The Narragansett Electric Company v. American Home Assurance Company et al
| The Narragansett Electric Company |
| American Home Assurance Company, Century Indemnity Company, Dominion Insurance Company Ltd., Equitas Insurance Company LTD, Excess Insurance Company Ltd., National Casualty Company, The London & Edinburgh Insurance Company LTD and World Auxiliary Insurance Corp. Ltd. |
| 1:2011cv08299 |
| November 16, 2011 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| P. Kevin Castel |
| Insurance |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
124
MEMORANDUM AND ORDER: Despite the breadth of Century's arguments and the volume of its briefing, the issue of Century's duty to defend comes down to a few simple propositions. Its insured was named in the Commonwealth's 1987 Complaint which alleged liability from releases of hazardous material from the Mendon Road Site, which had been deposited by the insured's contractor. The Commonwealth, and not the insured, determined the scope of the claim which is then to be measured ag ainst the policy and its exclusion. The Commonwealth sought to impose CERCLA liability on the insured because "[w]hile conducting excavation on Lot 1 C in or about 1984, Maurice C. Brunelle caused hazardous chemicals to be released to the enviro nment." (Commonwealth Compl.l38.) A fair reading is that it alleges a release that is temporally "sudden" in that it occurred at a fixed point in 1984 and "accidental" in the sense that it was an unexpected and unintentional consequence of excavation occurring outside the insured's regular business activities and the Site's function as a sand and gravel pit. According to the Commonwealth, the hazardous material included ferric ferrocynanide which, when it " ;comes in contact with air, sunlight and/or an acidic environment, toxic hydrogen cyanide gases are formed." (Id. 27.) When the insured sought coverage for the defense of this action, it became the insurer's duty to provide the costs of tha t defense. Consistent with its obligation to the insured, it would have been appropriate to learn more about the cause and effect of the alleged 1984 release during the course of pretrial discovery in the Commonwealth Action. Perhaps the information would have supported one or more of the propositions that Century now advances. Instead, Century sat on the sidelines and the Commonwealth suit has ended. Century now owes Narragansett the costs of the defense. The motion for reconsideration (Docket No. 112) is DENIED. The motion for certification pursuant to 28 U.S.C. § 1292(b) is also DENIED. SO ORDERED. (Signed by Judge P. Kevin Castel on 4/1/2013) (rsh)
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