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CHEMICAL LEAMAN TANK LINES, INC. v. AETNA CAS. & S

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 10, 1993

CHEMICAL LEAMAN TANK LINES, INC., Plaintiff,
v.
AETNA CASUALTY AND SURETY CO., ROBIN ANTHONY GILDART JACKSON, an Underwriter at Lloyds, London, et al., Defendants.

Brotman

The opinion of the court was delivered by: STANLEY S. BROTMAN

ORDER

This matter having come before the court on the cross-motions of the parties for summary judgment, as well on the various motions of the parties for leave to file briefs in excess of the established page limits;

 The court having heard oral argument on the parties' cross-motions for summary judgment on November 23, 1992 and having carefully considered the submissions of the parties; and

 For the reasons stated in the court's opinion of this date;

 IT IS on this 10th day of March 1993 hereby

 ORDERED that the motion of plaintiff Chemical Leaman Tank Lines, Inc. ("Chemical Leaman"), for summary judgment is GRANTED in part and DENIED in part, in that:

 (a) There remain genuine issues of material fact on whether Chemical Leaman expected or intended to cause soil and ground water damage; and

 (b) There remain genuine issues of material fact on whether the continuous trigger theory is applicable to the present case; and

 (c) Chemical Leaman may not recover for soil contamination on any of defendants' policies that contain a pollution exclusion; and

 (d) There remain genuine issues of material fact on whether Chemical Leaman may recover for groundwater contamination on any of defendants' policies that contain a pollution exclusion; and

 (e) Chemical Leaman is not barred from coverage under defendants' policies by the policies' notice clauses; and

 (f) Chemical Leaman is not barred from coverage under defendants' policies by the defense of laches; and

 (g) Chemical Leaman is not barred from coverage under defendants' policies by the policies' cooperation clauses; and

 (h) Chemical Leaman is not barred from coverage under defendants' policies by the defense of estoppel; and

 (i) Chemical Leaman may not recover from Aetna Casualty and Surety Co. ("Aetna") reimbursements for defense costs incurred by Chemical Leaman prior to April 18, 1988; and

 (j) Aetna' duty to defend Chemical Leaman is not presently triggered, but rather must await the outcome of the present trial of Aetna's duty to indemnify; and

 IT IS FURTHER ORDERED that the cross-motion of defendant Aetna is GRANTED in part, and DENIED in part, in that:

 (a) There has occurred property damage to trigger Aetna's policy in effect from April 1, 1960 to April 1, 1961; and

 (b) Chemical Leaman may not recover under Aetna's policies in effect prior to April 1, 1960; and

 (c) There remain genuine issues of material fact on whether Chemical Leaman expected or intended to cause soil and groundwater damage; and

 (d) There remain genuine issues of material fact on whether the continuous trigger theory is applicable to the present case; and

 (e) Chemical Leaman may not recover for soil contamination on any of Aetna's policies that contain a pollution exclusion; and

 (f) There remain genuine issues of material fact of whether Chemical Leaman may recover for groundwater contamination on any of Aetna's policies that contain a pollution exclusion; and

 (g) Chemical Leaman is not barred from coverage under Aetna's policies by the policies' notice clauses; and

 (h) Chemical Leaman is not barred from coverage under Aetna's policies by the policies' cooperation clauses; and

 IT IS FURTHER ORDERED that the cross-motion of defendants Robin Anthony Gildart Jackson, an Underwriter at Lloyds, London, et al. ("LMI"), is GRANTED in part and DENIED in part, in that:

 (a) Chemical Leaman's l2G Statement of Material Facts Not In Dispute will not be stricken; and

 (b) Chemical Leaman bears the burden of proof for establishing that it neither expected nor intended to cause soil and groundwater damage; and

 (c) There remain genuine issues of material fact on whether Chemical Leaman expected or intended to cause soil and groundwater damage; and

 (d) Chemical Leaman may not recover for soil contamination on any of LMI's policies that contain a pollution exclusion; and

 (e) There remain genuine issues of material fact on whether Chemical Leaman may recover for groundwater contamination on any of LMI's policies that contain a pollution exclusion; and

 (f) Reconsideration of this court's previous ruling on the owned-property exclusion is not warranted; and

 (g) Chemical Leaman is not barred from coverage under LMI's policies by the policies' notice clauses, and

 (h) Chemical Leaman is not barred from coverage under LMI's policies by the defense of laches; and

 (i) Chemical Leaman is not barred from coverage under LMI's policies for pre-notice costs; and

 IT IS FURTHER ORDERED that the parties shall submit to the court on March 15, 1993, a statement of material facts deemed established pursuant to Federal Rule of Civil Procedure 56(d) by the court's opinion of this date; and

 IT IS FURTHER ORDERED that LMI's cross-motion for summary judgment that the absolute pollution exclusion in all the post-April 1, 1985 policies is DENIED as moot, in that Chemical Leaman has withdrawn all claims as against LMI under these policies; and

 IT IS FURTHER ORDERED that Aetna's motion for leave to file a summary judgment brief exceeding 40 pages in GRANTED; and

 IT IS FURTHER ORDERED that LMI's motion for leave to file a summary judgment brief exceeding 40 pages in GRANTED; and

 IT IS FURTHER ORDERED that plaintiff's motion for leave to file a reply and opposition brief exceeding forty pages is GRANTED; and

 IT IS FURTHER ORDERED that Aetna's motion for leave to file a reply and opposition brief in excess of 40 pages is GRANTED; and

 IT IS FURTHER ORDERED that LMI's motion for leave to file a reply and opposition brief in excess of 15 pages is GRANTED.

 No costs.

 Stanley S. Brotman, United States District Judge

19930310

© 1992-2004 VersusLaw Inc.



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