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First Industrial, L.P. v. General Insurance Co.

Superior Court of New Jersey, Appellate Division

July 30, 2013

FIRST INDUSTRIAL, L.P., (as successor-in-interest to CHERRY HILL INDUSTRIAL SITES, INC.), Plaintiff-Appellant,
v.
GENERAL INSURANCE COMPANY OF AMERICA (a Safeco Company), HARLEYSVILLE INSURANCE COMPANY OF NEW JERSEY, PENNSYLVANIA GENERAL INSURANCE COMPANY (as successor to certain liabilities of American Employers' Insurance Company), Defendants-Respondents

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 4, 2013

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4651-09.

Carl A. Salisbury argued the cause for appellant (Kilpatrick Townsend & Stockton, L.L.P., attorneys; Mr. Salisbury, on the brief).

Frank E. Borowsky, Jr., argued the cause for respondent General Insurance Company of America (Mr. Borowsky, of counsel and on the brief; Michael A. Field, of counsel; Stephanie M. Hehman, on the brief).

Margriet Schaberg argued the cause for respondent Harleysville Insurance Company of New Jersey (Riker Danzig Scherer Hyland & Perretti, L.L.P., attorneys; Lance J. Kalik, of counsel and on the brief; Ms. Schaberg, on the brief).

Elaine Whiteman Klinger argued the cause for respondent Pennsylvania General Insurance Company (Christie, Pabarue, Mortensen and Young, attorneys; Ms. Klinger, on the brief).

Before Judges Graves, Ashrafi and Espinosa.

PER CURIAM

Plaintiff First Industrial, L.P., brought this action against defendant insurance companies to obtain coverage for environmental remediation of its industrial property. It now appeals from orders of the Law Division dated August 22 and October 21, 2011, granting summary judgment to defendants, and also from an earlier order dated October 1, 2010, denying an extension of time for service of plaintiff's expert reports. We affirm.

Viewed most favorably to plaintiff, R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record established the following relevant facts and procedural history.

From 1963 to 1987, plaintiff's predecessor, Cherry Hill Industrial Site, Inc., constructed approximately thirty buildings on a previously vacant tract of farmland in Camden County. The site became known as the Cherry Hill Industrial Center. Over the years, space in the buildings was leased to various tenants.

In 1995, petroleum, metal, and PCB contamination was found at one of the buildings. In 1998, in preparation for a merger of plaintiff First Industrial with Cherry Hill Industrial, plaintiff discovered soil and groundwater contamination at fourteen of the buildings and on undeveloped land at the site. Plaintiff reported its findings to the New Jersey Department of Environmental Protection (NJDEP). After the merger, plaintiff became responsible for clean-up and remediation of the site. From 1998 to 2008, it spent approximately $900, 000 on costs of environmental consultation and remediation.

Plaintiff succeeded to the rights of Cherry Hill Industrial under insurance policies the latter had procured in earlier years. According to plaintiff, defendants General Insurance Company of America (General Insurance), Harleysville Insurance Company of New Jersey (Harleysville), and Pennsylvania General Insurance Company (Penn General), or their predecessors, issued general liability policies to Cherry Hill Industrial from 1966 through 1986. Plaintiff alleged it was entitled to coverage for its clean-up and remediation costs under those policies.

Plaintiff first notified defendants of its claims in October 1999 and January 2000. At that time, defendants declined to provide defense or indemnification coverage. Defendants claimed they engaged in dialogue with plaintiff about its claims but that plaintiff failed to provide "fundamental facts" about the timing and nature of the contamination at the site. Plaintiff disputed that contention, claiming that it provided extensive factual information to defendants regarding the potential sources of the contamination but that defendants did not review plaintiff's claims in good faith and never investigated the site to determine their coverage liability.

Plaintiff first brought suit in Camden County in April 2007 seeking a declaratory judgment that defendants were required to provide insurance coverage. Twenty months later, in December 2008, plaintiff voluntarily dismissed that first action so that the parties could exchange information and investigate the matter further. Plaintiff re-filed its complaint, commencing the present action, in February 2009 in Middlesex County. Defendants filed answers. After a change in the track designation of the case under Rule 4:5A to Track IV, the court set a discovery end date of ...


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