Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-11177
SNYDERGENERAL CORP.,
Plaintiff-Appellant,
versus
CENTURY INDEMNITY CO.,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
May 19, 1997
Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
In this insurance coverage dispute, SnyderGeneral Corporation appeals an
adverse summary judgment in favor of its insurer, Century Indemnity Company.
Concluding that environmental cleanup costs qualify as damages under the
applicable insurance policy, we affirm in part and vacate in part the district court's
grant of summary judgment, and remand for further proceedings consistent
herewith.
BACKGROUND
In 1982 SnyderGeneral purchased the assets of the Climate Control Division
of The Singer Company. Included in this purchase was a manufacturing facility

located in Wilmington, North Carolina. SnyderGeneral manufactured air
conditioning and heating equipment at the Wilmington facility from 1982 until it
sold the facility in 1988.1 The manufacturing process required the use of the
industrial degreasing solvent trichloroethane ("TCA") and thousands of gallons of
groundwater.
In 1983 approximately 500 gallons of TCA spilled from an above-ground
storage tank at the Wilmington facility. SnyderGeneral reported the spill to North
Carolina environmental authorities and cleaned it up to their satisfaction. In 1988
an investigation revealed the presence of additional TCA in the groundwater at the
Wilmington facility. SnyderGeneral undertook the task of cleaning up the
contamination and, to date, has spent approximately $2,000,000 toward that goal.
At the time of the 1983 spill, SnyderGeneral had two comprehensive general
liability insurance policies. The first, with Commercial Union Insurance Company,
provided $300,000 of primary coverage. The second, with Century Indemnity
Company, provided umbrella coverage up to $25,000,000. When the additional
TCA contamination was discovered in 1988, SnyderGeneral notified both insurance
companies of its claim for reimbursement for its expenses in conjunction with the
TCA contamination. Specifically, SynderGeneral called upon Century to pay the
expenses it had incurred in excess of its primary insurance. Century denied
coverage and SnyderGeneral filed suit in Texas state court alleging breach of
1SnyderGeneral sold the Wilmington facility to Heatcraft, Inc., which declined to
assume liability for the costs of investigating and cleaning up environmental
contamination at the facility. SnyderGeneral retained responsibility for that liability.
2

contract and of the duty of good faith and fair dealing in violation of the Texas
Insurance Code.

Century removed the case to federal court and moved for summary judgment
on the grounds that either the pollution exclusion clause or the care, custody or
control exclusion clause in its policy precluded recovery by SnyderGeneral or, in
the alternative, that environmental cleanup costs did not constitute damages under
the policy. The district court denied Century summary judgment on the first two
grounds but granted it on the third. The court concluded that environmental
cleanup costs resemble restitution or reimbursement and are not compensation for
a traditional legal injury; therefore, such costs did not qualify as damages under
Century's policy. Century, therefore, was deemed justified in refusing to reimburse
SnyderGeneral for the expenses it had incurred in cleaning up the TCA
contamination at the Wilmington facility. SnyderGeneral timely appealed.
ANALYSIS
We review a district court's grant of summary judgment de novo, applying
the same standards as those applied by the district court.2 Federal Rule of Civil
Procedure 56(c) provides that summary judgment is appropriate only when the
"pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law."
1. Damages
The Century policy provides indemnity for:
2Duhon v. Mobil Oil Corp., 12 F.3d 55 (5th Cir. 1994).
3

all sums which [SnyderGeneral] shall be obligated to pay by reason of
liability. . .imposed upon [SnyderGeneral] by law. . .for damages. . .on
account of. . .property damage. . .caused by or arising out of an
occurrence occurring anywhere in the world. (Emphasis added.)
Century contended, and the district court agreed, that the term damages in its
policy referred to the technical distinction between legal damages and equitable
relief. Consequently, SnyderGeneral's environmental cleanup costs, which the
court characterized as restitution or reimbursement, did not qualify as damages.
An intervening decision by this court is dispositive of the issue presented
herein. In Bituminous Casualty Corp. v. Vacuum Tanks, Inc.,3 an insurer contended
that it did not have a duty to defend its insured in a suit by the federal government
under the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 ("CERCLA").4 In that action the government sued the insured for
expenses incurred in cleaning up environmental contamination at a facility where
the insured delivered hazardous waste. The insurer contended that such cleanup
costs constituted economic injury and, as such, did not qualify as damages under
its policy.5 We held, however, that environmental cleanup costs imposed on an
insured by CERCLA were damages.
Consistent with the holding in Bituminous Casualty, we now conclude and
375 F.3d 1048 (5th Cir. 1996).
442 U.S.C. § 9601 et seq.
5The Bituminous policy provided coverage for "all sums which the insured
shall become legally obligated to pay as damages because of injury to or
destruction of property, including the loss of use thereof, caused by accident."
75 F.3d at 1052.
4

hold that environmental cleanup costs, whether incurred by the federal government
under CERCLA or by an individual who voluntarily undertakes the task of cleaning
up hazardous waste, are damages and thus are covered by the language of
Century's policy. We are persuaded that such a reading of the subject insurance
policy is consistent with the conclusions of several federal courts and with
decisions of Texas courts.6
2. Pollution and Care, Custody and Control Exclusions
In its motion for summary judgment, Century contended that either the
pollution exclusion clause7 or the care, custody and control exclusion clause8 of its
policy precluded recovery by SnyderGeneral. The district court disagreed on both
counts, finding that the term "sudden" in the pollution exclusion clause had a
temporal component, and that SnyderGeneral had created a question of fact as to
the suddenness of the TCA discharge by alleging that it occurred within a 24-hour
6See id., 75 F.3d at 1053 (citing decisions of federal courts); and Barnett v.
Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987) ("[W]hen the language [of
an insurance policy] is susceptible of more than one construction, [it] should be
construed strictly against the insurer and liberally in favor of the insured.").
7"[T]his policy shall not apply to . . . property damage arising out of the
discharge . . . of . . . toxic chemicals . . . into or upon land, the atmosphere or
any water course or body of water; but this exclusion does not apply if such
discharge. . .is sudden and accidental."
8"[T]his policy shall not apply to: property damage to: (1) property owned
or occupied by or rented to the insured; (2) property used by the insured; or (3)
property in the care, custody or control of the insured as to which the insured is
for any purpose exercising physical control."
5

period. We find no error in the district court's finding.9 We likewise find no error
in the district court's determination that under Texas law, the care, custody and
control exclusion only precludes insurance coverage in cases in which the insured
totally and physically manipulates property. As Century failed to establish that
SnyderGeneral totally and physically used or controlled the entire pool of
groundwater at the Wilmington facility, it was not entitled to summary judgment.10
For the foregoing reasons, the judgment of the district court is AFFIRMED
in part and VACATED and REMANDED in part for further proceedings consistent
herewith.
9See Mustang Tractor & Equip. Co. v. Liberty Mut. Ins. Co., 76 F.3d 89, 93
(5th Cir. 1996) (holding that "`[s]udden' may only reasonably be construed to
mean quick or brief").
10See Hartford Cas. Co. v. Cruse, 938 F.2d 601, 604 (5th Cir. 1991) ("The
[homeowners] continued inhabiting the house while [the contractor] worked on
the foundation. We thus reject the contention that [the contractor] had care,
custody, or control of the entire house. `The cases have limited this `control' to
the particular object of the insured's work. . .and to other property which he
totally and physically manipulates.'") (quoting Goswick v. Employers' Cas. Co.,
440 S.W.2d 287, 289-90 (Tex. 1969)).
6