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NEW YORK v. BLANK

May 5, 1993

THE STATE OF NEW YORK, Plaintiff,
v.
WALTER T. BLANK, ABALENE PEST CONTROL SERVICE, INC., AND ORKIN EXTERMINATING COMPANY, INC., Defendants. WALTER T. BLANK AND ABALENE PEST CONTROL SERVICE, INC., Third-Party Plaintiffs, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, NEW ENGLAND MARINE CONTRACTORS, INC., CAPITAL MUTUAL INSURANCE CO., AND NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA., Third-Party Defendants. CAPITAL MUTUAL INSURANCE CO., Fourth-Party Plaintiff, v. NEW YORK MUTUAL UNDERWRITERS, COMMERCIAL MUTUAL INSURANCE CO., f/k/a/ THE COOPERATIVE FIRE INSURANCE COMPANY OF CATSKILL, NEW YORK, SECURITY MUTUAL FIRE INSURANCE CO., and STERLING INSURANCE CO., Fourth-Party Defendants.


McCURN


The opinion of the court was delivered by: NEAL P. MCCURN

MEMORANDUM-DECISION AND ORDER

 New York State commenced this action in February, 1988, pursuant to the Comprehensive Environmental Response, Liability and Compensation Act of 1980 ("CERCLA"), various New York State environmental statutes, and state common law. The State alleges in pertinent part that between 1972 and 1986, defendants/third-party plaintiffs Abalene Pest Control Service ("Abalene") and Walter T. Blank illegally caused hazardous contamination of certain land located in Saratoga County, New York. Abalene and Blank impleaded, among others, National Union Insurance Company and Capital Mutual Insurance Company ("Capital Mutual"), their respective insurance carriers, seeking a defense and indemnification from the State's suit. Capital Mutual subsequently commenced a fourth-party action against, among others, New York Mutual Underwriters ("NYMU"), claiming that NYMU also provided Blank with insurance coverage during the periods of contamination and therefore should contribute to Capital Mutual's defense and indemnification. This court has jurisdiction pursuant to 42 U.S.C. § 9613 (CERCLA) and 28 U.S.C. § 1331 (federal question).

 During the five years in which this case has been pending, the court has become quite familiar with the parties and their positions. The court has previously issued two lengthy decisions in this case and has adjudicated numerous other disputes, almost all of which related to the extent to which the insurers must defend Abalene and Blank. See New York v. Blank, No. 88- CV-163, 1991 U.S. Dist. LEXIS 14582 (N.D.N.Y. Oct. 9, 1991) (hereinafter "Blank II"); New York v. Blank, 745 F. Supp. 841 (N.D.N.Y. 1990) (hereinafter "Blank I"). Presently before the court are new issues regarding the duty to defend, brought before the court in Capital Mutual's motion for summary judgment against NYMU and NYMU's cross-motion for summary judgment against Capital Mutual. Both motions relate solely to the fourth-party action. The remaining defendants in the fourth-party action are not parties to this motion.

 I. BACKGROUND

 The court sets forth only those facts that are necessary for consideration of these motions; reference is made to prior decisions issued in this case for a more complete recitation of the facts. On October 10, 1991, this court rejected for the third time Capital Mutual's argument that it has no duty to indemnify or defend Blank in the State's underlying action. Capital Mutual had argued that it should be excused from the case due to the existence of a "pollution exclusion clause" in Blank's policy which excludes from coverage liability arising from occurrences of contamination. *fn1" This court rejected Capital Mutual's arguments because the incidents alleged by the State rationally may be said to fall within the "sudden and accidental" exception to the pollution exclusion clause, thus invoking Capital Mutual's duty to defend. The court further determined that Capital Mutual's duty to indemnify must be determined at the trial on the merits, not during a summary judgment motion. See generally Blank II, 1991 U.S. Dist. LEXIS 14582; Blank I, 745 F. Supp. 841.

 Shortly after the court rendered its October 10, 1991 decision, Capital Mutual filed (with leave of the court) this fourth-party action against NYMU. Capital Mutual contends that NYMU had provided Blank with comprehensive insurance coverage from 1972 through 1975, time periods during which Blank allegedly contaminated the subject land. In fact, argues Capital Mutual, NYMU's insurance policy provided Blank with coverage which was nearly identical to that provided by Capital Mutual. In light of the apparently concurrent coverage and the fact that Blank had not sought indemnification or defense costs from NYMU, Capital Mutual commenced this fourth-party action, seeking contribution from NYMU for 50% of Capital Mutual's indemnification costs and 50% of the costs that Capital Mutual incurs in defending Blank in the underlying action.

 Capital Mutual now moves for summary judgment of the fourth-party action, as asserted against NYMU, on grounds that NYMU can present no evidence to refute Capital Mutual's proof that NYMU issued insurance coverage to Blank during the relevant time periods and that the coverage applies to the State's underlying claims. As mentioned above, none of the other fourth-party defendants are party to this motion. Capital Mutual acknowledges that its motion is made more difficult-- if not more intriguing-- by both parties' professed inability to locate the NYMU insurance policy that allegedly provided Blank the claimed coverage. NYMU contends that if that such a policy ever existed, then it would have been lost or destroyed pursuant to the company's regular business practice. While acknowledging the absence of the subject policy, Capital Mutual argues that it nonetheless is able to rely upon circumstantial evidence to irrefutably prove the existence and terms of the coverage. Thus, contends Capital Mutual, it is entitled to summary judgment of the fourth-party action. NYMU cross-moves for summary judgment on grounds that the terms of any alleged policy would be such that NYMU would not be required to provide Blank with a defense or indemnification from the State's claim, even if Capital Mutual were able to prove that coverage existed in the first place.

 II. DISCUSSION

 A. Capital Mutual's motion for summary judgment

 Capital Mutual's inability to produce the alleged NYMU insurance policy does not by itself preclude it from prevailing on this motion. It is well settled that a party seeking recovery under an insurance policy need not produce the actual policy to prevail in a suit for coverage. See, e.g., Boyce Thompson Inst. for Plant Research v. Insurance Co. of N. Am., 751 F. Supp. 1137, 1140 (S.D.N.Y. 1990); Burroughs Wellcome Co. v. Commercial Union Ins. Co., 632 F. Supp. 1213, 1222-23 (S.D.N.Y. 1986); see also, e.g., Bituminous Cas. Corp. v. Vacuum Tanks, Inc., 975 F.2d 1130, 1132 (5th Cir. 1992). In fact, this court has visited the issue of lost or destroyed insurance policies on two previous occasions, and in both cases recognized that an insured can prove the existence and terms of a policy by circumstantial evidence, without ever producing the subject policy. New York v. Union Fork & Hoe Co., No. 90- CV-688, 1992 U.S. Dist. LEXIS 6749 *11 (N.D.N.Y. May 7, 1992) ("If [the insured] can circumstantially prove the existence and terms of a valid policy, then it can satisfy the threshold requirement of its prima-facie case"); Colonial Tanning Corp. v. Home Indemnity Co., 780 F. Supp. 906, 922 (N.D.N.Y. 1991) ("under the circumstances, the fact that [the insured] has not come forth with complete copies of the policies issued to it by [the insurer] is not a sufficient basis for denying its partial summary judgment motion"). Of course, proving a prima-facie case of the existence and terms of a lost policy is not easy, nor should it be. Capital Mutual's burden is significantly heightened in this summary judgment context because it must establish beyond dispute that a policy existed as well as the terms of the missing policy. See Fed. R. Civ. P. 56(e); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). If there is any doubt as to the existence and/or terms of the coverage, then the court must deny summary judgment. Union Fork & Hoe Co., No. 90- CV-688, 1992 U.S. Dist. LEXIS 6749 *15 (citing cases).

 1. Diligent Search

 Even before presenting its circumstantial evidence to prove the terms of a missing policy, however, Capital Mutual must first satisfy the court that it has made a "'diligent but unsuccessful search and inquiry'" for the missing document. Burroughs Wellcome Co., 632 F. Supp. at 1223 (quoting 5 J. Weinstein & M. Berger, Weinstein's Evidence P 1004(1) [05], at 1004-18 (1983)). This preliminary requirement stems from Fed. R. Evid. 1004, which precludes a party from relying upon secondary evidence to prove the terms of an original when the party loses or destroys the documents in bad faith. See also Fed. R. Civ. P. 56(e) (in reviewing summary judgment motion, court may only consider evidence which would be admissible at trial) Courts have construed this rule in the summary judgment context as requiring the party seeking to recover upon a lost policy to initially establish that it has searched in good faith for the document, but to no avail. Buroughs Wellcome Co., 632 F. Supp. at 1223 (citation omitted).

 Capital Mutual has clearly satisfied this threshold burden. Through the affidavits of its counsel, Alan J. Pierce, Capital Mutual has detailed the measures it took in searching for the NYMU policy (or policies) that covered Blank from 1972 through 1974. Specifically, counsel avers that he sent NYMU interrogatories, requests for document production, and requests for admissions, each of which revealed that the policies likely existed but that NYMU-- the issuer of the policies-- was itself unable to locate them. Pierce Aff. (2/12/93) P 9. Notably, in response to two separate interrogatories NYMU asserted that "if a policy was issued as alleged by [Capital Mutual], it would have been issued by NYMU and any copies of it which may have remained in NYMU's possession would have been destroyed in the regular course of its business." Id. P 9(f) & exh. "4" at PP 7, 9. Capital Mutual's counsel also attempted to contact the Ed Yates Insurance Agency, a Poughkeepsie, New York insurance agency that apparently issued the NYMU policy to Blank (see infra), in an effort to locate the missing policy. Pierce Aff. (2/12/93) P 18. Counsel's endeavors were fruitless, however, because the agency is no longer in existence and the telephone company has no information on an individual named Ed Yates in Poughkeepsie. See id.2

 This court is convinced that Capital Mutual has expended a good-faith, diligent effort to locate the alleged policies and that any policy that NYMU may have issued to Blank is lost or destroyed. It is difficult to fathom how Capital Mutual can be expected to produce a copy of a twenty year old policy when even the company that issued the policy does not have a copy. In any event, it is clear that the independent efforts undertaken by Capital Mutual to locate the missing NYMU policies were at least as thorough as those described in Burroughs Wellcome Co., 632 F. Supp. at 1223, and Colonial Tanning Co., 780 F. Supp. at 922, in which the parties seeking coverage similarly established through affidavits that they had conducted diligent searches. Inasmuch as Capital Mutual has likewise provided affidavits detailing its futile efforts to locate the policy, and that those efforts (discovery of ...


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