This is an appeal from a partial summary judgment, which dismissed a portion of the plaintiffs suit for coverage under a commercial pollution legal liability insurance policy. For the reasons that follow, we convert the appeal to an application for supervisory review, grant the writ, vacate the judgment, and remand.
The plaintiff, Bollinger Shipyards Lockport, L.L.C., contends that it was covered under a "Commercial Pollution Legal Liability" policy (Policy Number CPLL 9528211), issued by American International Specialty Lines Insurance Company, subsequently known as Chartis Specialty Insurance Company ("Chartis"),
The defendants filed answers to the plaintiffs action, admitting certain general facts, denying the claims, and setting forth more than forty affirmative defenses, which, in summary, raised contentions with respect to the claims made, in whole or in part, that: there was no obligation to the plaintiff and no cause of action had been stated; all necessary parties had not been joined; there was no coverage under the policy as the claims were barred by some twenty-two specified policy exclusions and/or provisions; all duties and obligations owed had been fulfilled or performed; and recovery was barred by prescription, prematurity, estoppel, the plaintiffs failure to mitigate or avoid damages, the unclean hands doctrine, the existence or application of policy limits, other insurance coverage, payments made by other parties, the failure of the plaintiff to perform obligations imposed by policy provisions, misrepresentation or mistake, and/or the failure of the plaintiff to assert its claims in compliance with the policy. In addition, Chartis asserted a reconventional demand against the plaintiff, alleging that some part of the plaintiffs liability arose from five facilities it purchased from Friede Goldman Halter, Inc., for which the insurance policy contained certain limitations of liability and exclusions. Further, Chartis alleged that certain other limitations of liability and exclusions were agreed upon by the parties, who intended that these other provisions be included in the insurance contract, but because of an error by the underwriter, these provisions were not included in the written contract; therefore, Chartis contended that it was entitled to have the contract reformed to reflect the intent of the parties in this respect.
During the course of these proceedings, a settlement agreement
In the CACO settlement, Bollinger Shipyards, Inc. further agreed to expend the following sums to reduce the amount of hazardous substances, pollutants, and/or contaminants being released into the environment at its facilities: $100,000 for a plural component airless spray painting system at its Bollinger Shipyards Lockport and Bollinger Marine Fabricators facilities; $56,000 for a sanitary wastewater treatment plant at its Bollinger Larose facility; $39,750 for a wastewater chlorination system, $405,700 for a vapor control flaring system at its Bollinger Calcasieu facility; $1,730,000 for work barge blasting screens at its Bollinger Amelia Repair, Bollinger Calcasieu, Bollinger Larose, Bollinger Morgan City, Bollinger Quick Repair, Bollinger Gulf Repair, and Bollinger Shipyards Lockport facilities; and $320,000 for abrasive blasting enclosures at its Bollinger Shipyards Lockport and Bollinger Gulf Repair facilities. Bollinger Shipyards, Inc. also agreed to expend sums for environmental compliance promotion, "system-wide," as follows: $2,600,000 for assessments and audits of supplemental compliance/permit activities; $450,000 for an "Oracle Portal VOC/NESHAP" program, to aid in volatile organic compounds tracking, reporting, and compliance assurance; $26,000 for a document imaging system, in conjunction with the Oracle Portal system, to protect accuracy and reliability of environmental data; and $1,800,000 for three new regional environmental coordinator positions to supplement its environmental staff and ensure that environmental issues are brought to the attention of upper management in a timely and comprehensive manner. The CACO settlement further provided, in Paragraph XXIII, that, in consideration of the agreements set forth, "any claims for penalties are hereby compromised and settled in accordance with the terms of this Settlement."
In 2008 the plaintiff filed two motions for partial summary judgment in this suit (the first motion was entitled "Motion for Partial Summary Judgment (Tank 02 Removal)" and the second motion was entitled "Motion for Partial Summary Judgment (CACO Settlement)"), contending that it was entitled to judgment in its favor under the terms of the policy of insurance issued by Chartis. In response, Chartis filed a cross motion for partial summary judgment (on the "CACO Settlement Claim"), contending that there was no coverage under the policy. Following a hearing on October 24, 2011, the trial court denied the plaintiffs "CACO Settlement" motion and granted the Chartis motion. A judgment was signed on November 7, 2011, dismissing the plaintiffs claims "against defendants in connection with [t]he CACO Settlement Claim only," with prejudice. The judgment further provided that "[n]o other allegations made in this matter are affected by this Judgment." The judgment was designated as final for purposes of appeal, pursuant to LSA-C.C.P. art. 1915(B).
The plaintiff has appealed the November 7, 2011 judgment, asserting that the trial court erred in granting the Chartis motion and in denying its motion. On appeal, the plaintiff argues, in summary, that the trial court should have found that the plaintiff's CACO settlement losses were covered under the Chartis policy and that Chartis was unreasonable in denying its claims, rendering Chartis liable for penalties, attorney fees, and interest, in accordance with LSA-R.S. 22:1892 and LSA-RS. 22:1973.
Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue.
The partial summary judgment entered in this case decided only some, but not all, of the issues under litigation between the parties. On this issue, LSA-C.C.P. art. 1915(A) provides:
Article 966(E) allows entry of a summary judgment that is dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case. Thus, it is clear that the judgment appealed in this case was not a final appealable judgment under LSA-C.C.P. art. 1915(A).
A partial summary judgment rendered pursuant to LSA-C.C.P. art. 966(E) may be immediately appealed during ongoing litigation only if it has been properly designated as a final judgment by the trial court, pursuant to LSA-C.C.P. art. 1915(B). Although a trial court may designate a partial summary judgment as final under Article 1915(B), that designation is not determinative of this court's jurisdiction. We must ascertain whether this court has appellate jurisdiction to review the partial judgment appealed from.
A trial court should give explicit reasons on the record as to why there is no just reason for delay; mere conclusory statements do not suffice.
Factors to be considered include but are not limited to: (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; and (5) miscellaneous facts such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense and the like.
After considering the factors set forth hereinabove for determining the validity of a trial court's designation of the finality of a judgment pursuant to LSA-C.C.P. art. 1915(B), and reviewing the record presented on appeal, we conclude that the judgment appealed is not of the type that would ordinarily be appropriate for immediate appeal. Although the other claims presented by the plaintiff in this case involve other incidents of "pollution conditions" (in addition to those addressed in the trial court's November 7, 2011 partial summary judgment), there is a relationship between the adjudicated and unadjudicated claims (since all claims are made under the same policy of insurance). Thus, there is a possibility that this court would need to review the same issues in the future (in contravention of the jurisprudential policy against piecemeal appeals) or that future developments in the trial court would moot the necessity of any review in the case (if the trial court were to reconsider its coverage ruling or if there were to be a settlement between the plaintiff and Chartis that encompassed the CACO settlement claim). And while we note the remarks made by counsel for the parties during the hearing on the motions for partial summary judgment, which indicated that a settlement of the other claims had been reached, there is nothing in the appellate record to confirm that the CACO settlement claims were all that remained to be adjudicated in the case. Therefore, we must conclude that the designation of the judgment as final for purposes of appeal in this case was inappropriate, in light of the unadjudicated related claims and the strong jurisprudential policy against piecemeal appeals.
Nevertheless, an appellate court has broad discretion to convert an appeal to an application for supervisory review, and because we find error in the trial court judgment, which in the interest of judicial economy should be corrected, we will convert this appeal to an application for supervisory writs.
Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate.
In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor.
On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted.
When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case.
An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent.
The policy at issue in this case affords the insured the right to recover under the policy for
A
Even though, under the policy,
Based on the policy language, coverage exists for the settlement of property damage (which includes natural resource damage and encompasses "injury to or destruction of, including the resulting loss of value of, land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources") resulting from pollution conditions; associated costs, charges, and expenses for investigation and adjustment of such a claim are also recoverable. Further, clean-up costs resulting from pollution conditions, along with associated costs, charges, and expenses for investigation and adjustment of such a claim, are covered under the policy; however, there is no expressly-stated coverage for the settlement of clean-up costs. The claims at issue were made by DEQ against various Bollinger entities, and fall within the definition of natural resource damage, at least in part,
As stated in the CACO settlement, the following DEQ notices, orders, and warning letters were encompassed by the agreement: (1) DEQ Environmental Tracking Number AE-PP-00-0176, a "Notice of Potential Penalty" issued to the plaintiff (Bollinger Shipyards Lockport, L.L.C.), for alleged air quality violations; (2) DEQ Environmental Tracking Number AE-PP-00-0306, a "Notice of Potential Penalty" issued to Bollinger Marine Fabricators, L.L.C., for alleged air quality violations; (3) DEQ Environmental Tracking Number AE-PP-00-0404, a "Notice of Potential Penalty" issued to Bollinger Calcasieu, L.L.C., for alleged air quality violations; (4) DEQ Environmental Tracking Number WE-CN-00-0326, a "Consolidated Compliance Order & Notice of Potential Penalty" issued to Gretna Machine and Iron Works, L.L.C. (now known as Bollinger Gretna, L.L.C.), for alleged wastewater discharge violations (into the State's waters of Bayou Barataria and the Harvey Canal); (5) DEQ Environmental Tracking Number MM-CN-00-0003, a "Consolidated Compliance Order & Notice of Potential Penalty" issued to Bollinger Morgan City, L.L.C., for alleged wastewater discharge violations (into the State's waters of Bayou Boeuf and the Intercoastal Canal); (6) DEQ Environmental Tracking Number AE-CN-01-0333, a "Consolidated Compliance Order & Notice of Potential Penalty" issued to Bollinger Marine Fabricators, L.L.C., for alleged air quality violations; (7) DEQ Environmental Tracking Number WE-L-01-0032, a "Warning Letter" issued to Bollinger Gulf Repair, L.L.C., for "areas of concern," following a facility inspection; (8) DEQ Environmental Tracking Number WE-L-03-0468, a "Warning Letter" issued to the plaintiff (Bollinger Shipyards Lockport, L.L.C.), for alleged effluent measurements above the permit limit (the location of the discharge was not specified); (9) DEQ Environmental Tracking Number WE-L-03-0470, a "Warning Letter" issued to Bollinger Larose, L.L.C., for alleged effluent measurements above the permit limit (the location of the discharge was not specified); (10) DEQ Environmental Tracking Number WE-L-01-0465, a "Warning Letter" issued to Bollinger Gulf Repair, L.L.C., for "areas of concern," following a facility inspection; and (11) DEQ Environmental Tracking Number AE-C-03-0363, a "Compliance Order" issued to the plaintiff (Bollinger Shipyards Lockport, L.L.C.), for alleged air quality violations.
These violation notices, orders, and warning letters reveal that the alleged instances of pollution compromised and settled by the 2004 CACO settlement agreement between DEQ and Bollinger Shipyards, Inc. involved air pollution, water pollution, effluent
The DEQ has been given jurisdiction over matters affecting the regulation of the environment within the State, including, but not limited to, the regulation of air quality, noise pollution control, water pollution control, the regulation of solid waste disposal, the protection and preservation of the scenic rivers and streams of the State, the regulation and control of radiation, the management of hazardous waste, and the regulation of those programs which encourage, assist, and result in the reduction of wastes generated within Louisiana. LSA-R.S. 30:2011. The DEQ has the authority to bring a civil action in the name of the State to recover any damages or penalties resulting from a violation of the State's Environmental Quality laws.
Furthermore, the coverage provisions of the policy do not place any restriction on what terms a settlement of property damage may include. For example, there is no requirement in the policy that a settlement be exclusively a sum of cash, nor is there a policy prohibition against a settlement agreement obligating an insured to pay amounts to State or local agencies or to private groups or organizations for environmental improvement or education. Similarly, the insurance policy does not prohibit a settlement agreement that compels an insured to implement measures on its own premises designed to end or reduce continuing pollution. Our interpretation of the insurance policy in this case leads to the conclusion that it is the nature of the claim being settled that determines coverage, not the individual obligations set forth in a settlement agreement.
In this case the claims brought against the Bollinger entities were the eleven DEQ violation notices, orders, and warning letters; therefore, it is the nature of these claims that is relevant to a determination of insurance coverage in this case, not the specific obligations undertaken in the agreement that compromises and settles these claims
However, we are unable to conclude, based on the record presented, that the plaintiff established that it was entitled to partial summary judgment in its favor on the issue of insurance coverage, particularly in light of the defense argument that the plaintiff, Bollinger Shipyards Lockport, L.L.C., was not the proper party to file the claims asserted against the defendants. On page one of the policy, the Declarations page, in "Item 1," the "NAMED INSURED" was listed as Bollinger Shipyards Lockport, L.L.C. In a "NAMED INSURED(S) ENDORSEMENT," the following additional insureds were named: Bollinger Shipyards, Inc.; Bollinger Larose, L.L.C.; Bollinger Algiers, L.L.C.; Bollinger Quick Repair, L.L.C.; Bollinger Fourchon, L.L.C.; Bollinger International, Inc.; Bollinger Morgan City, L.L.C.; Bollinger Marine Fabricators, L.L.C.; Bollinger Amelia Repair, L.L.C.; Bollinger Machine Shop, L.L.C.; CHAND, L.L.C.; Southern Selections, Inc.; Bollinger Gulf Repair, L.L.C.; Bollinger Houston, L.P.; Texas City Holdings, L.L.C.; Bollinger Calcasieu, L.L.C; Bollinger Gretna, L.LC.; Bollinger Houston (General) Assets, L.L.C.; Bollinger Texas City, L.P.; Houston Holdings, L.L.C.; Texas City (General) Assets, L.L.C.; Workplace Solutions, L.L.C.; Donald T. Bollinger; Charlotte A. Bollinger; Andrea Bollinger Suard; and Christopher B. Bollinger. Also on the "NAMED INSURED(S) ENDORSEMENT" page, the following was stated:
As stated hereinabove, DEQ's eleven enforcement notices, orders, and letters, which were compromised and settled in the 2004 CACO settlement, were directed to several Bollinger entities, including the plaintiff (Bollinger Shipyards Lockport, L.L.C.), but also to these other affiliated companies: Bollinger Calcasieu, L.L.C.; Bollinger Marine Fabricators, L.L.C.; Gretna Machine and Iron Works, L.L.C. (subsequently known as Bollinger Gretna, L.LC.); Bollinger Morgan City, L.L.C; Bollinger Gulf Repair, L.L.C.; and Bollinger Larose, L.L.C. Notably, the CACO settlement agreement was signed by DEQ and Bollinger Shipyards, Inc. (which apparently is the parent company of the other Bollinger entities
Although the term "insured," as used in the insurance policy in this case, can be interpreted to mean any of the named insureds listed in the policy, generally, the appropriate insured to file a claim under a policy of insurance is the particular insured or insureds who have suffered the loss. In this case, it would seem that the insured, Bollinger Shipyards, Inc., suffered the loss, as it was the entity that entered into the CACO settlement with DEQ, agreeing to undertake the obligations stated therein.
For the reasons assigned, we conclude that the November 7, 2011 trial court judgment was improperly designated as final for purposes of appeal; we convert this appeal to an application for supervisory review; and we grant the writ. We further vacate the trial court's November 7, 2011 partial summary judgment in favor of the defendant Chartis Specialty Insurance Company, and we remand this case to the trial court for further proceedings consistent with the foregoing. The assessment of costs for this converted application for supervisory review shall be made by the trial court upon rendition of a final judgment in this case.
There is no indication that the claims asserted herein were first made and reported during an Extended Reporting Period (which gives an insured, who has not secured a replacement policy of insurance, sixty days following the termination of coverage to give notice of claims first made and reported during the Extended Reporting Period, making such claims effective as of the last day of the policy period), and no other provision in the policy gives the first-listed named insured the right to act for the other insureds.
