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TOWNSHIP OF GLOUCESTER v. MARYLAND CAS. CO.

August 19, 1987

Township Of Gloucester, A Municipal Corporation of the State of New Jersey, Plaintiff,
v.
Maryland Casualty Company; Farmer's Reliance Insurance Company of New Jersey; National Union Fire Insurance Company of Pittsburgh, PA.; Insurance Company of North America; Nationwide Mutual Insurance Company; International Fidelity Insurance Company; United Bonding Insurance Company; Summit Insurance Company of New York; Anthony Amadei Sand & Gravel, Inc., a New Jersey Corporation; Anthony Amadei and Sidney Liss, individuals; Gloucester Environmental Management Services, Inc., a New Jersey Corporation; David Ehrlich, individual; City and County of Philadelphia; Geppert Brothers, Inc.; Curtis T. Bedwell & Sons, Inc., and New Jersey Department of Environmental Protection; Chicago Insurance Company; The Home Insurance Company and The Mutual Fire, Marine & Inland Insurance Company, Defendants



The opinion of the court was delivered by: BROTMAN

 I. INTRODUCTION

 This matter comes before the court on the motions of defendant insurance companies for partial summary judgment. For the reasons stated below, defendants' motions are granted in part and denied in part.

 II. FACTS AND PROCEDURE

 This action commenced as a declaratory judgment action filed by plaintiff, Township of Gloucester, ("Township"), to determine the existence and extent of defendant insurance companies' obligations to defend and indemnify plaintiff for expenses related to the closure and clean-up of the Gloucester landfill. The action was filed in state court and later removed to federal court, December 6, 1983. Four defendants, (Maryland Casualty Company, ("Maryland"), Farmer's Reliance Insurance Company, ("Farmer's"), Insurance Company of North America, ("INA") and Home Insurance Company, ("Home")), have filed partial summary judgment motions pursuant to Fed. R. Civ. P. 56(b). Plaintiff's complaint, dated April 21, 1982, and amended complaints, October 8, 1983, and December 2, 1983, ("Complaint"), allege the following periods of policy coverage under general liability policies by the defendants: Maryland, July 2, 1964-July 1, 1979, Count I; Farmer's, July 2, 1979-July 1982, Count II; INA, April 10, 1974-November 30, 1975, Count IV; INA, October 18, 1969-October 18, 1976, Count VI (plaintiff named as additional insured); INA, September 1, 1975 - (no closing dated provided), Count VII (Gloucester Environmental Management Services ("GEMS") had a duty to name plaintiff as additional insured); Home, July 2, 1982-July 2, 1985, Count XVIII (Amended Complaint). Plaintiff's Complaint incorporates by reference the complaint of the New Jersey Department of Environmental Protection ("DEP") against the Township. NJDEP v. Gloucester Environmental Management Services, No. 84-152 (D.N.J. removal January 16, 1984) ("DEP Complaint"). DEP named the Township as a direct defendant in its third amended complaint, November, 1982. See Counts XI and XII (failure to properly close landfill, N.J. Stat. Ann. 13:1E-100 et seq.); Count XIII (N.J. Stat. Ann. 58:10A-1 et seq.); Count XIV (public and private nuisance); Count XVI (negligence); Count XVII (strict liability). The DEP seeks injunctive relief, penalties, and damages. See DEP Complaint para. 1.

 The design, clean-up, and closure of all New Jersey sanitary landfills is mandated by the Sanitary Landfill Facility Closure and Contingency Act, N.J. Stat. An. 13:1E-100 et seq. The Township owns the land upon which the landfill in question rests. From 1969 to 1975 the Township leased the landfill to Amadei Sand and Gravel, Inc. ("Amadei"), which operated the landfill. In 1975 GEMS assumed control of the landfill and operated it until November, 1980. In November of 1980, The Superior Court of New Jersey, Appellate Division, ordered the closing of the facility.

 The defendants filed summary judgment motions in the case at bar seeking an order declaring as a matter of law that defendants owe "no obligation to indemnify the Township for costs, fines or penalties relating to the closure and clean-up of the Gloucester Township landfill ('landfill') and other equitable relief" sought by DEP. All defendants support the motion with a legal argument that assumes arguendo that said policies were in effect as plaintiff so represents. Home makes an additional argument that it is not liable for indemnification because the "occurrence" in question took place prior to the term of its policy.

 III. DISCUSSION

 A. Standard of Review for Summary Judgment

 The standard for granting summary judgment is a stringent one. Fed. R. Civ. P. 56(c) provides that summary judgment may be granted only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hersh v. Allen Prods. Co., Inc., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Insurance Co., 721 F.2d 118 (3d Cir. 1983). In deciding whether an issue of material fact does exist, the court is required to view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 (3d Cir. 1983); Knoll v. Springfield Township School District, 699 F.2d 137, 145 (3d Cir. 1983); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3d Cir. 1972).

 B. Coverage under the Policies

 Defendants' motions pertain to a duty to indemnify costs related to clean-up of the landfill. The court notes that the claim of DEP for damages under a parens patriae cause of action is not a subject of defendants' motions according to the defendants. See, e.g., Motion of INA para. 4; see also Memorandum of Law of INA at 25 n.12. The state may seek damages from the Township for damage caused to the state's natural resources (i.e. groundwater). INA's Memorandum of Law Exhibit O, Jackson v. American Home Assurance Co., Nos. A-170-81T3, -502-81T3, -503-81T3, -504-81T3, -1274-81T3, slip op. at 188.5a (Super. Ct. N.J. App. Div. March 24, 1986) (" Jackson, Exhibit O") (citing Lansco Inc. v. DEP, 138 N.J. Super. 275, 283, 350 A.2d 520 (Ch. Div. 1975), aff'd 145 N.J. Super. 433, 368 A.2d 363 (App. Div. 1976), cert. denied, 73 N.J. 57, 372 A.2d 322 (1977)).

 The relevant language from the various insurance contracts is the standard general liability clauses. The key definitions are as follows:

 
"damages" includes damages for death and for care and loss of services resulting from bodily injury and damages for loss of use of property resulting from property damage
 
"occurrence" means an accident including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured
 
"property damage" means injury to or destruction of tangible property

 The key coverage language is as follows:

 
The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
 
A. bodily injury or
 
B. property ...

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