The court finds Home's argument persuasive. Indeed, the complaint in this action, as it relates to Home, specifically refers only to the CGL policy. Had the Township chosen to assert a claim against Home based on the City policies, we would have a different case, in which disputed issues of material fact would no doubt remain. In the absence of such an allegation, however, there is no ground for keeping Home in this lawsuit.
The court notes, parenthetically, that, in asserting the private party actions and the City policies as bases for denying Home's summary judgment motion, Maryland, American and the Township have expressed the concern that, under New Jersey's entire controversy doctrine, failure to raise these potential sources of liability now will preclude them from doing so at a later date. New Jersey's entire controversy policy, as embodied in R.4:27-1(b), "requires that a party include in the action all related claims against an adversary and its failure to do so precludes the maintenance of a second action." Aetna Ins. Co. v. Gilchrist Brothers, Inc., 85 N.J. 550, 556-57, 428 A.2d 1254 (1981).
This concern is unfounded. The present claims against Home seek a declaration of that defendant's duty to defend and indemnify plaintiff, under the terms of the CGL policy no. 8-772373, against the allegations made in the Enforcement Action. The question of Home's liability, if any, relative to the private party actions and the City policies, while possibly involving issues which are present in this litigation, constitute, in this court's judgment, separate controversies. In fact, counsel for Home conceded as much at oral argument, stating that the entry of summary judgment for Home in this action would not give rise to a defense based on the entire controversy doctrine to later claims emanating from the private party actions and City policies.
In light of the foregoing, Home's motion for complete summary judgment is granted.
In their papers, Maryland and American state that they do not oppose Mutual's argument for summary judgment on the basis that the "occurrence" alleged in the Enforcement Action did not take place within the term of the Mutual policy. Maryland and American do argue, however, that genuine issues of material fact exist as to whether Mutual has a duty to defend and indemnify the Township with respect to the private party actions. This argument has already been rejected in the context of Home's motion. Accordingly, Mutual's motion for summary judgment is granted.
Chicago's motion is opposed on two grounds: (1) that genuine issues of material fact exist as to whether the Township had actual knowledge of the damage alleged in the Enforcement Action prior to May 2, 1982, the beginning of the term of coverage of the Chicago excess policy; and (2) that genuine issues of material fact exist as to whether Chicago has a duty to defend and indemnify the Township with respect to the private party actions. The latter of these two arguments was explicitly rejected in the context of the Home and Mutual motions for summary judgment, and need not be addressed further here.
As for the issue of the Township's knowledge prior to May 2, 1982, the August 19 opinion held that the Township had actual knowledge of the "occurrence" alleged in the Enforcement Action by July 2, 1982. In so holding, the court relied on, inter alia, the date of closure of the Gloucester Landfill, the dates of filing of the original and amended complaints in the Enforcement Action, and the date of filing of the complaint in the present action. All of these dates, which gave rise to the inference of actual knowledge on the part of the Township, precede May 2, 1982. Therefore, Chicago is entitled to summary judgment pursuant to the same reasoning under which the court granted Home summary judgment in the August 19 opinion.
(D) Motions by Maryland and American to Cross-Claim Against Home and Mutual, And To Implead City
As stated earlier, these applications were withdrawn by Maryland and American at oral argument. This withdrawal was done on the basis of the court's indicating that it did not believe that granting Home's motion for summary judgment would work a future bar to claims against Home arising from the private party actions and City policies, and on Home's concurrence with that determination.
An appropriate order will be entered.
DATED: July 6, 1988
ORDER - July 6, 1988, Filed; July 7, 1988, Entered
This matter having been brought before the court on motions of Home Insurance Company, Mutual Fire, Marine and Inland Insurance Company and Chicago Insurance Company for summary judgment; and
The court having reviewed the oral argument and the submissions of the parties; and
For the reasons stated in the court's opinion filed this date;
IT IS on this 6th day of July, 1988 hereby
ORDERED that the motions of Home Insurance Company, Mutual Fire, Marine and Inland Insurance Company and Chicago Insurance Company for summary judgment are GRANTED.
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