diligent searches. Inasmuch as Capital Mutual has likewise provided affidavits detailing its futile efforts to locate the policy, and that those efforts (discovery of NYMU, attempts to contact Blank's insurance broker) parallel those which were found sufficient in Burroughs and Colonial Tanning, the court concludes that Capital Mutual has satisfied the threshold "diligent search" requirement.
2. Existence and Terms of Policy
The court turns next to Capital Mutual's evidence concerning the existence and terms of the alleged policy. Capital Mutual has proffered the affidavit of Serge A. Bervy, Sr., an insurance broker licensed to conduct business in New York State. Bervy attests that he served as Blank's insurance broker from 1976 through 1987. Bervy Aff. (2/5/93) P 3. While his affidavit might initially seem irrelevant-- after all, he was not Blank's broker during the years in which Blank was allegedly covered by NYMU insurance-- upon closer review it becomes clear that Bervy has some knowledge of Blank's coverage from 1972 through 1975. Bervy has produced from his file a copy of a Declarations Page to a NYMU insurance policy held by Blank. Id. exh. "A". The Declarations Page indicates that Blank and his spouse were the named insureds of a policy issued by NYMU and that the effective dates of the policy were from February 28, 1972 through February 28, 1975. Among the properties listed on the Declarations Page as being covered by the policy was the Saratoga County parcel that is the subject of this litigation. See id. Based upon his knowledge as an experienced insurance broker, Bervy asserts that a Declarations Page is an accurate indicator of the coverage provided in the corresponding policy. See id. According to Bervy, the only exception to this presumption of accuracy would arise when the coverage had been cancelled prior to the policy's expiration date. Id. P 6.
The Declarations Page, of course, speaks only to the existence of a policy; it provides no insight into the policy's terms. To prove the terms of the policy, Capital Mutual relies upon NYMU's concessions in its responses to interrogatories. In those responses, NYMU stated that "if the insurance policy alleged by [Capital Mutual] was issued, then it was issued by NYMU alone and without any participation of the other name fourth-party defendants." Pierce Aff. (2/12/93) PP 9(c), (d) & exh. "5". In addition, a sample policy provided by NYMU in response to Capital Mutual's request for production of documents contains virtually the same pollution exclusion clause that appeared in Blank's Capital Mutual policy. Significantly, NYMU does not contend that the exclusion clause in the policy it produced is distinguishable in any material respect from the exclusion contained in the Capital Mutual policy. NYMU's concession as to the similarity between the two clauses is significant because, as mentioned above, this court has already construed that language as requiring insurers (including Capital Mutual) to defend and indemnify Blank in the State's action. See generally Blank II, 1991 U.S. Dist. LEXIS 14582.
When considered altogether, Capital Mutual's evidence establishes a prima-facie case showing that a policy existed and that the policy contained terms which require NYMU to defend and indemnify Blank in the State's action. The Declarations Page shows that a NYMU policy existed from 1972 to 1975, and NYMU's responses to Capital Mutual's discovery demands show the terms of those policies. Combined, this evidence indicates that Capital Mutual has successfully dispatched its burden of establishing a prima facie case of the existence and terms of a governing insurance policy. Cf. Union Fork & Hoe Co., 1992 U.S. Dist. LEXIS 6749 at *11 (citing Boyce Thompson Inst., 751 F. Supp. at 1140 (party seeking coverage must establish the existence, execution, delivery, and contents of the policy)).
With Capital Mutual having presented evidence to support a prima facie case showing of the existence and terms of the policy, the burden shifts to NYMU to show that a factual dispute exists as to Capital Mutual's ability to prevail on the merits. In this regard, NYMU "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, once Capital Mutual presents competent evidence supporting each element of its prima-facie case, NYMU must "come forward with 'specific facts showing there is a genuine issue for trial.'" Id. at 587 (emphasis added) (quoting Fed. R. Civ. P. 56(e)). NYMU's burden is not overly burdensome when one considers that its evidence need be neither dispositive, nor even persuasive; so long as NYMU presents some evidence which "generates uncertainty as to the true state of any material fact," it can defeat Capital Mutual's motion. See Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983) (citing Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980)). Although its burden is light, NYMU nevertheless shoulders the minimal burden of proffering at least some evidence showing that a factual dispute exists. See, e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S. Ct. 3177, 3188-89, 111 L. Ed. 2d 695 (1990); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).
The court has reviewed NYMU's opposition to Capital Mutual's motion and concludes that NYMU has not carried its burden. Rather than present any evidence suggesting the existence of a factual dispute, NYMU chose instead to sit back and criticize the persuasiveness of Capital Mutual's evidence. Stated in procedural terms, NYMU has offered no evidence indicating the presence of a genuine dispute as to the existence and terms of the policy. NYMU's primary opposition to Capital Mutual's motion is based upon one person's speculation that Blank or NYMU might have cancelled the policy before its expiration, or that the Declarations Page might in some other respect be inaccurate. Wege Aff. (3/3/93) P 8. In light of these suggestions, the court searched the record for some tangible evidence to support NYMU's theories, but was simply unable to find any particular facts upon which a trier of fact could rely to support NYMU's speculation. Having failed to present any evidence which arguably contradicts, or at least challenges, the accuracy of Capital Mutual's case, NYMU cannot show the existence of a genuine factual dispute concerning the existence and terms of the policy. Cf. Matsushita, 475 U.S. at 587; National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989).
NYMU asserts that the evidence proffered by Capital Mutual would be inadmissible at trial and thus cannot support its motion for summary judgment. The argument runs that Capital Mutual's evidence, primarily in the form of affidavits, is not based upon the affiants' first-hand knowledge and therefore cannot be considered by the court in this motion. See Chandler v. Coughlin, 763 F.2d 110, 113-14 (2d Cir. 1985) (first hand knowledge requirement in summary judgment motions); McLaughlin v. New York, 784 F. Supp. 961, 965 (N.D.N.Y. 1992) (same). Contrary to NYMU's assertion, all of the evidence tendered by Capital Mutual in this motion is competent. The evidence upon which Capital Mutual most heavily relies, the Declarations Page to Blank's policy, is a document which speaks for itself. Such Declarations Pages are commonly kept in the industry and, according to Bervy, prepared at the time the policy is executed, thus qualifying them as business records. See Fed. R. Evid. 803(6); see also Saks Int'l, Inc. v. M/V Export Champion, 817 F.2d 1011, 1013 (2d Cir. 1987); Yankee Bank for Finance & Sav., FSB v. Task Assocs., Inc., 139 Bankr. 71, 79 (N.D.N.Y. 1992) (citing cases) (discussing prerequisites to invocation of business records hearsay exception). The trier of fact could properly rely upon the information contained on the Declaration Page to conclude that Blank held NYMU insurance from 1972 to 1975, and NYMU has offered no evidence to refute that. As for proving the terms of the policy itself, Capital Mutual properly relies upon NYMU's concessions in its responses to discovery requests. Inasmuch as NYMU has admitted that if a policy existed, its terms were identical to those contained in the sample policy provided by Capital Mutual, including the pollution exclusion clause, it has removed from dispute the question of whether Capital Mutual can prove the terms of the policy, and summary judgment would be proper. See Pierce Aff. (2/12/93) PP 9(c), (d) & exh. "5".
NYMU next argues that even if one were to assume that the policy existed and that the terms were identical to those alleged by Capital Mutual, summary judgment still would not be warranted because Blank is not eligible for coverage under these terms.
NYMU asserts three reasons why Blank would still be ineligible for coverage. Implicit in each of these arguments is NYMU's presumption that if Blank is not eligible to receive coverage under the policy, then Capital Mutual cannot rely upon that policy to receive contribution. The court will discuss NYMU's arguments seriatim.
(a) Pollution exclusion clause
The policy which NYMU issued to Blank contained what the parties agree to be a standard pollution exclusion clause. The clause essentially excludes from coverage all occurrences of environmental contamination except those which are "sudden and accidental."
Pierce Aff. (2/12/93) exh. "5". If the State's underlying complaint alleges an occurrence that was sudden and accidental, then NYMU must provide Blank with a defense from that suit. See, e.g., EAD Metallurgical, Inc. v. Aetna Cas. & Sur., 905 F.2d 8, 11 (2d Cir. 1990); Avondale Indus., Inc. v. Travelers Indem. Co., 887 F.2d 1200, 1204-05 (2d Cir. 1989), cert. denied, 496 U.S. 906 (1990). This duty to defend arises regardless of whether or net the State ultimately proves that sudden and accidental contamination occurred. As this court already explained in Blank II,
the duty to defend and the duty to indemnify are separate and distinct questions of law. The Insurers' duty to defend arises solely on the basis of allegations set forth in the State's complaint in the main action. So long as the claims alleged by the State rationally may be said to fall within the policy coverage, the Insurers must come forward and defend; this is so even if the State's allegations ultimately prove fruitless, thus absolving the Insurers of the duty to indemnify for damages. . . . [As] this court noted in [Blank I,]