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Aetna Casualty & Surety Co.3/8/2002
he language does not further define or restrict radioactive contamination by reference to the Price- Anderson Act. We cannot supply that missing terminology by judicial fiat in order to bolster this line of reasoning. We agree with the trial court's finding that the policies do not require any certain level of radioactive contamination in order to trigger coverage.
Exclusion (f): The "on-site" Exclusion
In its final argument pertaining to coverage, ANI contends that the trial court erred in failing to apply Exclusion (f). In the Facility Form policy, Exclusion (f) excluded coverage for "property damage to any property" at Maxey Flats. In the S&T;policies, Exclusion (f) excluded payment for damages to property at any nuclear facility. The trial court concluded that the "on-site" exclusions did not apply to response costs to prevent damage to third-party property. We believe that the trial court was correct in its interpretation of the policies.
ANI contends that the liability policies which it issued to the appellees were not designed to provide first-party coverage to pay for damage to the insureds' property used in connection with the storage or transportation of nuclear wastes. This point is not in dispute. The appellees did not seek to recover for damage to their own property - but rather to recover the liability imposed on them by the federal government for damage already done to the environment and for prevention of further environmental damage. See Anderson Development Company v. Travelers Indemnity Company, 49 F.3d 1128, 1134 (6th Cir. 1995); and Patz v. St. Paul Fire & Marine Insurance Co., 15 F.3d 699 (7th Cir. 1994). Exclusions must be strictly construed in order to afford coverage. The overwhelming weight of authority that we have reviewed favors coverage under liability policies for remediation expenses - notwithstanding this type of exclusion - when the intent is to prevent additional harm to the property of others or to public waters. See, e.g., Intel Corporation v. Hartford Accident and Indemnity Co., 952 F.2d 1551 (9th Cir. 1991); Gerrish Corp. V. Universal Underwriters Insurance Co., 947 F.2d 1023 (2nd Cir. 1991). We find no error on this issue.
ANI's Remaining Issues
In addition to the coverage issues, ANI contends that the trial court made several other erroneous rulings. We have examined each and have found no merit in any of these allegations of error.
As noted earlier, the issue of when the damages occurred was tried to the court by agreement of the parties. This issue was relevant to the appropriate amount of ANI's exposure under the policies. Beginning in 1963, the limit of ANI's liability under the Facility Form policy was one million dollars; the policy's limit was increased to ten million during the period from 1976 to 1982; thereafter, until the policy terminated in 1993, the limit of liability was reduced to five million dollars. Similarly, Hittman's S&T;policy had an initial liability limit in 1977 of two million dollars, which increased to five million from 1980 until the policy terminated in 1982.
In an effort to minimize its liability, ANI attempted to draw some time-lines on the activities at Maxey Flats. December 1975 was the last month of the one-million-dollar limit under the Facility policy and preceded issuance of Hittman's S&T;policy. ANI sought to establish that by this date, the water and leachate in the trenches had already reached a level sufficient to require the remediation later ordered by the EPA.
However, the appellees countered with evidence that the damage resulting from the burial of nuclear wastes at Maxey Flats was caused on a continuous and on
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