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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
point to the fact that Urick's counsel advised it that there appeared to be no evidence against Urick or other foundries to link them to the Millcreek Landfill site. Moreover, plaintiffs maintain that because the EPA at that time refused to provide Urick with specific documentation or evidence that "affirmatively linked" Urick to the site, Urick did not learn about its connection with the site until "well after" the inception of the 1983-84 policy on November 1, 1983.
We uphold the grant of partial summary judgment with respect to the Erie, Pennsylvania, site. As previously stated, our supreme court held in Outboard Marine Corp. that, as a matter of law, the receipt of an administrative order from the EPA, similar in nature to the September 1983 EPA notice letter to Urick, gave an insured knowledge of substantial probability that claims would be made against it. Moreover, in July of 1983, Urick, in fact, received a copy of a complaint of the lawsuit filed against it and other defendants by landowners whose properties were in the vicinity of the Millcreek Landfill. Accordingly, there can be no question of fact, nor can reasonable persons draw divergent inferences, as to plaintiffs' knowledge of a substantial probability that claims could be made against Urick.
With respect to the South Carolina site, plaintiffs similarly contend that Therm-O-Disc was unaware, prior to the inception of the 1983-84 policy, of property damage caused by SCRDI's operations at the site. Plaintiffs claim that Therm-O-Disc first became aware of the existence of the site, let alone property damage at the site and the EPA's allegations of Therm-O-Disc's possible liability in connection with the site, when it received a notice letter from the EPA in December of 1988. Plaintiffs further claim that Therm-O-Disc had no reason to know about problems at the site prior to receiving the EPA's 1988 letter because it did not own the site and did not know that SCRDI had taken Therm-O-Disc's wastes to the site, nor was it party to litigation or administrative proceeding concerning the site.
Plaintiffs, however, concede that Therm-O-Disc's former senior environmental affairs employee had reported in a memorandum, dated February 25, 1991, total costs expended by Therm-O-Disc for the site since December 1982, the date the EPA placed the site on the National Priorities List. The portion of the memorandum relating to the site states, in pertinent part:
"Dixiana Site
This site appears to be a transfer station where waste was stored before it went to the Bluff Road landfill. Since 1982, this was listed as a superfund site by the EPA. Since 1982, we have incurred legal expenses of $38,928.00 defending [Therm-O-Disc's] position that their wastes were not disposed of at the Dixiana Site. No correspondence or activity since February 23, 1990." (Emphasis added.)
Plaintiffs, nevertheless, argue that the trial court erred in interpreting this evidence-consisting of a "single sentence taken out of context"-to mean that Therm-O-Disc actually began defending itself with respect to the site in December of 1982.
We observe that it may very well be that the date of 1982 was merely a reference point marking the year when the Dixiana, South Carolina, site was placed on the National Priorities (Superfund) List. The memorandum does not purport to state that costs were, in fact incurred in 1982 or 1983, prior to the inception of the policy. Plaintiffs also point out that the trial court was also presented with evidence to the contrary, such as the deposition of Therm-O-Disc's former outside environmental counsel, that Therm-O-Disc did not begin defending itself against potential liability w
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