Crum & Forster Specialty Insurance v. Explo Systems Inc.
Crum & Forster Specialty Insurance v. Explo Systems Inc.
Opinion of the Court
MEMORANDUM RULING
Before the Court is a Motion for Partial Summary Judgment [Doc. # 149], filed by Plaintiffs Crum & Forster Specialty Insurance Company (“CFS”) and Seneca Specialty Insurance Company (“Seneca”), in this insurance dispute. . Plaintiffs seek summary . judgment declaring that: (a) they have no duty to defend or indemnify Defendant Expío Systems, Inc. (“Expío”) for any claims involving or arising out of either the October 15, 2012 explosion at Camp Minden or the resultant evacuation of Camp Minden and the surrounding area; and (b) they have no obligation, to pay any claims asserted by the intervenors in this action. Plaintiffs have filed briefs in support of the motion for summary judgment [Docs. ## 150, 186, and 187]. Intervenor Robert W. Hayden (“Interve-nor”) opposes the motion [Doc. # 167].
BACKGROUND
On October 15, 2012, a large explosion occurred at Explo’s munitions storage facility at Camp Minden, Louisiana. On No
CFS filed the instant suit on December 14, 2012; Seneca joined as a party plaintiff on December 27, 2012. Plaintiffs seek declaratory judgment against their insured, Expío, as well as rescission of the liability policy in effect at the time of the explosion. The Court previously denied Plaintiffs’ motions for partial summary judgment, based on Plaintiffs’ failure to adequately set forth the relevant facts and arguments upon which'the motions were ostensibly based.
First, Plaintiffs allege that thei-e is no coverage for claims arising out-of'Explo’s storage of M6 propellant .or other explosive materials, as Explo’s storage thereof knowingly violated multiple state and federal laws and regulations, rendering such acts subject to the criminal, fraudulent, and dishonest act exclusion. Second, Plaintiffs allege that there is no coverage for any claims arising out of the October 15, 2012 explosion, because said explosion involved smokeless black powder that was purchased by Expío for resale and not covered by the two designated operations, which are thermal treatment and disas-sembly of ammunition and recycling and separation of remaining scrap. Third, Plaintiffs deny coverage for claims arising out of the evácuation of the area surrounding Camp Minden, because the third-party evacuation claims do not involve claims for bodily injury or property damage as those terms are defined in the CFS policy. Plaintiffs further allege that the commercial property policy issued by Seneca to Expío provides coverage only for direct physical loss of, or damage to, specified property at Camp Minden, which is caused by a covered loss; therefore, Plaintiffs deny coverage for any third-party evacuation claims. And, fourth and finally, Plaintiffs assert that the Seneca Policy does not provide coverage for any third-party claims, as it only provides first-party property coverage to Expío, for direct physical loss of or damage to covered property at the premises, as defined and described therein.
Intervenor responds by arguing that the claims arising out of the explosion and evacuation are covered, for the following four reasons: (1) M6 is a propellant and not an “explosive” as defined in La.Rev. Stat. § 40:1472.2(7); (2) the ammunition shells were at Expío for the purpose of disassembling the. ammunition to recover and recycle the metal therein and to ther
FACTS
Expío leased certain, real property, located at Camp Minden; from the Louisiana Military Department (“LMD”) pursuant to a commercial lease. .CFS issued Policy Number EPK-100814 (“CFS Policy”) to Expío for the period from September 12, 2012 through September 12, 2013. The CFS Policy contains three coverage parts: Commercial General Liability Occurrence Coverage, Third Party Pollution Liability Coverage, and Onsite Cleanup Pollution Liability Coverage. A Designated Operations Coverage Endorsement attached to the policy provides that coverage under all three parts of the CFS Policy applies only to “bodily injury” or “property damage” arising out of “the designated operations indicated in the Schedule[:]” (1) thermal treatment and disassembly of ammunition and (2) recycling and separation of remaining scrap.
This policy does not apply to “damages”, “defense expenses”, “cleanup costs”, or any loss, cost, or expense, or any “claim” or “suit”:
3. Criminal, Fraudulent or Dishonest Acts
Based upon or arising out of:
a. Any criminal, fraudulent, or dishonest act, omission, or offense committed by the insured ...
b. Any act, omission, or offense committed by the insured with knowledge of its wrongful nature or with the intent to cause damage;
c. The obtaining by the insured of any profit, gain or advantage to which the insured is not legally entitled[.]7
The Covered Locations Endorsement to the CFS Policy describes the two, above-stated designated operations at the Camp Minden site, as being covered under . the Third Party Pollution Liability and Onsite Cleanup Coverage Parts.
Seneca issued Commercial Property Policy Number SSP 22 011 76 (“Seneca Policy”) to Expío for the period from January 22, 2012 through January 22, 2013. The Building and Personal Property Coverage Form in the Seneca Policy provides that the insurer “will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.”
In the ordinary course of business, Ex-pío stored materials it disassembled and/or
Thereafter, LSP discovered that Expío was storing more than 15 million pounds of unsecured M6 propellant, outside of bunkers, in the portion of Camp Minden where Expío performed its operations.
The Louisiana National Guard (“LNG”), as owner of Camp Minden, requested that the Army assess the potential short-and long-term hazards associated with the presence of M6 propellant at the site.
In August of 2013, the Environmental Protection Agency (“EPA”) asked that the DOD reconsider its level of participation in the responsive actions necessary to address the millions of pounds of “improperly stored explosive materials[,]” which created “an imminent and substantial endangerment to public health, welfare, and the environment.”
In January of 2014, the EPA, acting pursuant to its authority under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) entered into an Administrative Settlement Agreement and Order on Consent for Removal Action (“AOC”) with General Dynamics Ordnance and Tactical Systems, Inc. and Alliant.
9-10 million pounds of unsecured and improperly stored M6 propellant. The M6 propellant was stored in 60 pound cardboard boxes, 110-140 pound drums and 880 pound super sacks throughout [Expío] Site buildings, hallways, and outside.
Additional investigation of the Expío Site revealed the improper storage of other materials, in addition to the M6 propellant. For example, the Army’s Explosives Safety Board 2013 safety reviews show the materials stored at the Site included: 1) 128 pounds of black powder; 2) 200 pounds of Composition H6; 3) four 50-gallon drums of ammonium perchlorate; 4) two 50-gallon drums and two 150 pounds boxes of Explosive D (ammonium picrate); 5) 109,000 pounds of M30 propellant; 6) 320,000 pounds of Clean Burning Incindiary (CBI); 7) 661,000 pounds of nitrocellulose; 8) 1.817 million pounds of tritonal mixed with wax/tar; and 9) 15 million pounds of M6 propellant.25
Expío admitted that the M6 propellant is an “explosive” as defined under La.Rev. Stat. § 40:1472,2(7).
Prior to the 2012 explosion, Expío improperly stored one million pounds of explosives at its Camp Minden operations; failed to maintain its Camp Minden facilities in accordance with the law; failed to maintain proper regard and concern for the safety and well-being of persons and property in the vicinity of Camp Minden; failed to take reasonable steps to prevent the 2012 explosion and other explosions; and failed to take reasonable and necessary steps to insure that the explosives stored at Camp Minden would be stored in a safe manner, as required by law.
Expío recklessly failed to exhibit responsible care for explosives safety and failed to create and enforce an explosives safety culture.
By routinely storing millions of pounds of M6 propellant and other explosive material outside in the open air and in other non-approved explosive storage buildings and facilities, Expío failed to comply with 27 C.F.R. § 555.205, which requires that all explosive material be kept in locked magazines meeting certain requirements, unless the explosive material is being manufactured, physically handled in the operating process, being used, or being transported. Expío failed to store M6 propellant and other explosive materials at Camp Minden in compliance with 18 U.S.C. § 842(j) which provides that it is unlawful to store explosive materials in a manner not in conformance with the regulations promulgated by the Attorney General of the United States, 27 C.F.R. § 555 et seq.
Expío and several of its officers and employees were holders of Louisiana state licenses for the handling, processing, transportation, and storage of explosive materials. In June of 2013, Expío and-several of its officers and managers were criminally indicted in Webster Parish, on charges relating to' the handling and storage of explosives and explosive materials at Camp Minden.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 56(a) directs that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact
To award summary judgment, “[a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in [his] favor.” Norwegian Bulk Transport A/S v. Int’l Marine Terminals P’ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). To this end, “[t]he moving party bears the burden of establishing that there are no genuine issues of material fact.” Id. at 412. Incorporated herein are facts which, on prior motion of the Plaintiffs, were deemed admitted, pursuant to a memorandum order issued by the magistrate judge.
Where federal jurisdiction is based on diversity of citizenship, a federal court applies the substantive law of the forum state. Foradori v. Harris, 523 F.3d 477, 486 (5th Cir. 2008) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The parties agree that Louisiana law applies in this case. “Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment.” Huggins v. Gerry Lane Enterprises, Inc., 2006-2816 (La. 5/22/07), 957 So.2d 127, 129.
Under Louisiana law, “[a]n insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code.” Cadwallader v. Allstate Ins. Co., 2002-1637 (La. 6/27/03), 848 So.2d 577, 580. Louisiana’s Civil Code provides that “[i]n-terpretation of a contract is the determination of the common intent of the parties.” La. Civ.Code art.2045; see also Cadwallader, 848 So.2d at 580. “If the policy wording at issue is clear and unambiguously expresses the-parties’ intent, the insurance contract must be enforced as written.” Cadwallader, 848 So.2d at 580. If, however, there is any ambiguity, “[t]he court should construe the policy ‘to fulfill the reasonable expectations of the parties
An insurance contract must be “construed according to the entirety of its terms and' conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy.” La.Rev.Stat. § 22:881. An insurance contract “should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achievé an absurd conclusion.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 208 (5th Cir. 2007) (quoting Cadwallader, 848 So.2d at 580). “The fact that a term is not defined in the policy itself does not alone make that term ambiguous.” Id. (citing Am. Deposit Ins. Co. v. Myles, 2000-2457 (La. 4/25/01), 783 So.2d 1282, 1287). “Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms.” Id. (quoting Cadwallader, 848 So.2d at 580).
“Unless a policy conflicts with statutory provisions' or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes.” Huggins, 957 So.2d at 129 (citing Carbon v. Allstate Ins. Co., 97-3085 (La. 10/20/98), 719 So.2d 437, 439) (citation omitted). Under Louisiana law, the insured bears the burden of establishing that the claim falls within the policy coverage; the burden shifts to the insurer to prove the applicability of an exclusion within the policy. See Doerr v. Mobil Oil Corp., 2000-0947 (La. 12/19/00),774 So.2d 119, 124. As stated, the CFS Policy provided coverage for “bodily injury” or “property damage” arising out of “the designated operations indicated in the Schedule^]” which included: thermal treatment and disassembly of ammunition; and recycling and separation of remaining scrap. According to the declaration of Plaintiffs’ explosives expert Robert C. Morhard,
the charge of- a 155 mm shéll, such as the ones that Expío was disassembling at Camp Minden;-will contain approximately 20.9 pounds of M6 propellant (which is 87% nitrocellulose), 4 ounces of clean burning incendiary (“CBI”) powder and 0.5 ounces of black powder in the base igniter pad, and a flash reducer*616 consisting of 1 pound of potassium sulfate and 3 ounces of lead foil.44
The parties agree that the October 15, 2012 explosion did not involve M6 propellant.
Similarly, the Court is uripersuad-éd by Intervenor’s argument in favor of coverage for Explo’s storage of the M6 propellant. Intervenor contends that it could be reasonably anticipated, under the CFS Policy, that the M6 propellant and other materials would be stored at the facility until thermally destroyed, during the designated operations. The Court finds that the improper nature of Explo’s extensive storage of such an enormous amount of M6 propellant, as well as the investigative reports and correspondence in the record, arguably renders Explo’s actions outside of the designated operations as it seems unreasonable that such storage would be considered' part.of the disassembling and recycling operations. However, in light of the evidence before the Court, it is prudent to discuss the criminal, fraudulent, and dishonest acts exclusion in the context of the M6 propellant, which was the cause of the post-explosion evacuation. The record is replete with overwhelming evidence of the illegal and improper nature of Explo’s actions, involving conscious and knowing decisions to improperly store millions of pounds of M6 propellant and other explosive materials at Camp Minden. Intervenor’s primary arguments against the application of this exclusion .are, first, that M6 is not an “explosive” under Louisiana law, and second, that no crimes or intentional acts were committed.
As to Intervenor’s first' argument, regarding whether or not M6 is an “explosive,” the Court finds Intervenor’s contentions meritless. As stated, Expío- admitted that the M6 propellant is an “explosive,” as defined under La.Rev.Stat. § 40:1472.2(7). This fact finds ample support in the record evidence, including investigative reports of the Army and LSP, EPA orders and documents, and consent orders entered into by the EPA and various entities involved in emergency removal actions. Even assuming, arguendo, that Explo’s admission that M6 propellant is an explosive as defined by La.Rev.Stat. § 40:1472.2(7) does not suffice to establish that fact, it is undisputed that Explo’s storage of M6 was a violation
Intervenor’s second argument is that the word “criminal” must be read in the context of both “fraudulent” and “dishonest,” such that the exclusion cannot apply because Expío fairly, accurately- and honestly disclosed the nature of its operations to CFS and Seneca. On Explo’s application for insurance coverage, submitted to CFS in September of 2011, Expío described its current operations as: “disassemble and recycle military bombs for [the government].”
Louisiana requires a policy to be construed so as to give effect, if possible, to every provision therein. Huey T. Littleton Claims, Inc. v. Employers Reinsurance Corp., 938 F.2d 337, 340 (5th Cir. 1991); Hemel v. State Farm Mut. Auto. Ins. Co., 211 La. 95, 29 So.2d 483 (1947). The exclusion applies to both: any criminal, fraudulent, or dishonest act, omission, or offense; or any act, omission, or offense committed by the insured with knowledge of its wrongful nature or with the intent to cause damage. The record before the Court, including determinations by the LSP, LNG and EPA that Expío improperly and illegally stored explosives and the admissions that Expío knew that such storage was wrongful, gives the Court no pause in deciding that this policy exclusion disallows coverage for damages arising from the evacuation, which was ordered upon discovery of the improper and illegal storage of millions of .pounds of explosives at Camp Minden. It is undisputed that Explo’s storage thereof constituted violations of’ the following: La.Rev.Stat. § 40:1472.3; La.Rev.Stat. § 40:1472.5(A) and (B); La.Rev.gtat. § 40:1472.12; La. Rev.Stat. § 40:1472.19; 18 U.S.C. § 842©; and 27 C.F.R. § 555.205. It is further undisputed that at least some of those violations were knowing violations, as evidenced by both Explo’s admissions thereof and the training that Explo’s officers and employees received as holders of licenses issued by Louisiana for the handling, processing, transportation and storage of explosive materials. Expío knew that it stored M6 propellant and other explosive materials in a manner that endangered or could endanger human, life, health or property. Therefore, because the evacuation was the result of Explo’s storage of millions of pounds of unsecured M6 propellant and other explosive materials and that storage was in knowing violation of state and federal laws, the Court finds that evacuation-related claims arising out of
Regarding the Seneca Policy, Plaintiffs correctly point out that there is no substantive opposition to the motion for summary judgment. Intervenor’s opposition, in large part, conflates the two policies and references merely “the policy” throughout. To the extent Seneca is discussed in isolation, the discussion does not extend to substantive opposition. Therefore, the Court finds that Seneca is entitled to summary judgment and has no duty to indemnify Expío or intervenors for any claims arising out of the October 15, 2012 explosion at, or subsequent evacuation of, Camp Minden.
CONCLUSION
Plaintiffs have shown, through the admissions of Expío and the evidence of record, that they are entitled to summary judgment on all bases discussed herein. All claims arising out of the October 15, 2012 explosion are outside the scope of coverage of the CFS Policy, and all claims arising out of the subsequent evacuation are excluded from coverage under the CFS Policy. Seneca likewise has no duty to indemnify Expío or intervenors for any claims arising out of the explosion or evacuation. Accordingly, the motion for partial summary judgment [Doc. # 149] is hereby GRANTED.
. Intervenor lives in the area surrounding Camp Minden and meets the requirements for class membership in an action filed in Louisiana’s 26th Judicial District Court, Webster Parish, Louisiana under Civil Docket No. 72,-717, Roger Reeves et al v. Explo Systems Inc. et al. [Doc. # 115, p. 1, ¶ 1], Intervention was allowed to protect Intervenor’s, and the prospective class’s, interests in any insurance proceeds, as same could be adversely impacted by the outcome of this insurance dispute. [Doc. # 114].
.At some point, the caption in the Fullerton suit became Roger Reeves et al v. Explo Systems Inc. and Crum and Forster Specialty Insurance Company [See Doc. # 114, p. 2 n. 2; Doc. # 115, p. 1].
. Doc. #122.
. See Doc. # 150, p. 7 n. 2.
. Doc. # 167, p. 6.
. Doc. #150-4.
. Doc. # 1-50-3, p. 3.
. Doc. # 150-2, p. 72.
. Doc. # 150-5, p. 8.
. Id. at p.9.
. Intervenor alleges that Affiant's sale of powder to Expío was an effort by Affiant, a manufacturer of ball powder, to recycle unusable material, and is a covered activity under the CFS policy [Doc. # 167-5, ¶ 9]. This contention fails to dispute Plaintiffs’ statement that the powder was not part of the demilitarization process at Camp Minden, and Expío has admitted that the black smokeless powder was not part of the thermal treatment and disassembly of ammunition nor was it part of the recycling and separation of remaining scrap [Doc. # 186, p. 2].
. Doc. # 186, p.2.
. Doc. #150-8.
. Id.
. Doc. # 186, p.3. Although Plaintiffs reference the amount of stored materials in terms of "tons” in Doc. # 186, all other references are to "pounds;” therefore, the court has maintained that reference.
. Id. atp.5.
. Id. at pp.3 and 5.
. Doc. #150-9.
. Doc. # 150-10, p.7; Doc. # 150-11, p.2.
. Doc. # 150-10, p.21.
. Id. at p. 31. (Total estimated hazardous and/or explosive materials at Camp Minden included: 15-16 million pounds of M6 propellant; 1.817 million pounds of Tritonal (aluminum/TNT) mixture; 661,000 pounds of Nitrocellulose; 320,000 pounds of Clean Burning Incendiary (CBI); 128 pounds of black powder; 200 pounds of Composition H6; Four 50-gallon drums of ammonium perchlorate; Two 50-gallon drums and 3-50 pound boxes of Explosive D (ammonium pic-rate); 109,000 pounds of M30 propellant; Unknown volume of Red Water (water contaminated with TNT); and Effluent associated with the Super Critical Water Oxidation Unit (SCWO). [See Doc. # 150-24, p.4]).
. Doc. #150-12.
. Docs. ## 150-13 and 150-14.
. Doc. # 150-19.
. Id. at p. 8, ¶¶ (c) and (d).
. Doc. # 150-21, p. 5. (The EPA issued the UAO pursuant to Section 7003 of the Resource Conservation and Recovery Act (RCRA), codified at 42 U.S.C. § 6973. The Army unsuccessfully requested that the UAO be withdrawn, to which the EPA issued a lengthy response, on July 16, 2014, discussing Explo's improper and illegal storage of M6 propellant at Camp Minden. [See Doc. # 150-22]).
. Doc. # 150-20.
. Doc. # 150-23.
. Doc. # 150-24, p. 4.
. Doc. # 186, p.4. Intervenor admits that Expío violated state law, compare Doc. # 167-5, p.3, ¶¶ 29 and 33, but disputes that M6 propellant is an explosive under Louisiana law, with id. at 131. However, Intervenor’s evidence fails to bring Explo’s admitted fact into question. The testimony of Colonel Bradley is offered to prove that M6 is not an explosive under Louisiana law. However, Col. Bradley is not asked whether M6 is an explosive, as that term is defined under La. Rev.Stat. § 40:1472.2(7), and he repeatedly qualifies his own testimony by admitting that he is "not an explosive chemist.” See e.g. Doc. # 167-1, pp. 6 and 7.
. Id.
. Id.
. Id. at pp.4-5.
. Id. at pp.5-6.
. While Plaintiffs contend that Explo’s actions were willful, in addition to being reckless, Intervenor argues that ‘'[t]here is no evidence ... that any act was willful as opposed to being caught in a downturn of the economy and unable to dispose of recycled material.” See ¶¶ 27, Docs. # 151 and 167-5.
. Doc. #150-15.
. Doc. # 150-16.'
. Doc. # 150-17 (Doc. #341, Case No. 13-12046, In Re Explo Systems, Inc. (Bankr.W.D.La.)).
. Doc. #150-17, p. 4, ¶ 9.
. Rule 56 was amended effective December 1, 2010. Per the comments, the 2010 amendment was intended "to improve the procedures for presenting and deciding summary-judgment motions and to make the procedures more consistent with those already used in many courts. The standard for granting summary judgment remains unchanged.” Therefore, the case law applicable to Rule 56 prior to its amendment remains authoritative, and this court will rely on it accordingly.
. See Docs. ## 164, 185, and 186.
. Although Intervenor generally admits to the opinions offered by Plaintiffs’ expert, see Doc. # 151, pp. 10-14, Intervenor also argues via footnote that the expert’s report is inadmissible hearsay and contains statements adverse to Plaintiffs’ position and thus admissions against interest, see Doc. # 167, p. 9 n. 6. The Court notes that the admissibility of expert testimony is governed' by the same rules, whether at trial or on summary judgment, First United Financial Corp. v. US. Fidelity & Guar. Co., 96 F.3d 135, 136-37 (5th Cir. 1996). Having reviewed Morhard’s declaration and expert qualifications, and noting the lack of any serious objection to the reliability of his expert opinion,- the Court finds Morhard’s opinion to be reliable, to the extent relied upon herein.
. Doc. # 150-25, p. 5.
. Id.
. Doc. #167, p.9 ("M6 was not what exploded.”); Doc. #151, p.3, ¶ 8.
. Doc. # 167-3, p.l,
. Id. at p.5.
Reference
- Full Case Name
- CRUM & FORSTER SPECIALTY INSURANCE CO. v. EXPLO SYSTEMS INC.
- Cited By
- 2 cases
- Status
- Published