P.R. Mallory & Co. v. American Casualty Co. of Reading, PA

NAJAM, Judge,

concurring in result.

The central issue in this appeal is whether two insurance companies ("the insurers") have a duty to defend Radio Materials Corporation ("RMC") under policies issued between December 29, 1980, and December 29, 1984 ("the policies"). The majority affirms the trial court's grant of summary judgment to the insurers on the rationale that RMC gave the insurers unreasonably late notice of occurrences purportedly covered by the policies. I concur in the result reached by the majority, but I respectfully disagree with the majority's rationale in reaching that result. The disposition of this case does not turn on whether RMC satisfied the notice requirement by giving notice "as soon as practicable" or by giving "reasonable notice" under the policies, but on whether there was an "occurrence" during the policy period. Considering the policies and the designated evidence, RMC has shown no evidence of property damage to non-owned property during the policy period and, therefore, no occurrence took place that could suggest coverage. Therefore, the insurers have no duty to defend RMC.

The timeline of the most relevant events 22 is as follows:

©1950-1963: RMC dumps waste at "Site A," which is on property owned by RMC in Attica, Indiana;
*757©1963-August of 1980; RMC dumps waste at "Site B," which is on property owned by RMC in Attica;
©1995-1996: RMC learns of extensive contamination at its Attica site (which, again, it owns) and begins on-site cleanup, during which RMC learns that it has contaminated groundwater;
e March of 1999; EPA finds "a release of hazardous waste into the environment from the Attica facility";
e August of 2000: RMC files suit against multiple insurance companies, including the parent company of two insurers at issue here.

See Appellees Brief at 7 (citing to the appendix).

The policies defined the relevant terms as follows:

©"Occurrence" is defined as "an accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended ...."
@ "Property damage" is defined as "(1) physical injury to or destruction of ... property which occurs during the policy period ... or (2) loss of use ... provided such loss ... is caused by an occurrence during the policy period."
® Excluded from coverage is "property damage to (1) property owned or occupied by ... the insured," RMC.
@ "Notice" is required as follows: "In the event of an occurrence, written notice containing ... reasonably obtainable information with respect to the time, place, and cireumstances thereof ... shall be given ... as soon as practicable."

See, e.g., Appellants' App. at 1172-73, 1176. The defined terms in the policy must be read together and harmonized. See Van Prooyen Builders, Inc. v. Lambert, 907 N.E.2d 1032, 1034-35 (Ind.Ct.App.2009), trans. denied.

Thus, of course, there must be an occurrence before notice is required. And an occurrence means damage to non-owned property. At first, the policy language is unclear on when the damage to non-owned property must happen. On the one hand, subsection (2) of the definition of "property damage" says that the damage must be caused by an "occurrence during the policy period." That language suggests that only the contamination itself-not the property damage-must occur during the policy period. This is the interpretation assumed by the trial court and by the majority. Under this interpretation, RMC had a duty to contact its insurers "as soon as practicable" after RMC learned that it had contaminated its own land, to protect against the possibility that the insured's contaminated land might damage nearby, non-owned property at some indefinite time in the future.

But that interpretation is untenable for at least two reasons. First, the facts establish that RMC intentionally buried contaminants on its own land well before the first policy was issued in December of 1980. Thus, RMC would have had to provide notice to the insurers immediately after RMC entered into its policies in order to preserve coverage (assuming coverage would apply in this seenario). Second, and more significantly, this interpretation would require notice of contamination that does not result in third-party property damage, which is contrary to the policy's definition of an occurrence, which, again, is the only prerequisite to notice.

But subsection (1) of the definition of "property damage" clearly states when the damage to non-owned property must occur: "physical injury to or destruction of [non-owned] property which occurs during the policy period ...." That is, the damage to non-owned property-not the accident itself-must have happened during the policy period, ie., sometime be*758tween December of 1980 and December of 1984. On appeal, RMC advocates for this reading of the policies. See Appellants' Brief at 23-24. I agree that this interpretation is the only reasonable interpretation of what constitutes an occurrence that would give rise to the notice requirement.

Thus, I agree with RMC's interpretation of the policies. Only third-party property damage triggers coverage. As such, an occurrence requires actual-not possible-off-site contamination during the policy period. Accordingly, RMC's duty to notify the insurers arose when RMC first learned of actual third-party property damage due to off-site contamination, which was the position taken by RMC at oral argument.

That said, RMC has not demonstrated that any third-party property damage originated during the policy period. RMC repeatedly asserts that it is currently being sued by third parties for, among other things, property damage. But RMC has not included copies of those complaints in its voluminous appendices. Nor has RMC included any environmental studies of non-owned property that either (1) indicate actual property damage to non-owned property or (2) demonstrate a nexus between any alleged damage and the policy period. To the contrary, RMC has designated no evidence that, during the policy period, December of 1980 to December of 1984, there was any damage to non-owned property. Thus, under the plain language of the policies, RMC is not entitled to coverage.

Of course, the question in this appeal is not whether RMC is entitled to coverage, but whether the insurers have breached their duty to defend RMC from the third-party lawsuits claiming property damage. As this court has held, "the duty to defend ... arises before all the facts can be determined at trial. insurer [must] examine the allegations of the complaint and make a reasonably complete investigation of the facts [ ] before it can deny coverage and consequent defense." Am. States Ins. Co. v. Aetna Life & Cas. Co., 177 Ind.App. 299, 379 N.E.2d 510, 518 (Ind.Ct.App.1978). RMC relies on the threshold nature of the duty to defend to criticize the insurers for "mislead{ing] the [t}rial [cJourt by arguing only that [RMC] was aware of some very general conditions at the Attica Site without establishing when any 'property damage' actually occurred." Appellants' Brief at 24. In effect, RMC contends that the pending third-party actions, which are the first indication of actual, third-party property damage due to off-site contamination, relate back to the poli-ey period.

In a coverage case, it is incumbent on the insured to present facts that indicate coverage. As we have held, where the facts alleged by an insured (and summary judgment nonmovant) reveal no cireum-stances that would indicate coverage, the insurer can "not be held to have been required to defend" the insured from third-party actions. Am. States Ins. Co., 379 NE2d at 518. Here, there is no evidence regarding when or for how long the contaminants had migrated off-site, and there is no evidence of actual third-party property damage between December of 1980 and December of 1984. More is required than the allegation that RMC is being sued by third parties for property damage. See Ind. Appellate Rule 46(A)(8)(a). Where, as here, there are no circumstances that would indicate coverage, the insurers cannot be required to defend RMC against the pending third-party actions.

Accordingly, for these reasons I concur in the result reached by the majority in favor of the insurers.

. These facts are detailed in the insurers' brief, with citations to the appendices. RMC has not challenged the insurers' recitation of these particular facts on appeal.