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United States Bronze Powders Inc. v. Commerce and Industry Insurance Co.

Decided: June 12, 1992.

UNITED STATES BRONZE POWDERS, INC., PLAINTIFF,
v.
COMMERCE AND INDUSTRY INSURANCE COMPANY, LUMBERMANS MUTUAL CASUALTY COMPANY, AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY, PROVIDENCE WASHINGTON INSURANCE COMPANY, INTEGRITY INSURANCE COMPANY, FIRST STATE INSURANCE COMPANY, HARTFORD ACCIDENT AND INDEMNITY COMPANY FEDERAL INSURANCE COMPANY, INSURANCE COMPANY OF NORTH AMERICA, PURITAN INSURANCE COMPANY AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, DEFENDANTS



In conjunction with an oral decision of December 20, 1991.

Bernhard, J.s.c.

Bernhard

[259 NJSuper Page 112] This is a pre-trial motion brought by defendant, Commerce and Industry Insurance Company for an order granting partial summary judgment under R. 4:46-1 et seq. in favor of the defendant and against plaintiff, United States Bronze Powders Inc. This court previously granted a similar motion brought by defendant, Providence Washington Insurance Company. For

the purposes of clarifying that decision, both motions will be addressed in this opinion.

On May 29, 1990, plaintiff United States Bronze Powders, Inc. filed this declaratory judgment action seeking insurance coverage from numerous defendants. The complaint specifically alleges that:

In early 1988, U.S. Bronze noticed an unintentional spill or leakage of copper sulphate and other chemicals which were leaking from its building into the soil. The date of the commencement of the spill has not been determined.

The spill or leakage has caused or threatened to cause damage to the adjacent property owners.

U.S. Bronze has incurred and will continue to incur expenses in attempting to contain the spill or leakage to prevent further damage.

Plaintiff thereafter filed an amended complaint in which it was alleged that a neighboring property of U.S. Bronze had experienced elevated levels of copper and other substances in the soil which was caused by airborne contamination from the U.S. Bronze plant. U.S. Bronze seeks a declaratory judgment against various defendant insurance companies for damages incurred in clean up costs and "future remediation, clean up and containment expenses."

The facts show that plaintiff, U.S. Bronze Powders, Inc. is a New Jersey Corporation which manufactures various products in Raritan Township, Hunterdon County, New Jersey. As part of its manufacturing processes in the production of copper powder, U.S. Bronze utilizes materials such as copper, sulfuric acid, and copper sulphate. The amended complaint alleges that contamination of copper sulphate and other chemicals, as well as copper sampling, resulted to neighboring property of U.S. Bronze due to unintentional spilling and/or airborne contamination.

Defendant, Commerce and Industry Insurance Company, issued a total of six general liability policies to U.S. Bronze effective July 1, 1982 to July 1, 1988. Defendant moves for partial summary judgment as it pertains to the last two policies effective July 1, 1986 to July 1, 1987 and July 1, 1987 to July 1,

1988. The July 1, 1986 to July 1, 1987 policy contained the following endorsement:

POLLUTION EXCLUSION

(This insurance does not apply to:)

(F)(1) "Bodily Injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, ...


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