Dec 16 2014, 9:29 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GEORGE M. PLEWS STEPHEN J. PETERS
SEAN M. HIRSCHTEN DAVID I. RUBIN
Plews Shadley Racher & Braun LLP Plunkett Cooney, P.C.
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMSON, INC. n/k/a )
TECHNICOLOR USA, INC., et al., )
)
Appellants-Plaintiffs, )
)
vs. ) No. 49A02-1401-PL-9
)
XL INSURANCE AMERICA, INC. f/k/a )
WINTERTHUR INTERNATIONAL )
AMERICA INSURANCE COMPANY, et al., )
)
Appellees-Defendants. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
Cause No. 49D07-0807-PL-30746
December 16, 2014
OPINION – FOR PUBLICATION
KIRSCH, Judge
Thomson, Inc. n/k/a Technicolor USA, Inc. (“Thomson”) appeals the trial court’s
order granting summary judgment in favor of XL Insurance America, Inc. f/k/a Winterthur
International America Insurance Company (“XL”) on Thomson’s claim for insurance
coverage. Thomson raises several issues on appeal, of which we find the following
dispositive:
I. Whether the trial court erred in granting summary judgment to XL
because the trial court incorrectly concluded that the known loss
doctrine prohibited Thomson from recovering under its primary or
umbrella policies issued by XL as to the Taiwan site.
II. Whether the trial court erred in granting summary judgment to XL
because a material issue of fact exists as to whether Thomson knew
about contamination at the particular area of the Circleville, Ohio site
at issue.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY1
This appeal is part of an insurance coverage dispute between Thomson and many of
its insurers. XL, one of the insurers, sold both primary and umbrella policies to Thomson
covering 2000 through 2006. This particular case arises out of a dispute concerning
insurance coverage between Thomson and XL for costs incurred by Thomson related to
the investigation and cleanup of two environmentally contaminated sites, one in Taiwan
and the other in Circleville, Ohio.
1
On October 21, 2014, we held oral argument in this matter at Purdue University’s Krannert
Graduate School of Management. We extend many thanks. First, we thank counsel for the quality of the
oral and written arguments, for participating in post-argument discussions with the audience, and for
commuting from Indianapolis. We especially thank the Krannert Executive MBA Program for their
accommodations and the students in the audience for their thoughtful post-argument questions.
2
The Taiwan Plant
In 1987, Thomson SA, a French company, acquired General Electric’s (“GE”)
consumer electronics business, including a subsidiary called RCA Taiwan, Ltd. (“RCAT”).
Among other things, RCAT operated a manufacturing plant (“the Taiwan Plant”) in
Taiwan. In 1989, RCAT changed its American name to Thomson Consumer Electronics
Television Taiwan, Ltd. (“TCETV”).
Throughout its history, the operations at the Taiwan Plant used a variety of solvents.
Over the course of the years, chlorinated solvents—which are known human carcinogens—
made their way into the soil and groundwater on site, and eventually began migrating into
the groundwater flow beyond the site.
When Thomson SA acquired RCAT from GE in 1987, a baseline assessment was
prepared to establish the extent of GE’s liability for environmental contamination. 2 And
indeed, the assessment established that chlorinated solvents had contaminated both the soil
and groundwater as of February 1989. In 1992, TCETV reached out to local Taiwanese
government officials and proposed connecting neighboring properties to the municipal
water supply. Evidently, the government declined the offer, and the public was not notified
of the contamination. Also in 1992, TCETV sold the Taiwan Plant to another corporation.3
2
The parties had agreed that GE would assume all liability for contamination at the site as of the
date of the sale.
3
Litigation in France ensued when the entity that purchased the Taiwan Plant from TCETV alleged
that Thomson failed to disclose the contamination as part of the sale.
3
On June 2, 1994, a Taiwanese legislator held a press conference to publicly accuse
TCETV of contaminating the soil and groundwater at and around the Taiwan Plant.
Following the press conference, the Director General of the Taiwan Environmental
Protection Agency’s (“TEPA”) Bureau of Water Quality Protection demanded that TCETV
develop a cleanup strategy. TEPA did not order TCETV to remediate the soil or
groundwater because, at that time, there was no statute authorizing Taiwanese agencies to
impose retroactive liability on former owners, such as TCETV, by compelling them to
remediate.
On June 16, 1994, Thomson SA’s risk manager notified CIGNA, its insurer at the
time, that “Taiwan authorities inform[ed] us of the existence of toxic substances in the
ground” at the Taiwan Plant and “are holding us responsible.” Appellee’s App. at 436.
Thomson SA also expressed concern that, “these substances could have (or could have had)
negative effects upon the health of our employees, to be seen in the neighborhood drawing
water from wells in the proximity of” the Taiwan Plant. Id. The letter requested that an
insurance claim be opened. On October 11, 1995, Thomson sent a claim declaration
regarding “Taiwan Pollution” for “assumption of responsibility resulting from the
discovery in Taiwan of toxic industrial waste contamination of a site formerly used by
Thomson,” bearing a date of claim of June 2, 1994. Id. at 438.
Notwithstanding the lack of a remediation order from TEPA, TCETV and GE began
the remediation process and successfully remediated the soil. A TCETV employee
explained why the company decided to proceed with remediation voluntarily:
4
even if there wasn’t a specific, definitive legal statute that [T]EPA . .
. could point to to require the cleanup, there were other reasons to go
ahead and proceed to make sure that the situation in Taiwan was
handled appropriately; that being, one, to minimize down the road
potential impact that could be caused by letting this situation continue
to not be addressed, and . . . it’s good corporate practice to . . . take
care of situations before they get out of control so that you can
minimize, in the long run, potential liability . . . to the entire Thomson
group.
Appellant’s App. at 149-50. In 1998, the soil remediation had been successful enough that
TEPA issued a “No Further Action” letter to TCETV.
The groundwater contamination, however, was another issue altogether. TCETV
and GE determined that groundwater remediation was neither required nor feasible. They
proposed natural attenuation with monitoring to address that issue. TEPA did not order
TCETV to remediate the groundwater, inasmuch as it lacked the authority to do so at that
time.
In 2000, the Taiwanese legislature passed a new statute, the Soil and Groundwater
Remediation Act. This law gave Taiwan’s environmental authorities the power that they
had lacked before -- the power to impose retroactive liability on entities that had caused
contamination in the past and to require them to remediate that contamination.
Additionally, the new law put in place new Class II groundwater standards. Pursuant to
this law, in 2002, the Taoyuan County Environmental Protection Bureau (“TEPB”) issued
an order (“the TEPB Order”) that required TCETV to remediate the groundwater to the
newly-formulated Class II groundwater standards. TCETV has challenged the order
5
through the Taiwanese administrative process, but to avoid incurring fines, it has also
complied with the order.
On July 8, 2008, TCETV notified XL of the TEPB Order. Between July 8, 2008,
and October 9, 2012, when Thomson filed the motion for summary judgment at issue
herein, TCETV incurred approximately $4.3 million in costs in remediating the
groundwater at and around the site of the Taiwan Plant.
Circleville, Ohio
In 1987, Thomson acquired a plant from GE that was located in Circleville, Ohio
(“the Circleville Plant”). Thomson operated the Circleville Plant until it closed in 2004.
The manufacturing process at the plant included the use of lead and industrial chemicals,
and some contamination occurred at the site.4
On February 23, 1994, the Ohio Environmental Protection Agency (“OEPA”)
ordered Thomson and GE to investigate contamination at the site and develop a
remediation plan (“the 1994 Consent Order”). No actual remediation was ordered, and
none has been ordered to date. Thomson entered into the 1994 Consent Order, consented
to OEPA’s jurisdiction and power to enforce it, and agreed to the terms of the order. In
2011, OEPA issued an order requesting additional soil sampling from the raw materials
handling area at the Circleville Plant, which was an area not previously included in the
1994 Consent Order. Thomson has incurred costs of approximately $25,000 during its
investigation into the Circleville Plant contamination.
4
Thomson was aware of the contamination issues when it purchased the plant from GE in 1987.
6
The Litigation
XL sold multiple insurance policies to Thomson beginning on January 1, 2000.
Specifically at issue in this litigation are policies covering the years of 2000, 2001, and
2002. At some point, Thomson filed insurance claims for the costs it incurred in the
remediation of the groundwater at the Taiwan Plant and in the investigation of the
contamination at the Circleville Plant. XL denied coverage. On July 11, 2008, Thomson
filed a complaint against XL and other insurers regarding the denial of coverage.5
On October 9, 2012, Thomson moved for summary judgment, arguing that, as a
matter of law, XL owed Thomson defense and indemnity obligations for the Taiwan Plant
remediation. On October 19, 2012, XL filed a cross-motion for summary judgment,
arguing that, as a matter of law, it owed no defense or indemnity obligations to Thomson
for either the Taiwan Plant or the Circleville Plant.
On December 12, 2013, the trial court granted summary judgment in favor of XL
and denied Thomson’s motion for summary judgment. The trial court found that the known
loss doctrine precluded Thomson from its sought-after recovery under both the primary
and umbrella policies as to the Taiwan Plant. The trial court applied the same rationale to
the claims related to the Circleville Plant and held that a known loss precluded coverage
under XL’s policies. Thomson now appeals.
5
The complaint is not contained in the record on appeal.
7
DISCUSSION AND DECISION
Thomson argues that the trial court erred by granting summary judgment in favor
of XL and by denying Thomson’s motion for summary judgment. When reviewing the
denial of summary judgment, our standard of review is the same as that of the trial court.
Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d 327, 330 (Ind. Ct. App. 2014) (citing
Wellpoint, Inc. v. Nat’l Union Fire Ins. Co., 952 N.E.2d 254, 258 (Ind. Ct. App. 2011),
trans. denied), trans. denied. We stand in the shoes of the trial court and apply a de novo
standard of review. Id. (citing FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173
(Ind. Ct. App. 2012), trans. denied). Our review of a summary judgment motion is limited
to those materials designated to the trial court. Ind. Trial Rule 56(H); FLM, 973 N.E.2d at
1173. Summary judgment is appropriate only where the designated evidence shows there
are no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears
on the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view the
pleadings and designated materials in the light most favorable to the non-moving party. Id.
Additionally, all facts and reasonable inferences from those facts are construed in favor of
the nonmoving party. Id. (citing Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d
36, 40 (Ind. Ct. App. 2005), trans. denied).
A trial court’s grant of summary judgment is clothed with a presumption of validity,
and the party who lost in the trial court has the burden of demonstrating that the grant of
summary judgment was erroneous. Id. Where a trial court enters specific findings and
8
conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate
appellate review, but are not binding upon this court. Id. We will affirm upon any theory
or basis supported by the designated materials. Id. When a trial court grants summary
judgment, we carefully scrutinize that determination to ensure that a party was not
improperly prevented from having his or her day in court. Id.
In this case, the parties filed cross-motions for summary judgment. However, the
fact that cross-motions for summary judgment were made does not alter our standard of
review. Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind. Ct. App. 2007), trans.
denied. “Instead, we must consider each motion separately to determine whether the
moving party is entitled to judgment as a matter of law.” Id.
I. The Taiwan Plant
Thomson contends that the trial court erred in granting summary judgment to XL
because the trial court incorrectly concluded that the known loss doctrine prohibited it from
recovering under its primary or umbrella policies issued by XL as to the Taiwan Plant. The
known loss doctrine was recently explored by this court in another appeal (from separate,
unrelated litigation) involving Thomson and the Taiwan Plant:
“The ‘known loss’ doctrine is a common law concept deriving from the
fundamental requirement in insurance law that the loss be fortuitous. Simply
put, the known loss doctrine states that one may not obtain insurance for a
loss that has already taken place.” Gen. Housewares Corp.[v. Nat’l Sur.
Corp.], 741 N.E.2d [408,] 413 [(Ind. Ct. App. 2000)]. “[T]he known loss
doctrine is not so much an exception, limitation, or exclusion as it is a
principle intrinsic to the very concept of insurance.” Id. at 415. “[I]f an
insured has actual knowledge that a loss has occurred, is occurring, or is
substantially certain to occur on or before the effective date of the policy, the
known loss doctrine will bar coverage.” Id. at 414. Whether an insured had
9
actual knowledge is ordinarily a question of fact. Id. at 413-14. “[W]hen
determining a party’s actual knowledge, courts should keep in mind that a
party may not intentionally turn a blind eye in order to avoid application of
the known loss doctrine.” Id. at 413 n.3. “[B]ecause the effect of the known
loss doctrine is to avoid coverage, the burden of proving that the loss was
known is on the party seeking to avoid coverage.” Id. at 414.
“[T]here is a distinct difference between knowledge of the existence of
liability and knowledge of the full extent of liability.” Id. at 416.
The existence of liability can be known without the full extent
of liability being fixed. For example, if one negligently injures
a pedestrian with one’s automobile, one’s liability is
substantially certain. However, it may be months before the
dollar amount of liability is certain, and the known loss
doctrine bars purchasing insurance after the accident. An
insured’s liability need not be fixed to a monetary certainty; if
the known liability has occurred or is substantially certain to
occur, the known loss doctrine bars coverage.
Id. at 417.
Thomson, Inc. v. Ins. Co. of N. Am., 11 N.E.3d 982, 998-99 (Ind. Ct. App. 2014), trans.
pending.
With respect to the Taiwan Plant, Thomson argues that the known loss doctrine does
not apply because the doctrine “only bars coverage when a policyholder knows of liability,
not of conditions that might -- if the law were different -- lead to liability.” Appellant’s Br.
at 12 (emphasis in original). Specifically, Thomson emphasizes that when it purchased the
insurance policies at issue herein, the Taiwanese government was without authority to
mandate remediation. Therefore, Thomson asserts that, “[w]ithout a prior legal obligation,
there was no ‘known loss’ when the XL 2000-2002 . . . policies were purchased. The 2002
[T]EPB Order, and the statute which created the new authority to order the groundwater
10
cleanup pursued since 2002, did not exist until after XL had sold Thomson all the 2000 to
2002 policies.” Id. (emphasis in original).
In General Housewares, 741 N.E.2d 408, this court was called upon to determine
the application of the known loss doctrine in Indiana insurance law. We said that, because
the known loss doctrine was derived “from the fundamental requirement in insurance law
that a loss be fortuitous,” it applies where “an insured has actual knowledge that a loss has
occurred, is occurring, or is substantially certain to occur on or before the effective date of
the policy, the known loss doctrine will bar coverage.” Id. at 413, 414 (emphasis added).
This court was careful to distinguish between the “substantial certainty” test that it adopted
and the “substantial probability” test that a minority of other jurisdictions uses:
The term “probability” indicates the presence of contingency and fortuity,
the lack of which is the very essence of the known loss doctrine. Even if
there is a probability of loss, there is some risk, and the known loss doctrine
should not apply.
Id. at 414. When determining “loss,” the court held that a loss for purposes of the known
loss doctrine is not the underlying injury, but instead, the liability for that underlying injury.
Id. at 416.
In the present case, the application of the known loss doctrine requires a
determination of what constituted the loss and when Thomson had actual knowledge of it.
The trial court, in finding that the known loss doctrine barred coverage, confused the
environmental contamination of the Taiwan Plant with the legal liability to remediate it.
To be sure, Thomson had actual knowledge of the contamination of the soil and
groundwater on the Taiwan Plant long before January 1, 2000 when the first XL policies
11
became effective. Were it seeking coverage as result of such contamination, it would be
barred by the known loss doctrine.
However, Thomson is not seeking coverage for the environmental contamination to
the Taiwan Plant. Rather, it is seeking coverage for the legal liability to remediate that
contamination. That liability did not exist until the legislature in Taiwan enacted the
legislation providing for retroactive liability for remediating environmental contamination
in 2000. Prior to such enactment, Thomson could not have had actual knowledge of such
liability or known that it was substantially certain to occur.
Indiana requires actual knowledge of the known loss. Gen. Housewares, 741
N.E.2d at 414. Therefore, it is irrelevant whether Thomson or others predicted the
legislative enactment, whether it considered such enactment possible or even likely, or
whether certain legislators publicly complained about the contamination and called for
legislation to remediate it. Legislative enactments and the losses that result from them are
fortuitous events that cannot be known until the day of enactment. Until the legislation
was enacted, there was no liability, only the potential for such liability. Such a potential
may constitute a known risk, but not a known loss.
In Rohm & Haas Co. v. Continental Casualty Co., 781 A.2d 1172 (Pa. 2001), the
Pennsylvania Supreme Court held that the known loss doctrine applies if an insured was
aware or should have been aware of likely future losses. Id. at 1177. Language such as
“likely to occur” or “should have been aware” is too subjective a standard on which to base
insurance coverage. Should an insured homeowner in a tornado region in the mid-western
12
United States be denied coverage when his home is destroyed by a tornado on the basis
that it was likely to occur and he should have been aware of the risk? Insurers are in the
business of assessing risks and generally have a level of knowledge regarding insured risks
equal to or greater than that of the insured; where they do not, they have the ability to
remedy the disparity before issuing a policy.
We conclude that based on the evidence, Thomson did not have actual knowledge
of its retroactive liability for remediating environmental contamination until after the
effective dates of the policies purchased from XL. Therefore, the known loss doctrine did
not preclude coverage for Thomson’s remediation costs under both XL’s primary and
umbrella policies. The trial court erred in granting summary judgment in favor of XL and
in denying Thomson’s summary judgment motion as to the applicability of the known loss
doctrine.
II. The Circleville Plant
In the 1994 Consent Order, Thomson agreed to investigate potential contamination
and to implement any remedial actions that OEPA might order in the future. In 2011,
OEPA issued another order that requested additional soil sampling from the raw materials
handling area of the Circleville Plant. The raw materials handling area was not previously
included in the 1994 Consent Order. The trial court found that the known loss doctrine
barred coverage for the environmental cleanup of the Circleville Plant and granted
summary judgment to XL.
As noted previously, in order for the known loss doctrine to bar coverage, an insured
13
must have actual knowledge that a loss has occurred, is occurring, or is substantially certain
to occur on or before the effective date of the policy. Gen. Housewares, 741 N.E.2d at
414. Summary judgment is not appropriate if a genuine issue of material fact exists. T.R.
56(C). At trial, XL had the burden of demonstrating that Thomson had actual knowledge
of a loss regarding the raw materials handling area prior to the purchase of XL’s policies.
Gen. Housewares, 741 N.E.2d at 414.
Although the trial court found that the 1994 Consent Order governed the entire
Circleville Plant, the designated evidence did not show that the raw materials handling area
was subject to the 1994 Consent Order. Tom Sipher, who had overseen Thomson’s
participation in the investigation and remediation of the Circleville Plant since 2004, stated
in an affidavit that the raw materials handling area had not previously been subject to
investigation and remediation. Appellant’s App. at 406-07. Although several lagoons and
the hazardous waste building are discussed as areas where contamination was found,
nowhere in the 1994 Consent Order is the raw materials handling area mentioned. Id. at
412-20. Additionally, the 2011 OEPA order requiring the soil sampling of the raw
materials handling area specifically stated that, “[b]ecause the raw materials handling area
was then part of the glass manufacturing operation, this area was not included” in the 1994
Consent Order or “as a potential exposure area as part of the human health risk assessment.”
Id. at 408.
Based on the evidence, we conclude that a material issue of fact exists as to whether
Thomson had actual knowledge of its liability as to contamination at the raw materials
14
handling area prior to the purchase of XL’s policies. Because a material issue of genuine
fact exists, summary judgment was not proper, and the trial court erred in granting XL’s
motion as to the Circleville Plant. We, therefore, reverse the trial court’s grant of summary
judgment in favor of XL and remand for further proceedings.
Reversed and remanded.
ROBB, J., concurs.
BAKER, J., dissents with separate opinion.
15
IN THE
COURT OF APPEALS OF INDIANA
THOMSON INC. n/k/a )
TECHNICOLOR USA INC. et al., )
)
Appellants-Plaintiffs, )
)
vs. ) No. 49A02-1401-PL-9
)
XL INSURANCE AMERICA, INC. f/k/a )
WINTERTHUR INTERNATIONAL )
AMERICA INSURANCE COMPANY, )
)
Appellee-Defendant. )
BAKER, Judge, dissenting.
I respectfully dissent. I believe that the known loss doctrine prohibits Thomson
from recovering its damages stemming from both the Taiwan and Ohio sites.
Underlying the known loss doctrine is a well-established and prudent principle that
“a party may not intentionally turn a blind eye in order to avoid application of the known
loss doctrine.” Gen. Housewares, 741 N.E.2d at 414 n.3. In other words, the application
of this doctrine—or the declination to apply it—should not encourage would-be insureds
to bury their heads in the proverbial sand. That would be bad public policy, indeed.
In this case, with respect to the Taiwan site, the record establishes that Thomson has
been aware of the environmental contamination at the Taiwan site since 1989. And in
16
voluntarily working to remediate the contamination, Thomson “ha[s] conducted [itself] in
every sense like [an entity] accepting liability for the consequences of [its] actions. These
are precisely the sort of known losses which the principle of fortuity and the common law
doctrine that derives from it preclude would-be insureds from foisting on unsuspecting
carriers.” Appellee’s Br. p. 18. Further evidence of the acceptance of the liability is the
1994 letter from Thomson SA to CIGNA, its insurer at the time, explaining that there had
been contamination at the Taiwan site and that “Taiwanese authorities . . . are holding us
responsible.” Appellee’s App. p. 436. Additionally, Thomson sent a letter to CIGNA in
1995 making a claim that was dated June 2, 1994, regarding “Taiwan pollution.” Id. at
438.
In other words, Thomson knew that the ground was contaminated. Thomson knew
that the Taiwanese government was understandably unhappy with the situation. Thomson
knew that the government held Thomson responsible for the contamination. And while
Thomson received a No Further Action letter from Taiwan regarding the soil remediation,
Thomson knew that the Taiwanese government was dissatisfied with its lack of effort
regarding remediation of the groundwater contamination. Although it is true that the
Taiwanese government lacked the authority to enforce its cleanup demands until 2000,
Thomson was well aware of the underlying issues long before the statute and EPB Order
were issued.6 To hold that Thomson did not “know” of this “loss” when it entered into the
6
Moreover, the record establishes that the sole motivator for the adoption of the 2000 statute was
Thomson’s failure to remediate the contamination in a way that satisfied the Taiwanese government. To
find in Thomson’s favor would permit a policyholder to benefit from its own wrongful conduct. In XL’s
words, “Policyholders would receive more insurance coverage by defying existing laws and orders, forcing
17
insurance policies at issue would be to turn the known loss doctrine on its head and to
encourage would-be insureds to put on their blinders with superglue. I believe that such a
result would be poor public policy. Therefore, I would find that the trial court properly
granted summary judgment in favor of XL with respect to the primary policies related to
the Taiwan site.
Likewise, I believe that Thomson should not be able to recover under its excess
insurance policies. Thomson directs our attention to authority providing that with respect
to excess policies, a policyholder must know that a liability will reach the excess layers
before coverage is barred under the known loss doctrine. See HSB Group, Inc. v. SVB
Underwriting, Ltd., 664 F. Supp. 2d 158, 184 (D. Conn. 2009).
I do not believe that authority is applicable to the instant case. In General
Housewares, this Court found that application of the known loss doctrine was dependent
upon knowledge of the existence of liability rather than the extent of it, and the Court did
not distinguish between different types of policies in applying this general rule. 741 N.E.2d
at 415-16. To find that application of the known loss doctrine to umbrella insurance
policies requires knowledge of the extent of liability would be to turn the General
Housewares principle on its head. Furthermore, I agree with XL that “[i]f Thomson and
TCETV can obtain coverage under the XL Umbrella Policies for a known loss that is not
covered under the XL Primary Policies then Indiana’s known loss doctrine becomes
the government to enact stricter measures which can then be characterized as a ‘different clean-up,’ and
then passing those costs to their insurers. That argument would create bad public policy and law.”
Appellee’s Br. p. 30.
18
meaningless.” Appellee’s Br. p. 39. Consequently, I would find that the trial court did not
err by granting summary judgment in favor of XL with respect to the umbrella policies
related to the Taiwan site.
I would reach the same result with respect to the Circleville site. In the 1994
Consent Order, Thomson agreed to investigate potential contamination and to implement
any remedial actions that OEPA might order in the future. By entering into this order,
Thomson accepted responsibility for contamination at this site, and its arguments to the
contrary relate to the extent, rather than the existence, of the liability. See Gen.
Housewares, 741 N.E.2d at 417 (holding that “[a]n insured’s liability need not be fixed to
a monetary certainty; if the known liability has occurred or is substantially certain to occur,
the known loss doctrine bars coverage”).
The 2011 order does not change this result, inasmuch as the 1994 Consent Order
relates to the entirety of the site. In other words, contamination of the raw materials
handling area is still contamination at the Circleville Site, which is already governed by
the 1994 Consent Order. Thomson knew of the potential contamination at this site in 1994
and agreed to investigate it and remediate it, if necessary. It cannot now claim that it did
not “know” of the potential “loss” related to the contamination. I would find, therefore,
that the trial court did not err by granting summary judgment in XL’s favor with respect to
the Circleville site.
19