INSURANCE: Coverage and defense of oilfield waste pollution suits by Louisiana entities for activities in Montana precluded by failure to provide timely notice and by material misstatements in policy applications… Louisiana law applied in case transferred to Montana… Morris.
Admiral Ins. requests summary judgment that it has no duty to defend or indemnify Defendants under 6 policies issued in relation to 2 State Court suits, Harmon and DEQ, in Roosevelt Co. and 6 Violation Letters from DEQ relating to handling of oil field waste from the Bakken area in North Dakota to the Bainville, Montana site at issue. Defendants are Dual Trucking & Transport LLC (“DTT”), Dual Trucking of Montana LLC (“DTM”), Dual Trucking Inc. (“DTI”), and Anthony Alford. The Dual Entities’ principal places of business are in Houma, Louisiana. Alford, of Terrebonne Parish, Louisiana, was principal manager of DTM, managing member of DTT, and an officer of DTI.
DTI leased a tract in Montana from Garth Harmon and Wagner Harmon in 2011 and assigned its right to lease to DTM later that year. DTM and Harmons then terminated the original lease and DTM leased 3 tracts from Harmons. The DTM-Harmon leases included the entire portion of the original DTI-Harmon lease. The 3 leases, which constitute the “Bainville Site,” included a purchase option for DTM.
Montana DEQ sent a Warning Letter 9/17/12 to Alford advising that it had received a complaint that oil field exploration and production waste (Special Waste) had been placed on the Bainville Site without a Solid Waste Management Facility license which would constitute operating in violation of the Montana Solid Waste Management Act, MCA 75-10-212, 221. The letter required Defendants to within 15 days hire an environmental consultant and develop a corrective action plan and within 30 days the waste must be removed and disposed of and within 60 days Defendants must provide a “cleanup report” from their consultant. Defendants insist that the Warning Letter “merely reported an unsupported hearsay allegation barren of fact” and characterize it as “merely advisory.” Notably, the letter cautions that if Defendants fail to follow its requirements, DEQ stood “prepared to initiate a formal enforcement action that may include the assessment of penalties.”
Admiral issued 2 Environmental Impairment Liability Policies for coverage at the Bainville Site. The first listed a period 10/1/12-10/1-13 and the second for 10/1/13-10/1/14. They list DDT as the named insured. They are claims-made policies, designed to provide coverage for certain pollution conditions at a property that the named insured owns or controls. The application asks whether DTT operated in compliance with environmental laws and whether it knew of any conditions that might lead to a claim. DDT failed to include its receipt of the 9/17/12 Warning Letter in its 2012-13 application.
Admiral also issued 4 Contractor Pollution Liability Policies, 2 to DTI and 2 to DTT. They named DTM as an additional insured. The first 2 CPL policies listed a period of 10/1/12-10/1/13. The second 2 listed a period of 10/1/13-10/1/14.
DEQ sent Violation Letters in quick succession to representatives of the Dual Entities including Alford:
(1) 3/12/13, Solid Waste & Open Burning Complaint; referenced the 9/17/12 Warning Letter and detailed allegations that the Dual Entities were improperly storing and disposing of solid waste, dumping “Liquid Invert” and contaminated soil & water on the ground, and burning Tyvek suits and trash at the Bainville Site.
(2) 3/13/13, Violations of Solid Waste Mgmt. Act; DTT had not performed the required items listed in the 9/17/12 Warning Letter related to the unlicensed Solid Waste Management Facility that it was operating at the Bainville Site.
(3) 3/13/13, Liquid Invert Spill at Bainville; advised that a spill of 1,500 barrels of “Liquid Invert” qualified as an improper disposal of solid waste and constituted a violation of the SWMA.
DDT responded to the first 3 Violation Letters with a letter dated 3/20/13. DEQ on 6/10/13 received an application for a Solid Waste Management Facility license at the Bainville Site.
DEQ sent a 4th Violation Letter dated 8/2/13, Proposed Dual Trucking Treatment Facility — Bainville, Mont., Site Inspection Report, related to the unlicensed Solid Waste management Facility at the Bainville Site. It acknowledges that it had received DTT’s application for a Solid Waste Management Facility License 6/10/13 and notes that DTT was engaged in the ongoing management of solid wastes at the facility, an act that qualifies as operation of a Solid Waste Management Facility without a license in violation of the SWMA.
On 9/25/13 Harmons wrote Alford and DTM (“Breach of Contract Letter”) asserting that DTM had breached the 3 leases at the Bainville site because the Dual Entities had “caused environmental impairment to the Property” and “used the property in a manner that has caused pollution of waterways flowing through or underneath the property.”
DTT failed to attach any of the 4 Violation Letters or mention the pollution referenced in the Breach of Contract Letter when it renewed its 2013-14 EIL policy or CPL policies.
DEQ sent a settlement offer to DTT 12/4/13 seeking to address its violations of the SWMA. In response, DTT employed Hydro Solutions to prepare a Site Characterization & Environmental Condition Report (“2013 Site Report”) which DTT submitted to DEQ 12/13/13. It admitted in the report 3 “suspected or known release” events which it described as “Storm Water” related and as a berm breach lasting 3 hours. It prepared a revised report in 2/14 in which it admits that the 3 release events occurred in 7/13. DEQ and DTT then engaged in settlement negotiations and exchanged redline changes to different offers.
DEQ sent a 5th Violation Letter to the Dual Entities 4/22/14, Request to cease solid waste mgmt. operations at DTM; Mont. DEQ enforcement action for violations of Mont. SWMA, stating that DTT had illegally managed solid wastes at the Bainville Site without an SWMF license since at least 7/12. It acknowledged that DTT had applied for a SWMF license but stated that DEQ had found the application deficient and DTT had not responded adequately to the deficiency letter and the application had expired and DTT should submit a new application.
DTI responded to Violation Letter 5 by letter from Julius Hebert 4/25/14 and by letter from A. Joselyn 4/30/14 advising DEQ that it had ceased operations at the Bainville Site.
Counsel and representatives of DTT met with DEQ 5/6/14. DEQ advised that it believed the Dual Entities were responsible for water quality violations discovered in surface water samples taken from the Bainville Site.
Defendants and Harmons engaged in settlement negotiations regarding the contamination at the Bainville Site and DTM’s proposed purchase of the site. They detailed a number of payment terms in a 5/20/14 email chain. DTM later asserted that it owns the Bainville Site after paying $729,000 for it, equating to $25,000/acre for its surveyed size.
DEQ sent a 6th Violation Letter to the Dual Entities 6/26/14 related to the unlicensed Solid Waste Management Facility at the Bainville Site, Violations of the Water quality Act, referencing DTT’s 9/13/13 admission that it had 3 suspected or known waste or storm water releases at the site.
DTT canceled the 2013-14 EIL policy effective 7/1/14 and received a partial reimbursement of its premium. The policy entitles an insured to an automatic 30-day extended reporting period which “shall apply to Claims first made within the Automatic Extended Reporting Period but only with respect to Pollution Conditions that (a) are Discovered and reported during the Automatic Extended Reporting Period.” “Discovered” is defined as “the point in time at which any officer, director, executive or employee responsible for environmental compliance of an Insured becomes aware of the existence of a Pollution Condition.”
Admiral asserts that it had not received notice of any claims related to the Bainville Site by 7/1/14. The next day DTT provided the first notice of any claims related to the Bainville Site. The Notice of Claim indicates that the date of occurrence was 7/5/13 and seeks coverage under the 2012-13 EIL policy in effect at that time. It attached Violation Letter 6. DTI provided a Notice of Claim 7/3/14 asserting the same claim as stated in DTT’s notice.
On 11/25/14 DEQ filed the Montana DEQ action and included an application for an injunction against DTT related to its use of the Bainville Site as an unlicensed Solid Waste Management Facility which it alleges DTT operated 7/26/12-4/30/14. On 6/23/15 Harmons filed a 2nd amended complaint alleging that Defendants have operated an unlicensed Solid Waste Management Facility at the Bainville Site and have caused or allowed pollutants to remain on the site and migrate off the site to surrounding properties. They point to the allegations in Montana DEQ to support their contentions. DTM counterclaimed against Harmons and filed a quiet title action alleging that it had a lease-to-own agreement for the entire Bainville Site and that Harmons had received full payment for the site but refused to transfer title.
DTM hired Terracon Consultants to conduct testing at the Bainville Site in response to the pollution allegations, It concluded that no contamination migrated off the site onto neighboring property.
This case came before this Court upon transfer from the Eastern District of Louisiana. “The transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue.” Van Dusen (US 1964). A change of venue under 28 USC 1404(a) generally should constitute “but a change of courtrooms.” Id. Eastern District of Louisiana determined that the District of Montana should apply Louisiana law in interpreting the policies.
Admiral seeks a declaration that it maintains no obligation to continue paying Defendants’ defense costs and will not be obligated to indemnify them. Defendants counter that Admiral fails to present a justiciable claim.
Under Montana law, a justiciable controversy requires that parties have existing or genuine rights or interest as opposed to merely theoretical rights. The controversy must present issues that render the court’s judgment operative as distinguished from a debate or argument invoking a purely political, administrative, philosophical, or academic conclusion. And the controversy must require a judicial determination with the effect of a final judgment in law or equitable decree of the rights, status, or legal relationships of a real party. Northfield Ins. (Mont. 2000). Should the controversy lack these features, it still may prove justiciable where it involves issues “of such overriding public moment as to constitute the legal equivalent of each factor. Id.
Defendants insist that Admiral “fails to establish any of these requirements.” They allege that unresolved related issues remain in the underlying actions that ultimately may affect whether it owes a duty to identify them, rendering premature any ruling by this Court on its indemnity obligations. The Court disagrees. Admiral seeks a declaration that Defendants lost coverage under their 6 policies because alleged material misstatements in their applications violated policy terms, their purported knowledge of pollution at the Bainville Site before the policy periods and extended reporting periods violated policy terms, and the fact that they rented, occupied, or controlled the Bainville Site precludes coverage. These determinations may be made separate and apart from the conclusion of the underlying cases.
Admiral asserts that the Dual Entities failed to provide notice of any claim during the 2012-13 EIL policy period. They first provided notice of the pollution condition at the Bainville Site 7/2/14. The notice filed by DTT listed the “date of occurrence” as 7/5/13, which falls within the 2012-13 EIL period. DTT sought coverage for the 7/5/13 occurrence under the 2012-13 EIL policy. DTI provided notice of the pollution at the Bainville Site 7/3/14, the day after DTT had filed its notice. DTI also sought coverage under the 2012-13 EIL policy and listed the “date of occurrence” as 7/5/13.
Admiral describes the 2012-13 EIL policy as a “claims made” policy. It “provides coverage for certain pollution conditions only if the pollution condition was “Discovered and reported to [Admiral] during the Policy Period, the Automatic Extended Reporting Period or the Optional Extended Reporting Period, if any.” Admiral states in its Statement of Undisputed Facts that it “did not receive any notice of a claim related to the Bainville Site during the October 1, 2012 to October 1, 2013 policy period.” Defendants “dispute” that statement, citing the Declaration of Ronald Ronzello, VP of Claims for Berkley Custom Insurance Managers. Their sole basis for disputing Admiral’s statement was that “Admiral received notices of potential claims in July 2013 as admitted by Ronzello.” The Court has reviewed Ronzello’s declaration. It clearly states that Admiral “did not receive any notice of a claim related” to DTT’s facility at the Bainville Site during the 2012-13 policy period. He goes on to state that the first notice of claim that Admiral received was filed by DTT 7/2/14. Contrary to Defendants’ assertion, his statement supports Admiral’s claim that the Dual Entities failed to report any claim to Admiral during the 2012-13 EIL policy period.
Louisiana law provides that a policy limiting coverage to claims “made and reported during the policy period” delineates the scope of coverage bargained for by the insurer. Hood (La. 2008). “The purpose of a reporting requirement in a claims-made policy is to define the scope of coverage purchased by the insured by providing a certain date after which an insurer knows it is no longer liable under the policy.” Gorman (La. 2014). Under a claims-made policy, “the risk of a claim incurred but not made, as well as a claim made but not reported,” shifts to the insured. The insurer can “close its books” on that policy once the policy period and reporting period expire. Id.
The unambiguous policy terms provide that coverage under the 2012-13 EIL policy exists only if Defendants’ claim was discovered and reported within the policy period. Defendants have failed to show that a material dispute of fact arises from Admiral’s assertion that it received no notice of any claim related to the Bainville Site during the 2012-13 EIL policy period. They further fail to dispute that this failure to receive notice eliminates coverage under terms of the policy. Admiral is entitled to summary judgment that no coverage exists under the 2012-13 EIL policy for the pollution conditions at the Bainville Site. Admiral possesses no duty to defend Defendants for claims arising under the 2012-13 EIL policy.
Admiral next argues that no coverage exists for the 7/2/14 claim. It notes that DTT canceled the 2013-14 EIL policy 7/1/14. It claims that DTT provided its first notice of claim 7/2/14 during the automatic extended reporting period and that no coverage exists for the 7/2/14 claim because the Dual Entities discovered the pollution condition before the automatic extended reporting period began.
The 2013-14 EIL policy provides coverage for certain pollution conditions that may have been discovered during the policy period 10/1/13-10/1/14. DTT canceled the 2013-14 EIL policy effective 7/1/14 and received a partial reimbursement of its premium. Admiral received no notice of any claim related to the Bainville Site by 7/1/14 and as a result did not receive notice of any claim during the 2013-14 EIL policy period.
As to the automatic 30-day extended reporting period, DTT’s 7/2/14 notice of occurrence identified the date of the incident as 7/5/13. It sought coverage under the 2012-13 EIL policy, not the 2013-14 policy. Defendants acknowledge receipt of 4 Violation Letters and Harmons’ breach of contract letter before the 2013-14 EIL policy period and their awareness of the 7/13 stormwater releases before the 2013-14 EIL policy period and that they engaged in settlement negotiations with DEQ and received Violation Letter 5 before the 2013-14 EIL extended reporting period. Defendants fail to dispute that the 2013-14 policy period precludes coverage for any pollution condition that Defendants “discovered” before 10/1/13 or that they had knowledge of before the extended reporting period. They instead assert that “certainly coverage has not been requested by Dual with respect to” the 7/5/13 stormwater release. (Emphasis added). The 7/13 stormwater releases constitute the only claims that they made under either EIL policy during the extended reporting period. Beyond DTT’s 7/2/14 notice of claim and DTI’s 7/3/14 notice of claim, Admiral alleges that it received no notice of any other claim or possible claim before 8/1/14 after the 30-day extended reporting period had expired. Montana DEQ was not filed until 11/25/14, long after expiration of the extended reporting period. Harmon was not filed until 2015.
Admiral has provided a defense to Defendants in the underlying claims under the 2013-14 EIL policy because some of the allegations could relate to the 7/13 stormwater releases. However, Defendants concede that they do not seek coverage for these releases and that no timely claim was made under the 2013-14 policies. Under these facts, the Court agrees with Admiral that no basis exists for its continued defense of Defendants under the 2013-14 EIL policy. The Court declines to address Admiral’s alternative arguments that both EIL policies are void ab initio in light of its determination that the Dual Entities are precluded from coverage under both EIL policies.
Admiral argues that the Dual Entities made material misstatements in their 4 CPL policy applications by “failing to truthfully answer questions regarding their compliance with Montana environmental laws, their knowledge of Montana DEQ’s multiple Warning and Violation Letters, their knowledge of the Harmons’ allegations of pollution at the Bainville Site, and their knowledge of the pollution at the Bainville Site.” It asserts that it issued the CPL policies in specific reliance on representations in the applications. No coverage exists under Louisiana law if the Dual Entities made material misstatements in their CPL policy applications. Duffy (ED La. 1993). Misrepresentations are considered “material” if they affect the insurer’s decision to issue the policy. Id. Louisiana law does not require strict proof of fraud to show that an applicant acted with intent to deceive. Id. A court can determine an intent to deceive from the attending circumstances that tend to show the insured’s knowledge of the falsity of the representations in the application and his recognition of the materiality thereof or from circumstances that create a reasonable assumption that the insured recognized the materiality of the misrepresentations. Id.
The 2012-13 CPL applications asked whether, in the past 3 years, any member of the application firm was “aware of any circumstances that could result in a claim, suit or notice of incident being brought against them?” Both DTI and DTT checked the “no” box in 2012 and neither supplied Admiral with the 9/17/12 DEQ Warning Letter. In their 2013-14 applications they again responded that they were not “aware of any circumstances that could result in a claim, suit or notice of incident being brought against them” and neither provided the 9/17/12 DEQ Warning Letter or any of the first 4 Violation Letters, each of which the Dual Entities had received in advance of submission of the applications. They also failed to provide information regarding the 3 stormwater releases at the Bainville Site in 7/13 or apprise Admiral of Harmons’ breach of contract letter in which they allege environment impairment at the Bainville Site.
Admiral insists that the sheer number of nondisclosures by the Dual Entities in their CPL applications support a conclusion that they acted deliberately to conceal this information, in recognition of the materiality of their misstatements, and that it would have declined issuance of the policies had they truthfully answered the questions. The Court agrees that the Dual Entities materially misrepresented their knowledge of the pollution conditions at the Bainville site in both the 2012-13 and 2013-14 CPL applications. Under terms of the policies, any duties that Admiral owes to the Dual Entities shall “terminate” as a result of a material misstatement. Admiral is entitled to summary judgment that it owes no duties to the Dual Entities under the 4 CPL policies because of their material misstatements and no duty to defend or indemnify them under the policies. The Court’s decision that the policies are void ab initio necessarily encompasses any CPL claims related to property damage incurred on the Bainville site and the Court therefore will not address these arguments by Admiral.
Admiral Ins. v. Dual Trucking et al, 44 MFR 244, 5/5/21.
Emma Mediak & Charles McNeil (Garlington, Lohn & Robinson), Missoula, for Admiral; Linda Deola (Morrison, Sherwood, Wilson & Deola), Helena, and KD Feeback (Toole & Feeback), Lincoln, for Defendants.