Travelers Indemnity Co. v. Northrop Grumman Corp.

4 F. Supp. 3d 599, 2014 U.S. Dist. LEXIS 33058, 2014 WL 988604
District Court, S.D. New York·Decided March 13, 2014·No. No. 12 Civ. 3040(KBF)·Published·Cited by 2 cases

Opinion

OPINION & ORDER

KATHERINE B. FORREST, District Judge:

This is the Court’s final summary judgment opinion in the first phase of this environmental insurance coverage action.

In April 2012, Travelers Indemnity Co. and various affiliated companies (together, “Travelers”) commenced the underlying declaratory judgment action as to liability for environmental pollution against Northrop Grumman Corp. and Northrop Grumman Systems Corp. (together, “Northrop” or “Grumman”) and Century Indemnity Co. (“Century”), eventual successor in interest to Insurance Company of North America (“INA”), as nominal defendant. Together, the Court refers to Travelers and Century as “the Insurers.”

This opinion relates to the Insurers’ motion for summary judgment with respect to claims arising from four areas: the Beth-page (“BWD”), Aqua New York (“AWD”), South Farmingdale (“SFWD”), and Massa-pequa (“MWD”) Water Districts, (ECF No. 355.) The Court will not repeat the facts or the law set forth in detail in its prior opinions granting summary judgment to Travelers and Century with regard to the Bethpage Facility and Community Park. (ECF Nos. 552, 553, and 554.)

The Insurers argue that they owe no coverage for any claims arising from contamination to the BWD, AWD, SFWD, and MWD, because, inter alia, Grumman failed to provide notice timely notice of the Water Districts’ claims, the pollution exclusions in the Travelers policies preclude coverage, and Grumman breached its obligations under the policies by agreeing to pay for remediation. The Court agrees. For the reasons set forth below, the Insurers’ motion is GRANTED with respect to the AWD, SFWD, and MWD; it is DENIED with respect to remaining BWD claims.1

I. FACTS

The Court incorporates the “Facts” sections of its March 7, 2014 opinions regarding the environmental contamination at the Bethpage Facility and the Bethpage Community Park. (See ECF No. 552 at 2-28; ECF No. 553 at 2-10.)

The Water Districts are responsible for providing drinking water for residents who live near the Bethpage Facility in Nassau County, Long Island. (Northrop Grumman’s Resp. to the Insurers’ “Statement of Undisputed Material Facts Pursuant to [602]*602Local Rule 56.1” (NGC 56.1) ¶ 1.) The Water Districts draw water exclusively from the sole source aquifer below Long Island. (Id. ¶2.) Portions of the service areas and certain supply wells of the SFWD, the former AWD,2 and the MWD are generally downgradient from the Beth-page Facility and Community Park. (Id. ¶ 4.)

On November 22, 1977, the BWD wrote a letter to Grumman that stated, “Currently available evidence indicates that ... contamination has arisen by virtue of discharge of waste products from your company into the ground water supply.” (Id. ¶¶ 6. 7.) Grumman responded that it was not responsible for the contamination and requested anything suggesting otherwise, and counsel for the BWD later stated that they “did not have sufficient material to frame any pleadings.” (Id. ¶¶242, 243.)

A 1986 study by the Nassau County Department of Health (“NCDOH”) and the United States Geological Survey found that “[g]round water in some areas” of east-central Nassau County had “already been contaminated,” and that a “groundwater plume was found to be sinking and moving south southeast.” (Id. ¶ 12; Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Insurers 56.1”) ¶ 12.) In 1987, the BWD notified Grumman that the levels of trichloroethy-lene (“TCE”) contamination in its water supply exceeded drinking water standards. (NGC 56.1 ¶ 13.)

On June 14, 1989, Grumman advised Travelers, but not Century, of a claim by the BWD. (Id. K15.)3 On August 16, 1989, Grumman and Travelers met to discuss the BWD’s claim. (Id. ¶ 16.) On October 24, 1989, Travelers wrote to Grumman, “Travelers will investigate the facts and circumstances of the [BWD] matter in order to determine the extent of its indemnity obligations, if any.” (Id. ¶ 19.) Travelers also stated that it had “no obligation to reimburse or pay for any legal fees incurred or to be incurred by Grumman in these matters unless and until such a suit is initiated.” (Id. ¶ 186; St. John Decl. Ex. 55, at NGINS000403699.)

On May 22,1990, Grumman entered into a settlement with the BWD that obligated Grumman to contribute approximately $1.7 million for remedial measures at BWD well # 6. (NGC 56.1 ¶ 21.) Travelers made numerous requests for information to Grumman regarding the BWD and stated that it had not received responses from Grumman on several occasions. (Id. ¶ 28-61.)

On October 30, 2000, Larry Leskovjan, an Environmental Manager at Grumman, wrote to other Grumman employees about a “recent discovery that the contaminant plume has progressed much more closely to the South Farmingdale Water District supply wells than expected.” (Id. ¶ 74.) Leskovjan wrote that the data “strongly suggest that this plume originated from Northrop Grumman property,” and that the worst-case cost would be $26 to $28 million. (Id.)

In late 2000, NYSDEC issued a Proposed Remedial x4ction Plan (“PRAP”) with respect to the contaminated groundwater plume originating at the Bethpage Facility. (Id. ¶ 75.) The Water Districts told NYSDEC that they supported the agency’s position that the costs of a groundwater containment remedy should [603]*603be imposed jointly on Grumman and the Navy. (Id. ¶ 199.)

In November 2000, Grumman met with the SFWD to discuss the upcoming Record of Decision (“ROD”) and the potential contamination of SFWD wells. (Id. ¶ 85.) According to Gary Loesch, an environmental consultant for the SFWD and the AWD, the SFWD expressed a belief that Grumman and the Navy should be required to pay for wellhead treatment, and that, if the ROD was finalized, Grumman and the Navy would pay the cost of treatment and subsequent operating and maintenance cost.(Id. ¶ 86; Insurers ¶ 86; Hultman Decl. Ex. 79, at 39:05-21.)

In November 2000, Grumman also met with the AWD. (NGC 56.1 ¶ 91.) At that meeting, Grumman “knew that contamination emanating from its Bethpage facility ... was expected to eventually contaminate the drinking water supplies of both” the AWD and the SFWD. (Id.; Hultman DecL Ex. 80, at 31:08-20.)

On December 4, 2000, Grumman’s consultants Carlo San Giovanni and Michael F. Wolfert of ARCADIS Geraghty & Miller, Inc. wrote to Leskovjan to summarize the results of meetings with the Water Districts. (Insurers’ Reply to Grumman’s Response to the Insurers’ “Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1” (“Insurers Reply 56.1”) ¶ 2.) They wrote, “Funding for well head or other treatment for a public supply well(s) will be provided if ... it appears reasonably certain that one or more public supply wells will be impacted by TVOCs attributable to the Northrop Grumman and NWTRP sites.” (Hultman Reply Decl. Ex. 3, at NGINS001726946.)

At a December 13, 2000 NYSDEC meeting that Grumman attended, NYS-DEC advised that, “[i]f it’s determined ... that treatment must be implemented at other supply wells to ensure that no groundwater contamination ever enters a water supply, then the department ... will ...

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Travelers Indemnity Co. v. Northrop Grumman Corp., 4 F. Supp. 3d 599, 2014 U.S. Dist. LEXIS 33058, 2014 WL 988604 (S.D.N.Y. 2014).

4 F. Supp. 3d 599 (Travelers Indemnity Co. v. Northrop Grumman Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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