ELR Citation: ELR 20859
No(s). 84-3675 (3d Cir. Aug 12, 1985)

The court holds that a suit to determine defendant's liability to indemnify for pollution damages resulting from releases of hazardous wastes from property leased by plaintiff to a third party is justicable and that summary judgment is inappropriate because material factual issues remain in dispute. The court first rules that the case is justiciable since the events relevant to the claim have all occurred. It is irrelevant that there has been no action to recover cleanup costs or damages relating to the contamination of ground and surface water by the pollution from plaintiff's land; to determine whether an insurance company has an obligation to indemnify, it is not necessary that the insured be immediately liable for damages or that damages have been liquidated. The court next holds that summary judgment is not appropriate. Facts necessary to resolve legal issues raised by the summary judgment motion are not in the record. It has not been decided whether the dumping or leaching of wastes, or the discovery of the resulting pollution is the "occurrence" triggering insurance liability, and the court cannot reach the issue because it is not clear from the record when wastes arrived at the site, leached off it, or were discovered in nearby ground or surface waters. Likewise, the court finds that the question of whether plaintiff "expected or intended" the pollution, thus negating coverage, raises factual issues not resolved in the record.

Counsel for Appellee
John R. Bozza, Ralph R. Riehl III
Riehl and Bozza
2580 W. 8th St., Erie PA 16505
(814) 838-7920

Counsel for Appellant
Francis J. McCarthy, James K. Killelea, David M. Cain
The Travelers Insurance Company
One Tower Square, Hartford CT 06183
(203) 277-7511

Counsel for Amicus Curiae
Henry John Kupperman, Stewart Dalzell, Timothy C. Russell
Drinker, Biddle, and Reath
1100 Philadelphia National Bank Bldg., Broad and Chestnut Sts., Philadelphia PA 19107
(215) 988-2700

Before Weis and Stapleton, JJ.