated wetting over a period of several years,” J.A. at 105 (Findings of Fact ¶ 15) (Jan. 1989), “[during the time Hilfinger Corporation was an owner and operator of the Property,” id at 109 (Conclusions of Law ¶ 5) (Jan. 1989), and that this chromium posed a health threat to humans. Finding Owens’ response to be reasonable, necessary and consistent with the National Contingency Plan, the court awarded Owens $1,469,322.20, plus interest and costs.

On July 18, 1989, Owens filed a supplemental petition with the district court, claiming that $769,322.20 of the judgment, plus interest and costs, remained unsatisfied after thirty days from the date of judgment. Proceeding under Section 3929.06 of the Ohio Revised Code Annotated (Baldwin 1989), it sought to recover this amount from Aetna, Hilfinger’s erstwhile insurer.

On November 26, 1990, a trial commenced to determine Aetna’s insurance responsibilities relating to Owens’ response costs. Of chief concern for purposes of this appeal was the evidence (or lack thereof) relating to how and when the chromium got into the soil, and the scope of Aetna’s coverage.

On the issue of how and when the chromium got into the soil, counsel for Owens set the stage, stating:

The testimony in the underlying case was that the chromium was put into the ground over a long period of time. It did not occur as a result of a single instance, but was a continuous progressive wetting. There will be no evidence as to how the chromium got into the ground. We don’t know.

J.A. at 927.

Howard W. Hilfinger III, general manager of Hilfinger for eight to ten years, testified for Owens concerning Hilfinger’s manufacturing operations at the Westwood Avenue premises. He agreed that there was “[n]o question that Hilfinger knew chromium was going into the sewer system, in connection with [its] operation” and that “[tjhat is the way the system was designed in the normal course of its operation....” Id at 961. He testified that spills and leaks of chromium onto the plant floor occurred. When the spills occurred, “[the whole area] was probably diked with four or six inch square wooden members that surrounded the area, and one area at one part of that surrounded area would have been this outlet to the drain.” Id at 959. Mr. Hilfinger maintained, however, that it was never Hilfinger’s intention, nor did the company expect to contaminate its premises with chromium.

Stephen F. Ahern, former counsel for Lehigh Valley Industries, Inc., Lehigh Castings, Inc., and Hilfinger, testified that, at the time Owens purchased the Hilfinger plant, Owens knew of the existence of “cracks in the cement in the area where plating operations were undertaken.” Id at 969.

James Mack, who supervised the investigation of the chromium contamination at [868]*868the Westwood Avenue premises, gave testimony on behalf of Owens. He opined:

... [T]he chromium [on the Hilfinger site] originated due to prolonged period of exposure, probably certain amount of wetting taking place over a period of time, possibly twenty years. This [sic] came to this conclusion because of the depth of penetration in the fairly high concentrations of chromium in the soil. The soil are [sic] decided low permeable soil, and we found chromium in elevated [sic] as deep as 18 feet.
... [0]ne of the actions undertaken at [the Hilfinger manufacturing facility] was plating of parts with chromium. It was my opinion that the plating operations, through some mechanism, are the origins of the chromium in the soil.

Id. at 990-91. When asked to give an opinion as to the time frame of contamination, he responded:

... I believe, again, it took place over a prolonged period of time, its time-frames are difficult to pin down because of the nature of the chromium migration within the soil profile. I believe, possibly, it could have taken place over a twenty year period. As to the exact time period of the specific events, I don’t, really, have an opinion to that effect.

Id. at 991. On direct examination, he concluded that “one single event probably did not provide this level of or degree of contamination within the soil.” Id. at 992.

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990 F.2d 865, 1993 WL 106895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-illinois-inc-v-aetna-casualty-surety-co-ca6-1993.