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PROLERIZED SCHIABO NEU CO. v. HARTFORD ACCIDENT &

December 31, 1997

PROLERIZED SCHIABO NEU COMPANY, Plaintiff,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY and CERTAIN UNDERWRITERS AT LLOYD'S LONDON MARKET AND LONDON INSURANCE COMPANIES, Defendants.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 In this insurance coverage dispute involving two adjoining pieces of land, Plaintiff, Prolerized Schiabo Neu Company, claims that it should be indemnified under insurance contracts with its primary insurance carrier, Defendant, Hartford Accident & Indemnity Company, for, among other things, money that Plaintiff spent to purchase a piece of property. Such a demand is not, on its face, presumptuous. However, Plaintiff has not disputed that this piece of property was worth what it paid, has appreciated in value, and, contemporaneously with the purchase, resulted in the receipt of additional revenue by Plaintiff of approximately $ 500,000. Given the undisputed facts of this case, as contained in the summary judgment record, considered in the light most favorable to the Plaintiff, I cannot see how Plaintiff has sustained any damages compensable under the relevant insurance policies of both its primary and excess insurance carriers in connection with its purchase of the property. Based upon the undisputed facts in the record, I conclude that the money spent by PSN was not damages within the meaning of the policies. Accordingly, I will grant Defendants' motions for summary judgment as to the claim for damages arising out of Plaintiff's purchase of Lot 18.

 PSN also claims that it should be indemnified for damages which it cannot connect to events, either as an "occurrence" or a "wrongful entry or eviction" which took place during the term of the insurance policies in question. Because PSN has not established any connection between the damages for which it demands coverage and events which occurred during the relevant policy periods, it is not entitled to coverage of those damages.

 For the reasons set forth below, the Defendants' motions for summary judgment will be granted.

 I. Facts and Procedural Background

 Plaintiff, Prolerized Schiabo Neu Company ("PSN"), is a joint venture with its principal place of business located in Jersey City, New Jersey. First Amended Complaint P 3 (dated Sept. 12, 1997) (hereinafter Amended Compl.). *fn1" Beginning in approximately 1967, PSN has operated a metal recycling business in Jersey City, New Jersey. Id. at P 25. The most significant aspect of PSN's metal recycling business involves the shredding of automobiles. Id. After the removal of the metallic portions of the shredded automobile, the material remaining, the automobile shredder residue ("ASR"), is essentially waste. Id.; see also Certification of Andrea L. Wolff (dated Sept. 25, 1997) (hereinafter Wolff Certif.), Exh. D at 2 (noting that for some period only ferrous metals were removed for recycling). ASR is a sponge-like material which absorbs water. See Wolff Certif., Exh. A at 6 (as modified by Letter from Barbara C. Zimmerman (dated Aug. 15, 1997)), Exh. D at 5. The effect of the deposit of ASR on realty is disputed by the parties. Compare Wolff Certif., Exh. A at 7-10 (concluding that the placement of ASR does not impair the ability to develop land and that removal of ASR returns land to pre-deposit condition) with Wolff Certif., Exh. D at 5-10 (concluding, inter alia, that "ASR is not suitable as a load-bearing subsurface base" upon which permanent structures may be constructed and that the "presence of the ASR affects many important properties of that land area").

 Coinciding with the beginning of its metal recycling business, PSN began to deposit ASR on property known as Block 1507, Lot 7 ("Lot 7") which was then owned by one of the partners in the PSN joint venture, and eventually owned by PSN itself. Joint Final Pre-Trial Order at 4 (dated Dec. 5, 1997); Certification of Barbara C. Zimmerman (dated Sept. 15, 1997) (hereinafter Zimmerman Certif.), Exh. E.

 Apparently all was well until April 14, 1987. On that date, Conrail sent Jay A. Zimmern ("Zimmern"), then General Manager of PSN, a letter claiming that "pulverized rubber products and metal have been spread over a portion of [Conrail's] property." Zimmerman Certif., Exh. H. The letter indicated that "unless [PSN] arrange[s] to have these materials removed from our property within twenty (20) days of the date of this letter, we will have no alternative but to take the legal actions necessary to have [PSN] accomplish this." Id.

 Soon after receiving the Conrail letter and without first consulting its insurance broker or insurance carrier, see Joint Final Pretrial Order at 5, PSN responded that it would immediately begin to remove the ASR, but that the removal process would take longer than the twenty days allotted by Conrail. Also, PSN indicated its interest in purchasing Lot 18 from Conrail. See Zimmerman Certif., Exh. I.

 Between May and November 1987, PSN removed approximately 57,000 tons of ASR from Conrail's property, expending approximately $ 1.9 million to do so. Amended Compl. at P 28; Joint Final Pre-Trial Order at 5; Zimmerman Certif., Exh. Y (noting removal of approximately 51,000 gross tons at total cost of $ 1,881,025.80). *fn2" Eventually on May 1, 1991, in lieu of removing the remaining ASR from Lot 18, PSN purchased Lot 18 from Conrail at a cost of approximately $ 1.6 million. Amended Compl. at P 29; Zimmerman Certif., Exh. C at 246; but see Zimmerman Certif., Exh. V at 1, 6, 8 (indicating price of $ 1.5 million).

 Contemporaneous with the sale of Lot 18, PSN sold an easement across Lots 7 and 18 to Tropicana or TPI Urban Renewal Corporation for $ 503,615.70. See Zimmerman Certif., Exh. C at 256-59, Exh. U. Tropicana had been negotiating with Conrail to develop property further to the south and west of Lot 18. See Zimmerman Certif., Exh. T at 170-72, Exh. U. The easement was necessary in order for Tropicana to have access to Linden Avenue, the main road into the area. Id.

 Under various consecutive policies (the "Hartford policies"), Defendant, Hartford Accident & Indemnity Company ("Hartford"), a Connecticut corporation, provided, inter alia, comprehensive general liability insurance and personal injury liability insurance to PSN, or its predecessor, from July 1, 1970 until October 1, 1975. See Zimmerman Certif., Exh Z1-Z6. Under various policies (the "Lloyd's Policies"), Defendants, Certain Underwriters at Lloyd's London Market and London Insurance Companies (the "London Insurers"), *fn3" provided excess liability coverage to PSN from July 15, 1970 until July 29, 1976, with a short intervening period during which no policy was in force. See Certification of Glenn M. Fjermedal (dated Sept. 15, 1997) (hereinafter Fjermedal Certif.), Exh. A-E; but see Fjermedal Certif. at P 2; Joint Final Pretrial Order at 10.

 On that date, PSN filed a Complaint in this Court against Hartford and the London Insurers seeking, inter alia, a declaration that "all sums expended by PSN to remove ASR from Conrail's property and to purchase the Conrail property are covered under the property damage provisions" of the Hartford and Lloyd's policies or, alternatively, the personal injury provisions of the policies. Complaint at PP 33(a), 39(a) (dated Oct. 12, 1994).

 On May 22, 1996, PSN moved for partial summary judgment on a single issue: whether the Personal Injury Liability ("PIL") endorsement of the policy provided coverage to PSN for "wrongful entry" for its inadvertent deposit of ASR on an adjoining landowner's property. Hartford cross-moved for partial summary judgment on the grounds that the PIL endorsement did not provide coverage for "wrongful entry" for PSN's unauthorized deposit of ASR on Conrail's property, and that PSN's suit was barred by New Jersey's six-year statute of limitations on contract actions. The Court denied PSN's motion and Hartford's cross-motion for partial summary judgment on the PIL "wrongful entry" coverage issue without prejudice, pending the completion of discovery. The Court also denied Hartford's cross-motion for partial summary judgment on statute of limitations grounds, finding that PSN's cause of action accrued less than six years prior to commencement of the action. See Polerized Schiabo Neu Co. v. Hartford Accident & Indem. Co., et al., 1996 U.S. Dist. LEXIS 21485, Civil Action No. 94-4857, Opinion at passim (dated May 22, 1996).

 Several months later, on August 14, 1996, PSN again moved and Hartford again cross-moved for partial summary judgment on the PIL "wrongful entry" coverage issue. I denied the cross-motions, finding that a decision on the PIL "wrongful entry" coverage issue at that time would amount to an improper "advisory opinion." See Polerized Schiabo Neu Co. v. Hartford Accident & Indem. Co., et al., 1996 U.S. Dist. LEXIS 21486, *7-*8, Civil Action No. 94-4857, (dated Aug. 14, 1996) (noting that Court could not base summary judgment motion on existence of hypothesized, unproven facts). *fn4"

 During the course of discovery in this action, PSN filed an Amended Complaint which refocussed the litigation on different time periods. Instead of the policies issued for the 1966 through 1972 period, PSN's allegations now address the period from 1970 though 1975. Compare Complaint at PP 7-12 with Amended Compl. at PP 7-12; see generally Memorandum in Support of PSN's Motion to Amend the Complaint 4 (dated Aug. 28, 1997).

 Hartford and the London Insurers have now moved for summary judgment on all of PSN's claims for damages. The Court may exercise jurisdiction over this action pursuant to 28 U.S.C. § 1332(a).

 II. Standard on Motion for Summary Judgment

 A party seeking summary judgment must "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." Fed. R. Civ. P. 56(c); see, e.g., Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098, 104 L. Ed. 2d 1004, 109 S. Ct. 2449 (1989); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983).

 In deciding whether triable issues of fact exist, Rule 56(e) of the Federal Rules of Civil Procedure ...


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