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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
ith respect to the South Carolina site until after receiving the EPA's 1988 letter. Plaintiffs thus contend that the evidence in the record demonstrates the existence of a question of fact, and the trial court, therefore, impermissibly and erroneously weighed evidence and made credibility determinations.
We agree with plaintiffs that summary judgment on these facts is premature with respect to the Dixiana, South Carolina, site. See Krautsack v. Anderson, 329 Ill. App. 3d 666, 676-77, 768 N.E.2d 133, 143 (2002) (reversing summary judgment where the trial court's conclusion ignored the totality of evidence and merely focused upon a single statement taken out of context, which amounted to impermissible weighing of evidence or judgment of credibility). There is a genuine question of fact as to whether plaintiffs actually began defending against potential liability with respect to the Dixiana site prior to November of 1983. Furthermore, reasonable minds could disagree as to whether plaintiffs had knowledge prior to the inception of the policy of a substantial probability that claims would be made against them in connection with the Dixiana site, given that in 1978 a state court ordered operations at the Dixiana site to cease, by 1980 water contamination was confirmed, and the ongoing pollution problems in connection with the site were covered in local newspaper articles during the late 1970s and early 1980s.
Republic next argues that there are alternative grounds not reached by the trial court for affirming all summary judgment rulings. However, in its brief on appeal, Republic raises the two alternative grounds-breach of notice and voluntary payment provisions of the 1983-84 policy-only with respect to two of the seven sites at issue, the Erie and Hatfield, Pennsylvania, sites. In light of this apparent waiver of its arguments with respect to the remainder of the sites and because of our disposition of this case, specifically, our affirmance of the trial court's grants of summary judgment with respect to the Erie, Pennsylvania, site, we will only address Republic's arguments as they pertain to the Hatfield, Pennsylvania, site.
The 1983-84 policy contains the following conditions precedent to coverage:
"CONDITIONS
7. Notice of Occurrence. When an occurrence takes place, which, in the opinion of the insured, involves or may involve liability on the part of the Company, prompt written notice shall be given by or on behalf of the insured *. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the occurrence *. Failure to so notify the company of any occurrence which at the time of its happening did not appear to involve this policy but which, at a later date, would appear to give rise to a claim hereunder shall not prejudice such claim provided that notice is then given.
8. Assistance and Cooperation of the Insured. * The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the occurrence."
Republic argues that plaintiffs breached the relevant notice provisions because they did not provide Republic with notice of their claim for the Hatfield site until March of 1993, seven years after being named a potentially responsible party (PRP) and four years after allegedly having exhausted their self-insured retention under the policy. The record shows that as early as 1986, plaintiffs engaged in extensive negotiations with state and federal authorities, retained cou
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