Document Type

Article

Publication Date

3-13-1991

Abstract

Plaintiffs-appellants Ogden Corporation ("Ogden"), Avondale Industries, Inc. ("Avondale"), and Connell Limited Partnership ("Connell") (collectively "Appellants") appeal from a summary judgment entered in the United States District Court for the Southern District of New York (Patterson, J.) dismissing their action to declare that defendants-appellees The Travelers Indemnity Company ("Travelers") and American Motorists Insurance Company ("AMICO") owed a duty to defend and indemnify Appellants in connection with an action brought by Bethlehem Steel Corporation ("Bethlehem") in the United States District Court for the Central District of California. In the California suit, Bethlehem sought reimbursement for the environmental cleanup of property it had leased to Appellants. The district court held that Travelers had no duty to defend or indemnify Appellants because the allegations in the Bethlehem amended complaint fell within the terms of Travelers' pollution exclusion clause, and that Appellants "failed to give AMICO timely notice of the possibility of a claim," such notice being a condition precedent for liability under its policy. Ogden Corp. v. Travelers Indem. Co., 739 F.Supp. 796, 798, 804 (S.D.N.Y.1989).

On appeal, Appellants contend that the allegations in the Bethlehem amended complaint do not preclude an interpretation consistent with the possibility that the discharges leading to the contamination on the leased property were both "sudden and accidental"; that the phrase "sudden and accidental" in the Travelers pollution exclusion clause should be interpreted to mean "unexpected and unintended"; and that the district court erred in finding that Appellants failed to satisfy the notice-of-occurrence provision in AMICO's insurance policy. For the reasons that follow, we affirm the judgment of the district court.

Comments

924 F.2d 39 (1991)

OGDEN CORPORATION, Avondale Industries, Inc. and Connell Limited Partnership, Plaintiffs-Appellants,

v.

The TRAVELERS INDEMNITY COMPANY and American Motorists Insurance Company, Defendants-Appellees.

The TRAVELERS INDEMNITY COMPANY, Third-Party Plaintiff-Appellee,

v. EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company and National Union Fire Insurance Company, Third-Party Defendants-Appellees.

No. 582, Docket 90-7613.

United States Court of Appeals, Second Circuit.

Argued November 14, 1990.

Decided January 22, 1991.

Order Sur Petition for Rehearing March 13, 1991.

New York Law School location: File #1098, Box #127

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