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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-4845
FIGGIE INTERNATIONAL, INC.,
Plaintiff-Appellant,
versus
FRED W. BAILEY, JAMES UPFIELD,
TRAVELERS INS. CO., and INSURANCE
CO. OF NORTH AMERICA,
Defendants-Appellees.
Appeals from the United States District Court
for the Western District of Louisiana
(June 29, 1994)
Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Figgie International, Inc. ("Figgie")
appeals the summary judgment dismissal of Defendants-Appellees
Travelers Insurance Company ("Travelers") and Insurance Company of
North America ("INA")))collectively, "the insurers"))from an action
brought to recover the costs of a remedial action undertaken on
property that Figgie formerly owned. Figgie also appeals the
summary judgment dismissal of the claims it asserted against
Defendants-Appellees Fred W. Bailey and James Upfield purportedly

grounded in the Louisiana Environmental Quality Act ("LEQA").1
Concluding for the reasons hereinafter explained that the district
court's dismissals were proper, we affirm.
I
FACTS AND PROCEEDINGS
In October 1965, Baifield Industries, Inc. ("Baifield")
acquired property in Caddo Parish, Louisiana (hereafter, "the
Figgie property") upon which it built two manufacturing
facilities))a bomb-fin plant and a shell-casing plant. In June
1967, Baifield sold the property to Figgie which continued to
operate the plants until 1969. In September 1969, Figgie sold the
property to Norris Industries ("Norris"), agreeing as part of the
sales contract to indemnify Norris for "all damages arising out of
the prior conduct of [Figgie's] business."2 During the period that
it owned the property, Figgie was covered by a number of
comprehensive general liability ("CGL") policies issued by the
insurers.
As a byproduct of Baifield and Figgie's manufacturing
activities, liquid wastes containing hazardous substances were
generated. Following chemical treatment, these liquid wastes were
discharged into two sedimentation ponds located on the Figgie
property. In the mid-1980s, the Louisiana Department of
Environmental Quality ("LDEQ") determined that hazardous substances
1Codified at LA. REV. STAT. ANN. 30:2001-2503 (West 1989 &
Supp. 1993).
2Norris did not conduct any manufacturing activities on the
property.
2

had been discharged or disposed of on the Figgie property. In
1986, pursuant to its authority under the LEQA, the LDEQ made
written demand on Norris to undertake remedial action on the Figgie
property. Norris promptly notified Figgie of the LDEQ's
remediation demand, but initially undertook the remedial action on
its own.
The remedial action proceeded in two stages. During the first
stage, soil and sediment was removed from a concrete trench that
had been used to convey the liquid waste from the manufacturing
facilities to the chemical-treatment area. In addition, soil was
excavated from the area around an inactive incinerator where
chemicals had been stored.3 In the second stage, the chemical-
treatment area, an additional portion of the concrete trench, and
the two sedimentation ponds were subjected to remediation. That
remedial action consisted of draining the ponds and excavating the
mixture of soil and sludge that had accumulated on the bottom.
This soil/sludge mixture was determined to be contaminated with
cadmium, a hazardous substance, and then was transported to a
disposal facility. Neither Norris nor the LDEQ conducted any
groundwater testing in connection with the remedial action.
Following completion of the first stage, and in response to a
request by Norris, the LDEQ made written demand on Figgie to
undertake remedial action on the Figgie property. Figgie promptly
3It appears that the contamination associated with the
trench and the incinerator was localized. At least, Figgie does
not contend that the contaminants in these areas have caused harm
or were a threat to groundwater or off-site property.
3

notified the insurers of the LDEQ's remediation demand. Figgie
then collaborated with Norris in the second stage of the remedial
action, agreeing to share the costs. In October 1989, following
completion of the remedial action, Norris brought suit against
Figgie, seeking reimbursement for its full remediation costs.
Figgie notified the insurers of Norris' lawsuit and requested that
the insurers assume its defense. Both insurers declined, asserting
that Norris' claims were not covered by their respective policies.
Eventually, Figgie and Norris settled, with Figgie agreeing to
reimburse Norris for its full remediation costs and promising to
pay for future remediation of the Figgie property.
In August 1990, Figgie made written demand on Bailey and
Upfield))who were shareholders, officers, and directors of Baifield
at the time that it owned the property))for reimbursement of the
money that Figgie had paid to Norris. Three days later, Figgie
filed the instant suit against Bailey, Upfield, and the insurers.
Figgie alleged causes of action against Bailey and Upfield pursuant
to the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA")4 and the LEQA. In addition, Figgie
alleged that the insurers were obligated under their CGL policies
to indemnify Figgie for the remediation costs it incurred.
Bailey and Upfield moved for partial summary judgment, seeking
dismissal of the LEQA claims on the ground that the LEQA did not
authorize a private action against them. The insurers also moved
for summary judgment, seeking dismissal of Figgie's claims against
4Codified at 42 U.S.C. �� 9601-9675 (1988).
4

them on the ground that their policies excluded coverage of
Figgie's remediation costs. The district court referred the
summary judgment motions to a magistrate judge who set September
1991 as the deadline for summary judgment briefing. Following
expiration of the deadline, the magistrate judge exercised his
discretion and admitted numerous additional affidavits and
memoranda. After reviewing all the summary judgment submissions,
the magistrate judge recommended that summary judgments be granted,
dismissing the LEQA claims against Bailey and Upfield, and
dismissing all claims against the insurers.
Figgie timely objected to the magistrate judge's report and
recommendations. In addition, Figgie sought leave of the district
judge to file an additional affidavit in opposition to summary
judgment, but the district judge declined to admit the additional
affidavit. Adopting the magistrate judge's report and
recommendations, the district judge granted summary judgment in
favor of the insurers and dismissed the LEQA claims against Bailey
and Upfield. As other claims against Bailey and Upfield remained
pending, final judgment was entered pursuant to Fed. R. Civ. P.
54(b), and Figgie timely appealed.
II
ANALYSIS
A.
STANDARD OF REVIEW
The grant of a motion for summary judgment is reviewed de
5

novo, using the same criteria employed by the district court.5
Summary judgment is proper if "there is no genuine issue as to any
material fact" and the movant "is entitled to judgment as a matter
of law."6 When a properly supported motion for summary judgment is
made, the adverse party may not rest upon the mere allegations or
denials of its pleadings, but must set forth specific facts showing
that there is a genuine issue for trial to avoid the granting of
the motion for summary judgment.7
B.
BAILEY AND UPFIELD
Figgie's LEQA claims were dismissed by the district court when
it concluded that LEQA did not provide a cause of action against
Upfield and Bailey. We agree with that conclusion. LEQA provides
that when a determination is made that "a discharge or disposal of
a hazardous substance has occurred or is about to occur which may
present an imminent and substantial endangerment to health or the
environment," the LDEQ secretary shall make written demand on all
responsible persons to undertake remedial action in accordance with
a plan approved by the LDEQ secretary.8 Further, if making written
demand upon all the responsible persons is not feasible, the LDEQ
secretary "may limit his demand to those persons he deems most
5United States Fidelity & Guar. Co. v. Wigginton, 964 F.2d
487, 489 (5th Cir. 1992); Walker v. Sears, Roebuck & Co., 853
F.2d 355, 358 (5th Cir. 1988).
6FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S. Ct. 2548, 2552-54, 91 L. Ed. 2d 265 (1986).
7FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986).
8LA. REV. STAT. ANN. 30:2275(A) (West 1989).
6

responsible."9 At the time that Figgie filed suit, LEQA provided
that parties who had complied with the LDEQ secretary's written
demand, i.e., the "participating parties,"10 could bring suit
against "any other nonparticipating party who shall be liable for
twice their portion of the remedial costs."11 LEQA defines a
"nonparticipating party" as "a person who refuses to comply with
the demand of the secretary, or fails to respond to the demand, or
against whom a suit has been filed by the secretary."12 By the
plain terms of the statute, then, LEQA authorizes a suit by one
responsible party against another responsible party only if the
LDEQ secretary has made written demand upon the latter party to
undertake remedial action or if the LDEQ secretary has filed suit
against that party. As it is undisputed that the LDEQ secretary
neither made written demand on Bailey or Upfield, nor filed suit
against them, summary dismissal of Figgie's LEQA claims was
appropriate.13
9Id. 30:2275(D).
10A "participating party" is defined as "a person who
undertakes remedial action after receiving a demand from the
secretary in compliance with the demand and as approved by the
secretary." Id. 30:2272(7).
11Id. 30:2276(G).
12Id. 30:2272(6).
13Figgie suggests that the written demand requirement has
been eliminated by recent amendments to the LEQA. Specifically,
Figgie points to LA. REV. STAT. ANN. 30:2276(G)(3) (West Supp.
1993), which provides, in part, "An action by a person other than
the secretary shall not be barred by the failure of the secretary
to demand participation in the remediation." We do not consider
whether the amended statute would authorize suit under the
circumstances presented by this appeal, and if so, whether the
7

C.
THE INSURERS
At issue in this appeal is the extent of coverage, if any, of
the cost of Figgie's remediation actions provided under the CGL
policies issued by Travelers or INA. With minor variations, these
CGL policies provide coverage for all sums Figgie becomes "legally
obligated to pay as damages because of . . . property damage to
which [the] insurance applies."14 All of the policies include
"owned-property" exclusions which provide, with minor variations,
that the policies do not apply "to property damage to . . .
property owned . . . by the insured." Complementing those
provisions are additional provisions, found in all of the policies,
that are referred to as "alienated-property" exclusions. With
minor variations, these exclusions specify that the policies do not
apply "to property damage to premises alienated by the named
insured."
The insurers argue that they are under no obligation to
indemnify Figgie for its remediation costs because (1) the remedial
action was performed exclusively on property formerly owned by
Figgie and (2) no third party has made a claim for damages.
amendment would apply retroactively to Figgie's suit. Even if we
were to answer these questions in the affirmative, Figgie's
action still would be barred. LA. REV. STAT. ANN. 30:2276(G)(3)
(West Supp. 1993) (emphasis added) provides, "Such action shall
be barred if the plaintiff does not make written demand on the
defendant . . . at least sixty days prior to initiation of suit
based on the cause of action provided in this Subsection." As
Figgie gave less than sixty days notice, its LEQA claim would be
barred even under the amended language.
14The policies define property damage as "injury to or
destruction of tangible property."
8

Therefore, the insurers reason, Figgie's remediation costs are
excluded from coverage by either the owned-property or the
alienated-property exclusions. Figgie counters by arguing that its
remediation costs are not thus excluded from coverage because the
groundwater within the site suffered actual contamination))and the
state owns the groundwater. Therefore, concludes Figgie,
groundwater contamination does not come under the owned- or
alienated-property exclusions. Alternatively, Figgie posits that
even a threat of contamination of third-party property, including
the state's groundwater, defeats the owned- or alienated-property
exclusions, thereby allowing Figgie to recover from the insurers
the costs of eliminating or mitigating such a threat. We address
Figgie's alternative theories in turn.
1.
Actual Groundwater Contamination
The insurers concede that the owned- or alienated-property
exclusions do not exclude from coverage any costs associated with
the clean up of contaminated third-party property. The insurers
contend, however, that there is no competent summary judgment
evidence that third-party property has been contaminated. In
response, Figgie does not argue that contaminants have migrated
beyond the property line; rather, Figgie argues that contaminants
on the Figgie property have contaminated the groundwater within the
property and that groundwater constitutes third-party property
because it belongs to the state. Although the ownership of
groundwater is not clearly established under Louisiana law, we need
not resolve this issue here because, as urged by the insurers,
9

Figgie has failed to provide competent summary judgment evidence of
actual groundwater contamination.15 At most, Figgie's summary
judgment evidence suggests mere contact of cadmium with
groundwater, but provides no basis to conclude that the cadmium was
capable of leaching, i.e., dissolving, into the groundwater, as is
required to contaminate it.
Indeed, the summary judgment record does not reflect that
groundwater within the Figgie property has even been tested.16
Rather, to establish actual groundwater contamination, Figgie
relies on evidence of contact between the groundwater and cadmium
on the Figgie property.17 Figgie urges that actual groundwater
15In Gregory v. Tennessee Gas Pipeline Co., 948 F.2d 203,
207 (5th Cir. 1991), we declined to resolve the question whether
the State of Louisiana owns waters above and below real property.
A number of courts, however, have held that states have an
ownership interest in groundwater. E.g., Intel Corp. v. Hartford
Acc. & Indem. Co., 952 F.2d 1551, 1565 (9th Cir. 1991) (applying
California law). Likewise, some courts treat groundwater as a
fugitive mineral which is owned by no one until capture. E.g.,
Claussen v. Aetna Cas. & Sur. Co., 754 F. Supp. 1576, 1580 (S.D.
Ga. 1990). But see Gamer v. Town of Milton, 195 N.E.2d 65, 67
(Mass. 1964) ("[L]andowner has absolute ownership in the
subsurface percolating water in his land."). At least one
Louisiana court has treated groundwater as a fugitive mineral.
See Adams v. Grigsby, 152 So. 2d 619, 622-624 (La. Ct. App.),
cert. denied, 153 So. 2d 880 (La. 1963).
16The LDEQ apparently concluded that the cadmium had not
come into contact with the groundwater and, therefore, did not
conduct groundwater testing.
17Figgie provides three pieces of summary judgment evidence,
the admissibility and significance of which are in some dispute,
which it insists create a genuine issue whether the cadmium in
the excavated soil/sludge mixture was in contact with the
groundwater. First, Figgie relies on a letter from Philip Simon,
a consultant for Norris, which stated in relation to the
sedimentation ponds:
While low level residuals remain after the excavation,
I believe the only environmentally significant
10

contamination can be inferred from such contact. Such an inference
is proper, however, only if evidence is proffered that the cadmium
on the Figgie property was in a condition that rendered it capable
of leaching into the groundwater and was thereby capable of causing
actual groundwater contamination. Thus, even granting arguendo
that there is a genuine factual issue whether cadmium has made
contact with the Figgie property groundwater, Figgie's failure to
submit any evidence that the cadmium on the Figgie property was in
a leachable state makes summary judgment appropriate here. Absent
competent summary judgment evidence of leachability, Figgie failed
to carry its burden of showing the presence of a genuine issue of
material fact on contamination.
In support of their summary judgment motion, the insurers
submitted the affidavit of their expert, Stephen Steimle, which
stated,
[T]here is no evidence in the record that cadmium or
other heavy metals at the Site would find their way into
the groundwater. This could not occur unless the metal
in question was in such a condition that it could leach
into the ground waters and surface waters. Such a
determination could only be made if Figgie or the DEQ had
made an appropriate test, such as a Toxic Characteristic
Leaching Procedure ("TCLP"). Only if it were established
that the metal was in a "leachable" state, and a
significant concentration, could one conclude that there
was potential for groundwater contamination.
contaminant left in the underlying soils is cadmium in
the lower lagoon. There is no simple remedy for this
cadmium contamination since the lower lagoon has
apparently already been excavated into the water table.
Second, Figgie relies on John Halk's affidavit in which he stated
that after excavating the soil/sludge mixture from the ponds,
groundwater was observed seeping into the bottom of the ponds.
Third, Figgie relies on Michael Herries' opinion that the ponds
were recharging the upper aquifer.
11

This affidavit served to establish the absence of a genuine issue
whether the cadmium was in a leachable state, and Figgie was
required to "set forth specific facts showing that there is a
genuine issue for trial."18
In response, Figgie's expert, Michael Herries, conceded, at
least inferentially, that groundwater contamination could occur
only if the cadmium was in a leachable state. And Figgie did not
submit or point to any evidence in the record suggesting that the
cadmium on the Figgie property was in such a state. Rather, Figgie
relied on Herries' supplemental affidavit which stated, with
respect to a neighboring property, that "cadmium concentrations
were noted which indicate the presence of dissolved (leachable)
cadmium, in the groundwater." This statement was based on the
results of testing done on a neighboring property,19 which had
undergone extensive remediation, including groundwater remediation.
The fact that groundwater underlying a neighboring property may be
contaminated with cadmium, indicating that it had been in contact
with leachable cadmium, does not constitute competent evidence that
the cadmium on the Figgie property was in a leachable state.20
18See FED. R. CIV. P. 56(e).
19The neighboring property formerly had been owned by Figgie
and had been used to conduct part of Figgie's manufacturing
activities. After Figgie sold the property, the buyer continued
using the property for manufacturing and generated industrial
waste which was disposed of on-site.
20Herries does state in his affidavit, "Due to the close
proximity of the CEH investigation [of the neighboring property]
to the [Figgie property] there is the potential that [the
groundwater] contamination emanated from the [Figgie property]
and may not be restricted to only the [neighboring property]."
12

As Figgie failed to produce competent summary judgment
evidence that the cadmium on the Figgie property was in a leachable
state, Figgie has failed to show that there is a genuine issue
whether cadmium on the Figgie property was capable of leaching into
the groundwater. Absent competent evidence that the cadmium was in
a leachable state, there is no basis upon which a fact finder could
infer that groundwater contamination occurred or was likely to
occur absent the remedial action.21
This statement is highly speculative as its only basis is the
proximity of the two properties. As such, it does not provide
competent evidence that the groundwater contamination associated
with the neighboring property originated from the Figgie
Property. Furthermore, Herries' statement is contradicted by his
previous affidavit in which he concluded that the groundwater
flowed from west to east; however, the spatial relationship of
the neighboring property and the Figgie property is north to
south. As such, the statement does not provide sufficient
evidence for a reasonable jury to find that the groundwater
contamination associated with the neighboring property was caused
by contact with cadmium on the Figgie property. See Anderson v.
liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91
L. Ed. 2d 202 (1986).
21Figgie argues that the district court abused its
discretion by declining to admit a "clarifying" affidavit that,
Figgie contends, establishes that the cadmium was capable of
leaching into the groundwater. We find no error in the district
court's refusal to admit the affidavit; Figgie made no attempt to
file the affidavit within the time limit imposed by the
magistrate judge. Rather, Figgie waited over one year after the
deadline had passed and almost two months after the magistrate
had issued his report and recommendation before seeking leave
from the district judge to admit the affidavit. Absent
"excusable neglect," a district court does not abuse its
discretion by declining to admit an out-of-time affidavit. Lujan
v. National Wildlife Fed'n, 497 U.S. 871, 895-98, 110 S. Ct.
3177, 3192-93, 111 L. Ed. 2d 695 (1990); Farina v. Mission Inv.
Trust, 615 F.2d 1068, 1076 (5th Cir. 1980). Neither is this
court empowered, as Figgie suggests, to enlarge the summary
judgment record on appeal with affidavits that were properly
excluded by the district court. See Lujan, 497 U.S. at 895-98.
13

2.
Threat of Harm to Third-Party Property
Figgie contends alternatively that the cadmium on its property
presented a threat to third-party property; specifically, the
Figgie property groundwater. Figgie argues further that the costs
incurred to eliminate or to mitigate a threat to third-party
property are not excluded by the owned- or alienated-property
exclusions. Whether such costs fall within the owned- or
alienated-property exclusions has not been addressed by the
Louisiana courts. The issue has been resolved, with differing
conclusions, however, in a number of other jurisdictions.
In State v. Signo Trading International, Inc.,22 the New Jersey
Supreme Court held that a CGL policy containing an owned-property
exclusion similar to the one in the instant case did not provide
coverage for the costs of abating threatened harm to third-party
property.23 The court reasoned that, in the absence of "physical
injury to or destruction of tangible property" of a third-party,
the owned-property exclusion by its plain terms operated to deny
coverage for the costs "incurred to alleviate damage to the
insured's own property and not to the property of a third-party,"
even if future harm to third-party property was thereby abated.24
The court recognized, however, that if there had been actual injury
22612 A.2d 932 (N.J. 1992).
23Id. at 939.
24Id. at 938; accord Bausch & Lomb Inc. v. Utica Mut. Ins.
Co., 625 A.2d 1021, 1033-36 (Md. 1993) (holding, under Maryland
law, that actual damage is required to third-party property to
defeat owned-property exclusion).
14

to third-party property, the "cost of measures intended to prevent
imminent or immediate future damage" to that property would not be
excluded from coverage.25
A contrary conclusion was reached in Intel Corp. v. Hartford
Accident & Indemnity Co.,26 in which the Ninth Circuit applied
California law to a similar owned-property exclusion. That court
held that the owned-property exclusion did "not bar coverage of the
costs of preventing future harm to ground water or adjacent
property that might arise from contamination that has already taken
place, whether such contamination has occurred on [the insured's]
property or others' property."27 In arriving at this conclusion,
the court reasoned that "where an insured is covered for damage to
a third party's property, that insured would reasonably expect
coverage for efforts to mitigate that damage, even when the source
of the hazard is on the insured's own property."28 Nevertheless,
the Intel Corp. court emphasized that, as a factual matter,
coverage extended only to the costs incurred either to remedy
25Id. at 939.
26952 F.2d 1551 (9th Cir. 1991).
27Id. at 1565 (emphasis added).
28Id. at 1565-66 (citing AIU Ins. Co. v. FMC Corp., 799 P.2d
1253, 1272 (Cal. 1990) (construing the term "damages" in a CGL
policy as it relates to government-mandated cleanup costs));
accord Savoy Medical Supply Co. v. F & H Mfg. Corp., 776 F.
Supp. 703, 708-09 (E.D.N.Y. 1991) (applying New York law);
Uniguard Mut. Ins. Co. v. McCarty's Inc., 756 F. Supp. 1366,
1368-69 (D. Idaho 1988) (applying Idaho law); Allstate Ins. Co.
v. Quinn Constr. Co., 713 F. Supp. 35, 38-39 (D. Mass. 1989)
(applying Massachusetts law); Jones Truck Lines v. Transport Ins.
Co., No. 88-5723, 1989 WL 49517 (E.D. Pa. May 10, 1989) (applying
Missouri law).
15

existing damage or to prevent future damage to third-party
property; whereas costs incurred solely to remedy damage to the
insured's property were not covered.29 Likewise, in Savoy Medical
Supply Co. v. F & H Manufacturing Corp.,30 a federal district court
in New York held that an alienated-property exclusion did not
defeat coverage when there was a threat of contamination to third-
party property.31
As this brief and non-exhaustive review of the case law
reveals, there is little consensus on the application of the owned-
or alienated-property exclusions in cases involving mere threats of
contamination to property. In the instant case, however, we need
not and therefore do not attempt to resolve the question whether
under Louisiana law such exclusions would preclude coverage for
measures taken to eliminate or to mitigate a threat to third-party
29Intel Corp., 952 F.2d at 1566. The Seventh Circuit
adopted a third view of "owned property" exclusions in Patz v.
St. Paul Fire & Marine Ins. Co., 15 F.3d 699 (7th Cir. 1994). In
Patz, the insureds sought to recover from their insurers clean up
costs that were incurred because the state ordered the insureds
to remedy soil and groundwater contamination on their property.
The court held that the owned-property exclusion was inapplicable
because, as the court characterized the suit, the insureds were
"not seeking to recover for damage to their property," but
rather, they were seeking "to recover the cost of the liability
that the [state] imposed on them for maintaining a nuisance."
Id. at 705. Thus, the court found it unnecessary to determine
the ownership of groundwater or the magnitude of the risk to
groundwater or to off-site property. Id. Figgie does not argue
that it is entitled to relief under a "nuisance" theory,
therefore, we do not consider whether Louisiana law would allow
insureds to avoid application of the owned-property exclusions
under a "nuisance" theory.
30776 F. Supp. 703 (E.D.N.Y. 1991).
31Accord Uniguard Mut. Ins. Co., 756 F. Supp. at 1369-70.
16

property. Even if we assume that (1) groundwater is third-party
property and (2) coverage is not precluded in such circumstances,
Figgie still would not be entitled to relief; it has failed to
produce summary judgment evidence that the cadmium on the Figgie
property presented a threat to the groundwater or to off-site
property.
As discussed above, Figgie has, at most, created a genuine
issue whether there was contact between the cadmium and the
groundwater. It has failed, however, to introduce any competent
evidence that the cadmium on the Figgie property was capable of
leaching into the groundwater. Absent evidence of such capability,
there is no basis upon which to conclude that a real threat
existed. Given the dearth of summary judgment evidence to create
a genuine issue whether there was a threat, or even the possibility
of a threat, summary dismissal of Figgie's claims against the
insurers was appropriate.
III
CONCLUSION
As Figgie concedes, the LDEQ secretary never made written
demand on Bailey or Upfield to undertake remedial action, so Figgie
is precluded as a matter of law from bringing a claim pursuant to
La. Rev. Stat. Ann. 30:2276(G) to recover its remediation costs
from Bailey and Upfield. Likewise, as there is no competent
summary judgment evidence that third-party property has been
harmed, or has even been threatened with harm, Figgie incurred
remediation costs solely for damage to property formerly owned by
it. Therefore, the insurers are under no duty to indemnify Figgie
for its remediation costs. For the foregoing reasons, the district
17

court's summary judgments are
AFFIRMED.
18