Allstate Insurance Co. v. Dana Corp.

ATTORNEYS FOR APPELLANT

Max Gray
Indianapolis, Indiana

Stephen D. Cuyler
Thomas J. Castano
Parsippany, New Jersey

Robert F. Walsh
Susan M. Chesler
New York, New York

Steven Lovern
Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE:

Steven M. Badger
Insurance Environmental Litigation Association
Indianapolis, Indiana

Laura A. Foggan
Karalee C. Morell
Insurance Environmental Litigation Association
Washington, D.C.
ATTORNEYS FOR APPELLEE

George M. Plews
Frederick D. Emhardt
Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE:

Frank J. Deveau
Donald C. Biggs
Julia E. Dimick
Indiana Petroleum Marketers and Convenience Stores Association, Inc.
Indiana Manufacturers Association
National Solid Wastes Management Association
Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

ALLSTATE INSURANCE COMPANY, )
solely as successor-in-interest to )
Northbrook Excess & Surplus Insurance )
Company, f/k/a Northbrook Insurance )
Company, ) Indiana Supreme Court
) Cause No. 49S02-0105-CV-231
Appellant (Defendant Below), )
) Indiana Court of Appeals
v. ) Cause Nos. 49A02-9909-CV-666
) 49A02-9906-CV-
430
DANA CORPORATION, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Jester, Judge
Cause No. 49D01-9301-CP-0026
__________________________________________________________________

ON PETITION FOR TRANSFER

__________________________________________________________________

December 20, 2001

BOEHM, Justice.
This consolidated appeal addresses a number of issues of insurance
coverage for environmental cleanup liabilities.
Factual and Procedural Background
Dana Corporation is a manufacturer of automotive components. Sixty-
three of its facilities, located in nineteen states, have become the
subject of governmental or third-party actions resulting in substantial
environmental cleanup costs. Allstate Insurance Company is the successor
in interest to Dana’s excess liability insurer in the relevant years. When
Dana’s liability insurers denied coverage for the cleanup, Dana sued.
Several trial court rulings produced an interlocutory appeal in 1997.
Hartford Accident & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 288 (Ind. Ct.
App. 1997), trans. denied. In that appeal, the Court of Appeals held: (1)
Indiana law governed construction of the policies; (2) the term “suits,” as
used in the policies, included “coercive and adversarial administrative
proceedings”; and (3) the term “damages,” as used in the policies, included
“EPA or state-mandated cleanup and response costs.” Id. at 294, 296, 298.
In general, these holdings meant Dana was entitled to indemnity for cleanup
costs, subject to policy limits and exclusions.
After the first appeal, Dana settled with all of its insurers except
Allstate. Although Dana’s coverage of at least some cleanup costs was
established, a number of issues remained unresolved. These were the
subject of a second round of motions resulting in the trial court’s entry
of judgment for Dana in the amount of $4,599,314.30 as to Dana’s facility
in Old Forge, Pennsylvania, one of the several sites. Although liability
as to the other sites remained unadjudicated, the trial court certified the
Old Forge judgment and a number of earlier rulings on partial summary
judgments for appeal pursuant to Trial Rule 54(B). Both Allstate and Dana
appealed. Each challenged three of the trial court’s rulings and defended
three others. The Court of Appeals addressed all six in detail, affirming
two and reversing four. Allstate Ins. Co. v. Dana Corp., 737 N.E.2d 1177
(Ind. Ct. App. 2000). This Court granted transfer.
Standard of Review
All of the issues in this appeal address Allstate’s liability to Dana
under excess liability policies issued by Allstate’s predecessor,
Northbrook Excess and Surplus Insurance Company, for five policy years from
1977 through 1982.[1] The trial court’s rulings and judgments were on
motions for partial summary judgment by Dana and Allstate.[2] Summary
judgment is appropriate only where the evidence shows that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v.
Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998).
I. Liability for Property Damage to Ground Water on Dana-Owned Property
Each of the policies provides that Allstate will pay all sums Dana
becomes obligated to pay because of liability for damages resulting from
“property damage.” Much of the disputed cost is for remediation of
contaminated ground water. A primary issue in the trial court and Court of
Appeals was whether ground water constitutes property of the landowner, and
if it does, whether the policies cover cleanup related to ground water in
Dana’s own property. Whether Allstate must pay for the costs incurred by
Dana in complying with orders to clean up its own property depends on (1)
the scope of the policies’ coverage grants,[3] and (2) the effect of the
policies’ exclusions for “property damage” to property owned by Dana.
Essentially, the determination of both issues comes down to how “property
damage” is defined in each policy.
Other courts have arrived at varying interpretations of similar “owned
property” exclusions in the context of claims for costs associated with
environmental cleanup orders.[4] We start from the proposition that
“contracts for insurance are subject to the same rules of interpretation as
are other contracts. If the policy language is clear and unambiguous, it
should be given its plain and ordinary meaning.” Eli Lilly & Co. v. Home
Ins. Co., 482 N.E.2d 467, 470 (Ind. 1985) (citations omitted). Here, each
policy’s language does provide an answer, albeit different answers for
different policies.
The 1977, 1978 and 1979 policies contain identical language in both
their coverage grants and “owned property” exclusions. The 1980 and 1981
policies are identical to each other in this respect, but differ from the
first three.
A. 1977-79 Policies
The 1977-79 policies define “property damage” as “loss of or direct
damage to or destruction of tangible property (other than property owned by
an Insured) which results in an Occurrence during the policy period.”
Given this definition of “property damage,” these policies provide coverage
for:
all sums which the insured shall be obligated to pay by reason of the
liability . . . imposed upon the Insured by law . . . for damages on
account of . . . [loss of or direct damage to or destruction of
tangible property (other than property owned by an Insured)] . . .
caused by or arising out of each Occurrence happening anywhere in the
world.

(emphasis added). Thus, these policies provide coverage for liability
resulting from damage to property owned by others, but deny coverage for
liability resulting from damage to Dana’s own property. Because there is
no liability coverage for damage to Dana’s own property, reference to the
“owned property” exclusion in these policies is unnecessary.
We are uncertain to what extent Dana’s claims are based on cleanup of
ground water that remained solely within the confines of Dana’s property.
Under this coverage grant, if ground water in Dana’s land is Dana’s
property, then the 1977-79 policies provide no coverage for cleanup in that
category. The Court of Appeals concluded that “[u]nless and until a
landowner takes the ground water into actual possession, it remains the
property of the State,” 737 N.E.2d at 1187, and that because Dana had not
taken the ground water into possession, the policies afforded coverage. We
disagree with the Court of Appeals’ analysis of this issue.
In Wiggins v. Brazil Coal & Clay Corp., 452 N.E.2d 958, 964 (Ind.
1983), this Court held that plaintiffs who owned a lake formed from ground
water had no cause of action against a strip mining company, where the
company’s removal of ground water on its property resulted in a lower water
level for the plaintiffs’ lake. This Court stated, “Ground water is part
of the land in which it is present and belongs to the owner of that land.”
Id. This holding derives from the English Rule, or absolute dominion rule,
that “ground water is part of the land and the landowner has the absolute
right to use the water as he wishes.” City of Valparaiso v. Defler, 694
N.E.2d 1177, 1179 (Ind. Ct. App. 1998). In Defler, the Court of Appeals
took Wiggins to mean that the plaintiffs had no cause of action because,
not having taken it into possession, they had no ownership interest in the
ground water on their land. Id. at 1181. The Court of Appeals in the
present case applied this doctrine, citing Defler, to conclude that the
“owned property” exclusion did not apply.
We believe the Court of Appeals, here and in Defler, misconstrued the
holding in Wiggins by equating restrictions on ground water use with lack
of ground water ownership. Wiggins observed that Indiana follows a
modified version of the English Rule, in that water “may be put to use to
the fullest extent to further enjoyment of the land, however this right
does not extend to causing injury gratuitously or maliciously to nearby
lands and their owners.” Wiggins, 452 N.E.2d at 964 (emphasis added).
This is not a holding with respect to ownership of the water. Rather, it
is a holding that although ground water is the landowner’s property, the
landowner does not enjoy the absolute immunity for its harmful use that the
English Rule would have granted. Otherwise stated, the plaintiffs in
Wiggins had no cause of action, not because they had no ownership interest
in the water in their land, but because the strip mining company was free
to do with the water in its land as it saw fit, so long as the resulting
injury was not gratuitous or malicious. Wiggins, 452 N.E.2d at 964. So
viewed, the Indiana modification to the English Rule limited the
permissible use of ground water, but did not abandon the common law status
of ground water as property of the landowner.[5]
Because any contamination of ground water in Dana-owned land is
contamination of Dana-owned property, the 1977-79 policies do not provide
indemnification under “property damage” for the cost of treating
contamination on Dana’s property. The necessary corollary to this
principle is that if the ground water has percolated beyond the confines of
the landowner’s property, it no longer belongs to that landowner. As a
result, there is property damage coverage to the extent liability is based
on damage caused by contaminated ground water escaping Dana’s property or
by contamination directly affecting ground water outside Dana’s borders.
Although we reach this conclusion as to the 1977-79 policies by a reading
of the coverage grants, rather than their “owned property” exclusions, we
affirm the trial court’s denial of Dana’s motion for partial summary
judgment on this issue.
B. 1980-81 Policies
The 1980 and 1981 policies do not refer to any concept of ownership by
others in defining the coverage for property damage. These policies
provide indemnification “for all sums which the INSURED shall be obligated
to pay by reason of the liability imposed upon the INSURED by law . . . for
damages and expenses, because of [physical injury to or destruction of
tangible property].” As to these policies, Allstate relies on the “owned
property” exclusion. It states: “This policy shall not apply: . . .
[u]nder PROPERTY DAMAGE to injury to or destruction of or loss of: (1)
property owned by any INSURED . . . .” Allstate contends this exclusion
bars indemnification for costs imposed on Dana to clean up contamination at
Dana-owned sites. We do not agree. The exclusion states that no coverage
exists for the damage to Dana’s property, but does not state that no
coverage exists for the liability to third parties resulting from that
damage.
This difference between claims for property damage and claims for
liability resulting from property damage was highlighted in Unigard Mut.
Ins. Co. v. McCarty’s Inc., 756 F. Supp. 1366, 1369 (D. Idaho 1988). Here,
as in Unigard, Dana has not asserted claims intended “to restore [its] land
for [its] benefit,” id.; rather, Dana is asserting claims based on its
liability to third parties, which is the very purpose for which the
policies were procured. Cf. Patz v. St. Paul Fire & Marine Ins. Co., 15
F.3d 699, 705 (7th Cir. 1994) (“It is a policy of liability insurance, not
casualty insurance, on which [the insureds] have sued. They seek to
recover the cost of complying with a government order . . . . The fact
that the clean up occurred on their land is irrelevant.”).
“It is well settled that ‘[w]here there is ambiguity, insurance
policies are to be construed strictly against the insurer’ and the policy
language is viewed from the standpoint of the insured.” Bosecker v.
Westfield Ins. Co., 724 N.E.2d 241, 244 (Ind. 2000) (quoting Am. States
Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind. 1996)). We think the
exclusion can be fairly read to apply only to exclude repair or replacement
of Dana’s property, not to exclude liability to third parties. Unlike the
1977-79 policies, it does not exclude “damages from” injuries to self-owned
property. Given these frequently cited maxims of insurance law, that is
enough to confer coverage.
As to the 1980 and 1981 policies, we reverse the trial court and
direct entry of partial summary judgment on this issue for Dana.
II. Personal Injury Coverage
The 1977-80 policies cover liability for damages due to the following
“Personal Injuries”:
[B]odily injury (including death at any time resulting therefrom),
mental injury, mental anguish, shock, sickness, disease, disability,
false arrest, false imprisonment, wrongful eviction, detention,
malicious prosecution, discrimination, humiliation; also libel,
slander or defamation of character or invasion of rights of privacy,
except that which arises out of any advertising activities . . . .

None of the liabilities asserted here is for conventional individual
personal injuries. No one has claimed sickness or death resulting from
toxic contact. Rather, the liabilities are cleanup costs essentially
prophylactic in nature. The trial court, finding the terms “wrongful
eviction” and “invasion of rights of privacy” ambiguous, nevertheless
determined that Dana’s environmental liabilities are covered as falling
within these categories of “personal injuries.”
A. Wrongful Eviction
The Court of Appeals concluded that the term “eviction” “depends upon
a relationship between the evictor and evictee of landlord and tenant. It
also requires a dispossession of property.” 737 N.E.2d at 1199.
Therefore, coverage under this term in the 1977-79 policies does not
“extend to [environmental cleanup] costs except where a tenant of Dana was
compelled to vacate a location because of environmental damage.” Id. We
agree with the Court of Appeals. There is no showing that Dana
dispossessed anyone, and we find no coverage for wrongful eviction.
B. Invasion of Rights of Privacy
The extent to which the tort of invasion of privacy is recognized in
Indiana is not yet settled. See Doe v. Methodist Hosp., 690 N.E.2d 681
(Ind. 1997) (disagreement whether to recognize claim for “public disclosure
of private facts”). However, as a general proposition, the tort of
“invasion of rights of privacy” has taken four forms: (1) public disclosure
of private facts, (2) intrusion, (3) appropriation, and (4) false light in
the public eye. Ledbetter v. Ross, 725 N.E.2d 120, 123 (Ind. Ct. App.
2000). Of these four, it seems apparent that only the “intrusion” form of
the tort could arguably apply.
“When the invasion of a plaintiff’s right to privacy takes the form
of intrusion, it consists of an intrusion upon the plaintiff’s physical
solitude or seclusion as by invading his home or conducting an illegal
search.” Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (citing W.
Prosser & J. Keaton, Prosser and Keaton on Torts § 117 (5th ed. 1984)).
Launching a missile onto a person’s property may be a tort, but it is, in
itself, not an invasion of privacy, however intrusive it may be. The entry
of contaminants onto one’s property is in the same category. It is a
physical tort, and, except to the extent any tort is disturbing, has no
component of disrupting an individual’s repose.
The Court of Appeals concluded that the term “invasion of rights of
privacy” is ambiguous, and construed it against Allstate in finding that
the term provided coverage for Dana. We agree that the term is shadowy,
but for ambiguity to confer coverage, the covered item must be somewhere
within the circle of ambiguity. Here, even the outermost reaches of the
term’s penumbra do not embrace a chemical transgression of the sort giving
rise to Dana’s environmental liability.
Because the terms “wrongful eviction” and “invasion of rights of
privacy” do not support Dana’s claim for coverage, we reverse the trial
court’s grant of Dana’s motion for partial summary judgment as to coverage
for personal injury liability under those terms.
C. Wrongful Entry
“Wrongful entry” is among the “personal injuries” covered in the 1980
and 1981 policies. The trial court ruled that this term afforded Dana
“personal injury” coverage under those policies. Allstate has not
challenged that ruling, and we express no opinion as to it.
III. Coverage for “All Sums Caused by an Occurrence”
The policies provide that Allstate will pay “all sums which [Dana]
shall be obligated to pay by reason of the liability . . . imposed upon
[Dana] by law . . . for damages because of [personal injury or property
damage] . . . caused by an OCCURRENCE . . . .” The definition of
“occurrence,” in determining coverage for liability from personal injury or
property damage, is “an accident, event or happening including continuous
or repeated exposure to conditions which results, during the policy period,
in Personal Injury [or] Property Damage . . . neither expected nor intended
from the standpoint of the Insured.”
These policies require Allstate to indemnify Dana for all sums paid as
a result of liability arising from any covered accident or event resulting
in property damage or personal injury that occurs during the policy period.
Allstate contends it is responsible only for the portion of damages
incurred in a particular policy period. It argues for a proportional
allocation of damages among each triggered policy period. In the case of
evolving damages, an “occurrence” as that term was used in the CGL policies
of this era may take place over time. Cf. Eli Lilly & Co. v. Home Ins.
Co., 653 F. Supp. 1, 10 (D.D.C. 1984). If so, the “other insurance”
clauses typically found in these policies may have the effect of prorating
the damages among the insurers on the risk at different times in that
period. Cf. Ind. Ins. Co. v. Am. Underwriters, Inc., 261 Ind. 401, 407-08,
304 N.E.2d 783, 787 (1973).
However, there is no language in the coverage grant, including the
definitions of “property damage,” “personal injury,” or “occurrence,” that
limits Allstate’s responsibility to indemnification for liability derived
solely for that portion of damages taking place within the policy period.
By the policy’s terms, once an accident or event resulting in Dana’s
liability—an occurrence—takes place within the policy period, Allstate must
indemnify Dana for “all sums” Dana must pay as a result of that occurrence,
subject to the policy limits. We agree with the Court of Appeals that
whether or not the damaging effects of an occurrence continue beyond the
end of the policy period, if coverage is triggered by an occurrence, it is
triggered for “all sums” related to that occurrence.
We reverse the trial court and direct entry of partial summary
judgment on this issue for Dana.
IV. Exhaustion of Aggregate Limits of Primary Policies
Dana’s primary liability insurer in the relevant years was The
Hartford Insurance Group. Dana contends that the Hartford policies had
property damage liability limits of $1 million per occurrence and also an
aggregate $1 million limit. If so, once the total of $1 million in
coverage for the policy year was exhausted, Allstate, as the excess
insurer, was responsible for the balance. Allstate argues that the
Hartford policies had no aggregate limits, and contained only per
occurrence limits of $1 million for property damage liability. Under
Allstate’s view, Allstate’s liability as an excess carrier was triggered
only if Dana incurred more than $1 million on a single occurrence. All
agree that the contamination at each Dana location constitutes a separate
occurrence.
The trial court found no aggregate limits in the Hartford policy, and
the Court of Appeals agreed. 737 N.E.2d at 1196. The source of contention
is the section “Limits of Liability” in the Hartford policies. That
section states:
The total liability of the company for all damages because of all
property damage sustained by one or more persons or organizations as
the result of any one occurrence shall not exceed the limit of
property damage liability stated in the schedule as applicable to
“each occurrence.”

Subject to the above provision respecting “each occurrence”, the total
liability of the company for all damages because of all property
damage to which this coverage applies and described in any of the
numbered subparagraphs below shall not exceed the limit of property
damage liability stated in the schedule as “aggregate”:

(1) all property damage arising out of premises or operations
rated on a remuneration basis . . . .

Allstate contends that, for the aggregate limit to apply, the property
damage liability must have been rated on a “remuneration basis.” Allstate
further contends that the policies were rated on the basis of “sales,” not
“remuneration,” and therefore there are no aggregate limits. Dana argues
that the policies are ambiguous as to how the various risks were rated, and
extrinsic evidence renders summary judgment inappropriate. Although
Hartford was among the insurers who settled their disputes with Dana, it
requested and received leave to intervene in this appeal because, it
contends, the presence of aggregate limits in policies of this type is an
important and recurring issue.
The declaration pages in the Hartford policies state that the policies
are “composite rated.” The policies do not state what that term means.
The Court of Appeals concluded that the composite rate “is a figure that
combines the advance premiums for bodily injury coverages and property
damage coverages and does not describe how those advance premiums were
calculated.” Id. n.17. In deciding that the property damage liability was
not remuneration rated, the Court of Appeals stated:
If the policies had used a remuneration basis to calculate premiums,
as Dana asserts, then the premiums listed on the coverage pages of the
policies would have been calculated according to the rates set forth
in the “Remuneration” premium basis category. Instead, the advance
premiums were calculated according to rates that were set forth in the
“Sales” basis category and used Dana’s estimated sales to arrive at
the premium amount.

Id. at 1196. We agree that the premium charged for the policy was
apparently based on Dana’s estimated sales. The form shows columns for
calculating premiums for “bodily injury” and “property damage.” The entire
premium is shown in the bodily injury column. The column for the advance
premium on property damage liability coverage states only, “INCL IN
COMPOSITE RATE.” The printed form allows for two types of coverage—“bodily
injury” and “property damage”—and describes four “Rating Classifications,”
one of which is “Premises – Operations,” which has as its “Premium Bases”
“area,” “frontage,” “remuneration,” and “receipts.” “Sales” appears only
as a basis for premiums on “completed operations” and “products,” both of
which are excluded coverages under the policy.[6]
We cannot discern from this record how Dana’s property damage
liability was rated, or even whether it was rated at all, though we suppose
it was. The Court of Appeals and the trial court equate “rated on
remuneration” with calculation of the premium. This is certainly one
common understanding of what it means to “rate” a risk. In the context of
this policy, however, we think an equally plausible reading is that the
reference to “remuneration” rating in the quoted subsection (1) of the
printed form refers to coverages that are identified as rated by
remuneration on the printed portion of the declaration. “Property Damage”
is one of those, and under this reading would be subject to an aggregate
limit. The second view is consistent with extrinsic evidence Dana
designated in opposition to summary judgment regarding the understanding of
Hartford employees and Dana’s insurance broker as to how the Hartford
policies rated Dana’s property damage liability coverage.
Evidence of industry practice is admissible to construe terms of art
or ambiguous agreements. See 2 Lee R. Russ & Thomas F. Segalla, Couch on
Insurance § 22:49 (3d ed. 1995); cf. Abbey Villas Dev. Corp. v. Site
Contractors, Inc., 716 N.E.2d 91, 100 (Ind. Ct. App. 1999). In
oversimplified terms, Dana offered evidence from Hartford and Dana
employees and Dana’s broker that the reference to “premises and operations
rated on a remuneration basis” was understood in the industry to mean the
premises and operations exposure of a manufacturing operation like Dana.
All of these witnesses agreed that the policy was understood to include
aggregate limits. The trial court found no ambiguity in the contract and
disregarded this evidence. Because of the facial ambiguities we have
described, we think Dana’s evidence created a genuine issue of material
fact as to the construction of this document and summary judgment was
improperly granted on this issue.
As a final note on the aggregate limits issue, Hartford complains that
Allstate, as a stranger to the policy, has no business disputing the
understanding of the parties and their broker as to the meaning of the
document. We disagree. Allstate, as an excess carrier, is entitled to
rely on the underlying policies in evaluating its risks. But, similarly,
Allstate is charged with an understanding of common industry practice. Cf.
Martin Rispens & Son v. Hall Farms, Inc., 601 N.E.2d 429, 438 (Ind. Ct.
App. 1992), aff’d in part, rev’d in part on other grounds, 621 N.E.2d 1078
(Ind. 1993) (“[K]nowledge of trade usage must be imputed to those
individuals who undertake business transactions in the industry, be they
industry giants or newcomers.”). How this all shakes out is a matter for
the trier of fact in the first instance. We reverse the trial court’s
award of partial summary judgment to Allstate on this issue.
V. “Triggered” Policies at Old Forge
Allstate contends the trial court erred when it found that only the
1978 policy was triggered by contamination at the Old Forge site. In
Allstate’s view, the 1979 policy was also triggered because Dana’s
contaminants continued causing damage at the site beyond the 1978 policy
period. Dana argues that only the 1978 policy was triggered because the
contamination at Old Forge constituted a single occurrence. On the
surface, the parties’ respective positions may seem counterintuitive. The
insurer is arguing that more than one policy applies and the insured
contends only one policy was triggered. However, Allstate is an excess
carrier whose liability is triggered only after exhaustion of underlying
limits. If Allstate can spread Dana’s Old Forge liabilities out over more
than one policy year it can take advantage of the full amount of the
underlying coverage—from its point of view a deductible—in multiple years.
For the reasons given in Part III, once a covered occurrence takes
place, Allstate is obligated to indemnify Dana for all sums related to that
occurrence up to the policy limits. However, as the Court of Appeals
correctly noted, “the policies do not preclude continuing exposure to
conditions from being an occurrence for the purposes of more than one
policy period.” 737 N.E.2d at 1203. Cf. Eli Lilly & Co. v. Home Ins. Co.,
482 N.E.2d 467, 471 (Ind. 1985) (coverage triggered at any point between
ingestion of DES and the manifestation of DES-related disease). If
contamination caused a covered occurrence in the 1978 policy period, and
continued causing damage in the 1979 policy period, that contamination
would trigger both policies.
The undisputed evidence is that contamination at the Old Forge site
resulted from the dumping of hazardous wastes into a strip mine pit from
August through December 1978. Complaints about the site began in early
1979, and “investigations revealed that most of the drums that were buried
in the pits had broken open and that toxic chemicals had been released into
the soil.” 737 N.E.2d at 1199. Allstate’s expert testified in a
deposition that the contamination continued causing damage into the 1980s.
Id. at 1201. Assuming this is correct, as the Court of Appeals held, it is
sufficient to trigger more than one policy. Allstate’s designated evidence
thus created a genuine issue of material fact precluding summary judgment
in favor of Dana. We reverse the trial court’s grant of summary judgment
on this issue. We agree with Dana, however, that Dana may elect to seek
indemnity from any or all of the policies at risk as to any single
occurrence.
VI. Exhaustion of Underlying Limits for Old Forge Claim
The parties disagree as to when Allstate’s excess coverage attaches
for liabilities incurred at the Old Forge site. Both parties argue this
issue in the framework of the trial court’s and Court of Appeals’ holdings
that Allstate’s 1978 and 1979 policies provided personal injury coverage
and that there is no aggregate limit on Hartford’s property damage
coverage. However, we concluded in Part II that no excess personal injury
coverage applied, and in Part IV that the aggregate limit issue is not ripe
for summary judgment. Our analysis stands on the shoulders of those
holdings.
Allstate contends that Dana must exhaust the underlying Hartford
limits for both property damage and personal injury before making a claim
for excess coverage. Allstate bases this conclusion on three premises,
only the third of which we find persuasive. First, Allstate contends that
both coverages must be exhausted because the 1978 and 1979 Allstate
policies[7] use the plural “limits,” instead of the singular “limit” when
referring to the exhaustion of underlying insurance.[8] We disagree with
this contention because, even if Allstate were correct as to the intended
effect of the word “limits,” its use in this manner is, at least,
ambiguous. It is common for major enterprises such as Dana to have layers
of coverage stacked to provide insurance against risks at escalated levels.
Here there is only one underlying CGL policy, Hartford’s, but the excess
form employed by Allstate presumably is used for higher level policies
which insure above other excess carriers as well as the primary insurer.
Indeed, a number of policies are listed in Allstate’s schedule of
“underlying policies,” each with limits of its own for the various
coverages other than general liability (advertising, workers compensation,
etc.). The “limits of the underlying insurances” can readily be taken to
mean that Allstate is not responsible for coverage until the limits of all
the listed underlying policies covering a particular claim have been
exhausted, but not to imply that more than one limit in the same policy
must be exhausted by the same occurrence. Moreover, one provision of the
policy (Endorsement 8) provides that a reduction in the “limit or limits”
of the “underlying policy or policies” causes the excess policy to drop
down. This seems to assume that a given coverage has only one limit, and
multiple underlying policies produce multiple applicable limits.
Allstate also bases its conclusion on this Court’s statement in Ryder
Truck Lines, Inc. v. Carolina Cas. Ins. Co., 270 Ind. 315, 319, 385 N.E.2d
449, 452 (1979), that “the liability of the insurer under an excess
insurance clause arises only after the limits of the primary policy are
exhausted.” This is, of course, generally a correct statement. However,
we think Ryder means only that Dana must exhaust the underlying coverage
applicable to the losses supporting its excess coverage claim, and does not
resolve the issues presented here.
Finally, Allstate contends that both coverages must be exhausted
because the parties have stipulated that Dana’s liabilities at other sites
are “properly described as both personal injury and property damage
losses.”[9] The trial court took the parties’ stipulation to mean the
underlying coverages for personal injury and property damage were both
available to Dana when Dana sought indemnification for the cleanup costs
incurred at those sites. The trial court then concluded that Dana’s costs
for other environmental liabilities could be allocated to either coverage
for the purpose of determining whether an underlying limit was exhausted.
Although this reasoning could have led the trial court to allocate the
underlying payment to property damage, the trial court allocated Dana’s
losses at other sites to the bodily injury coverage of the Hartford
policies, exhausting that coverage’s underlying aggregate limit. In the
trial court’s view, this resolution mooted the question of whether
Hartford’s limit for property damage is aggregate or per occurrence because
the trial court held exhaustion of either coverage sufficient to reach the
excess policy.
The Court of Appeals disagreed, ruling that “Allstate’s obligation
does not attach until the Hartford policy limits for both personal injury
and property damage have been reached.” 737 N.E.2d at 1205. The issue
turns on what underlying coverage is available to Dana under the Hartford
policy, and whether Dana has incurred covered losses in excess of the
applicable limit or limits of that coverage. Although it is not uncommon
to have both personal injury and property damage coverage for the same
occurrence, we think it unusual that two coverages apply to the same
liability, as the parties stipulated is the case here. We are not faced
with a single event, such as an explosion, that may harm both people and
property and trigger both personal injury and property damage coverage for
different injuries. Rather, the parties have stipulated, correctly or
otherwise, that the same environmental cleanup liability falls under both
underlying coverages. Given that unusual situation, we agree with the
Court of Appeals that both underlying limits must be exhausted. This turns
on the stipulated applicability of both coverages to all liabilities and
would not typically be the case where different liabilities are incurred as
a result of the same occurrence.
The remaining question is at what point the underlying policies are
exhausted. This issue turns on the resolution of the aggregate limits
issue described in Part IV. If there is an aggregate limit on Hartford’s
property damage coverage, it is separate from the personal injury aggregate
limit and, therefore, Dana must incur $2 million in environmental
liabilities for occurrences during the policy period before liability for
both $1 million in property damage and $1 million in personal injury are
incurred and Allstate’s coverage attaches.[10] If there is a per
occurrence limit on Hartford’s property damage coverage, then Dana must
have incurred $1 million in liability at the Old Forge site alone, in
addition to another $1 million in liability at all sites for occurrences
during the policy period, before Allstate’s coverage attaches.
In sum, we hold that, because Dana and Allstate have stipulated that
Dana’s environmental liabilities are insured under both the property damage
and the bodily injury coverage of Hartford’s policy, Dana must exhaust both
underlying coverages before seeking excess coverage from Allstate. Because
the point at which Allstate’s coverage attaches ultimately turns on whether
Hartford’s underlying limit is an aggregate or per occurrence limit, see
Part IV, the trial court’s summary judgment as to Allstate’s coverage
obligation for the Old Forge site is reversed.
Mootness
After this appeal had been briefed and this opinion substantially
completed, the parties advised this Court that they had settled and
requested that the appeal be dismissed. However, because we disagree with
the Court of Appeals’ resolution of some issues that we believe likely to
recur, we concluded to publish this opinion in the interest of guiding
similarly situated parties in the future. Cf. In re Lawrance, 579 N.E.2d
32, 37 (Ind. 1991).
Conclusion
We affirm in part, reverse in part, and remand to the trial court to
enter such orders of dismissal as may be warranted by the settlement
agreement, or to take other action consistent with this opinion. As to all
other issues, the Court of Appeals is summarily affirmed. Ind. Appellate
Rule 58(A)(2).

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ. concur.
RUCKER, J., concurs except as to Part II-B, as to which he concurs in
result.
-----------------------
[1] Dana’s policies were issued for annual periods beginning June 1 of each
year. We refer to the policy for June 1, 1977 through May 31, 1978 as the
1977 policy.
[2] After the first appeal, Dana moved for partial summary judgment against
Allstate on issues similar to those already decided by the trial court as
to the primary insurers. In addressing Dana’s motions, the trial court
determined it was not bound by the earlier rulings, but agreed with their
conclusions. The Court of Appeals referred to these rulings as disposing
of motions for reconsideration of earlier rulings. For simplicity, we
treat them as original motions. The record in this appeal begins with
Dana’s motions against Allstate.
[3] The 1977, 1978 and 1979 policies provide the following coverage grant:
I. Coverage
The Company hereby agrees, subject to the limitations, terms and
conditions hereinafter mentioned, to indemnify the insured for all
sums which the insured shall be obligated to pay by reason of the
liability
A. imposed upon the Insured by law, or
B. assumed under contract or agreement by the Named Insured,
for damages on account of
A. Personal Injuries
B. Property Damage
C. Advertising Liability,
caused by or arising out of each Occurrence happening anywhere in the
world.

The 1980 and 1981 policies provide:
A. Coverage:
To indemnify the INSURED for the ULTIMATE NET LOSS, in excess of the
greater of the RETAINED LIMIT, or UNDERLYING LIMIT, for all sums which
the INSURED shall be obligated to pay by reason of the liability
imposed upon the INSURED by law or liability assumed by the INSURED
under contract or agreement for damages and expenses, because of:
(1) PERSONAL INJURY,
(2) PROPERTY DAMAGE, or
(3) ADVERTISING LIABILITY
to which this policy applies, caused by an OCCURRENCE, happening
anywhere in the world.
[4] Some courts find the exclusion bars coverage when the contamination is
solely on the insured’s land, but do find coverage when there is a “threat
of harm” to a third party property interest. See, e.g., Boardman
Petroleum, Inc. v. Federated Mut. Ins. Co., 498 S.E.2d 492, 495-96 (Ga.
1998); Arco Indus. Corp. v. Am. Motorists Ins. Co., 594 N.W.2d 61, 67
(Mich. Ct. App. 1998). Others find the exclusion bars coverage for cleanup
unless the contamination has leached onto another’s land. See, e.g.,
Gerrish Corp. v. Universal Underwriters Ins. Co., 947 F.2d 1023, 1030-31
(2d Cir. 1991) (applying Vermont law); Hakim v. Mass. Insurers’ Insolvency
Fund, 675 N.E.2d 1161, 1164-66 (Mass. 1997); New Jersey v. Signo Trading
Int’l, Inc., 612 A.2d 932, 938-39 (N.J. 1992).
[5] We note that the legislature has placed further restraints on the use
of groundwater. See Ind. Code 14-25-3 (1998). Though these regulations
demonstrate the “public policy of the state . . . to conserve and protect
the ground water resources of Indiana and for the most beneficial use and
disposition of ground water resources,” id. § 14-25-3-3, we do not view
them as having altered the common law property status of ground water.
[6] Beneath the words “Composite Rated” and “General Liability” are the
words “Excluding Products/CO.”
[7] There is no contention by either party that the 1980 or 1981 Allstate
policy is in dispute as to the Old Forge site.
[8] The 1978 and 1979 policies state:
II. LIMIT OF LIABILITY
The Company shall only be liable for the Ultimate Net Loss in excess
of either
A. the limits of the underlying insurances as set out in the
attached SCHEDULE OF UNDERLYING POLICIES in respect of each
Occurrence covered by said underlying insurances . . . .

Endorsement No. 8 in the 1978 policy, as well as Endorsement No. 6 in the
1979 policy, states:
In consideration of the premium charged, it is agreed that this policy
is amended as indicated:
In the event of reduction or exhaustion of the aggregate limit or
limits designated in the underlying policy or policies solely by
payment of losses in respect to accidents or occurrences during the
period of such underlying policy or policies, it is hereby understood
and agreed that such insurance as is afforded by this policy shall
apply in excess of the reduced underlying limit or, if such limit is
exhausted, shall apply as underlying insurance, notwithstanding
anything to the contrary in the terms and conditions of this policy,
but this Endorsement shall only apply to underlying policies listed in
the original schedule of underlying policies of this contract.
[9] The trial court described the parties’ stipulation as follows:
3. At the hearing in chambers, counsel for [Allstate] further
stipulated that . . . Dana incurred Ultimate Net Loss in excess of $1
million for Occurrences other than [the] Old Forge landfill claim in
both of the 78/79 and 79/80 policy years. . . . Counsel for
[Allstate] further stipulated—without waiving [Allstate’s] right to
appeal the finding of the applicability of personal injury coverage to
environmental losses and without waiving the assertion [Allstate] made
in briefing that Dana had to exhaust both the personal injury
aggregate limit and the property damage per occurrence limit for any
claim against the [Allstate] policy—that [Dana’s other environmental
cleanup costs] are properly described as both personal injury and
property damage losses.

Though the trial court describes this as a stipulation by Allstate, Dana,
in its briefs, tells us that both parties agreed to it.
[10] A determination of whether Hartford’s settlement was actually paid as
bodily injury or property damage coverage, or both, is unnecessary.
Allstate’s coverage attaches as soon as liabilities are incurred in the
amount of the underlying Hartford limits for the applicable coverages.
Whether Dana’s settlement with Hartford actually exhausted the underlying
limits is also irrelevant; if it did not, then Dana is self-insured up to
the applicable limits.