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ACE AMERICAN INSURANCE COMPANY v. FLORIDA BOW THRUSTERS, INC. et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
2:15-cv-00931 Search Pacer
Opposing Party: 
Ash Grove Cement Company
Court Type: 
Federal
US District Court: 
Western District of Washington
Date Filed: 
Jun 11 2015

1    In    and    for its Complaint, plaintiff Ash Grove Cement Company (“Ash Grove”) hereby
2    asserts, complains, and alleges as follows:

3    I.    NATURE    OF THE ACTION

4    '    1.1    This is a civil action for declaratory judgment. Ash Grove brings this action against
5    the defendant primary, excess, and umbrella insurance companies identified herein (collectively,
6    the “Insurers”) concerning insurance coverage for Ash Grove for defense and indemnity costs for
7    property and other damages and losses (including, but not limited to, remedial investigations,
8    feasibility studies, remedial designs and actions, natural resource assessments, injuries, and
9    damages, and environmental liabilities under the Comprehensive Environmental Response,
10    Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq., and Washington’s Model
11    Toxics Control Act (“MTCA”), chapter 70.105D RCW), arising from the alleged contamination of
12    the Lower Duwamish Waterway Superfund Site (the “Site”) in Seattle, Washington. Ash Grove
13    seeks a declaration of Ash Grove and its Insurers’ respective rights, duties, and obligations under
14    the Insurers’ respective insurance policies in connection with Ash Grove’s potential liabilities at the
15    Site.

16    II.    PARTIES

17    2.1    Plaintiff Ash Grove is a Delaware corporation licensed and authorized to do business
18    in the state of Washington. Ash Grove owns and operates a cement manufacturing and processing
19    plant and associated terminal and is the former lessee of a cement import terminal in Seattle,
20    Washington.
21    2.2    On information and belief, defendant Ace Property and Casualty Insurance
22    Company (“ACE P&C”) is a Pennsylvania insurance company and a successor in interest to Central
23    National Insurance Company of Omaha, a former Nebraska insurance company, that, at all times
24    relevant to this action, did transact business and issue property and casualty insurance in the state of
25    Washington.
1    2.3    On information and belief, defendant American Home Assurance Company
2    (“American Home”) is a New York insurance company that, at all times relevant to this action, did
3    transact business and issue property and casualty insurance in the state of Washington.
4    2.4    On    information and belief, defendant American Insurance Company (“American
5    Insurance”) is an Ohio insurance company that, at all times relevant to this action, did transact
6    business and issue property and casualty insurance in the state of Washington.
7    2.5    On information and belief, defendant Federal Insurance Company (“Federal
8    Insurance”) is an Indiana insurance company that, at all times relevant to this action, did transact
9    business and issue property and casualty insurance in the state of Washington.
10    2.6    On information and belief, defendant Lexington Insurance Company (“Lexington”)
11    is a Delaware insurance company that, at all times relevant to this action, did transact business and
12    issue property and casualty insurance in the state of Washington.
13    2.7    On information and belief, defendant Liberty Mutual Insurance Company (“Liberty
14    Mutual”) is a Massachusetts insurance company that, at all times relevant to this action, did transact
15    business and issue property and casualty insurance in the state of Washington.
16    2.8    On information and belief, defendant Oakwood Insurance Company (“Oakwood”) is
17    a Tennessee insurance company and a successor in interest to Central National Insurance Company
18    of Omaha, a former Nebraska insurance company, that, at all times relevant to this action, did
19    transact business and issue property and casualty insurance in the state of Washington.
20    2.9    On information and belief, defendant OneBeacon Insurance Company
21    (“OneBeacon”) is a Pennsylvania insurance company and a successor in interest to Houston
22    General Insurance Company, a former Texas insurance company, that, at all times relevant to this
23    action, did transact business and issue property and casualty insurance in the state of Washington.
24    2.10    On    information and belief, defendant TIG Insurance Company (“TIG”) is a
25    California insurance company and a successor in interest to International Insurance Company, a
26    former Illinois insurance company, that, at all times relevant to this action, did transact business and
27    issue property and casualty insurance in the state of Washington.
2.11    On information and belief, defendant Twin City Fire Insurance Company (‘Twin
City”) is an Indiana insurance company that, at all times relevant to this action, did transact
business and issue property and casualty insurance in the state of Washington.
2.12    On information and belief, defendant United States Fidelity & Guaranty Company
(“USF&G”) is a Connecticut insurance company that, at all times relevant to this action, did
transact business and issue property and casualty insurance in the state of Washington.
2.13    On information and belief, defendant United States Fire Insurance Company (“U.S.
Fire”) is a Delaware insurance company that, at all times relevant to this action, did transact
business and issue property and casualty insurance in the state of Washington.
2.14    On information and belief, defendant Westchester Fire Insurance Company
(“Westchester”) is a Pennsylvania insurance company and a successor in interest to International
Insurance Company, a former Illinois insurance company, that, at all times relevant to this action,
did transact business and issue property and casualty insurance in the state of Washington.
2.15    On information and belief, defendant Westport Insurance Corporation (“Westport”)
is a Missouri insurance company and a successor in interest to Employers Reinsurance Company, a
former Missouri corporation, that, at all times relevant to this action, did transact business and issue
property and casualty insurance in the state of Washington.

III. JURISDICTION AND VENUE

3.1    This Court has jurisdiction over the subject matter of this action pursuant to RCW
2.08.10    and RCW 7.24.010, and because the Site giving rise to the underlying liabilities is located
within the state of Washington, and the alleged occurrences occurred within the state of
Washington.
3.2    This Court has jurisdiction over each of the named defendant Insurers because, on
information and belief, each defendant Insurer is licensed and authorized to do business in the state
of Washington; has, within the relevant time periods, transacted the business of selling insurance in
the state of Washington; and has issued liability insurance policies to Ash Grove which cover risks
located in the state of Washington.
1    3.3    Venue is proper in King County pursuant to RCW 4.12.025 because one or more of
2    the defendants conducts business in King County, the events and property giving rise to the dispute
3    occurred in or are located in King County, and the majority of the operative facts that underlie Ash
4    Grove’s claims arose in King County.

5    IV. FACTUAL BACKGROUND

6    4.1    Ash Grove realleges and incorporates by reference all preceding paragraphs    as if
7    fully set forth herein.
8    A.    Lower Duwamish Waterway Superfund Site (the “Site”)
9    4.2    The Site is an approximate 5-mile stretch of the Duwamish River that flows    into
10    Elliott Bay and the Puget Sound in Seattle, King County, Washington. The Site includes the
11    waterway and upland sources of contamination to the waterway. The Lower Duwamish Waterway
12    (“LDW”) and adjacent upland areas have served as Seattle’s major industrial corridor since the
13    LDW was created by widening and straightening much of the Duwamish River in the early 1900s,
14    and industrial activities have been in existence along and in connection with the waterway
15    continuously since the early 1900s.
16    4.3    On information and belief, and as alleged by the United States Environmental
17    Protection Agency (“EPA”), historic industrial use of hazardous substances, and/or various spills
18    and other accidents involving such hazardous substances, along the waterway have resulted in the
19    release of hazardous substances into the environment and have left the waterway and sediments
20    contaminated with hazardous substances and toxic chemicals, resulting in pollution and property
21    damage.
22    4.4    In 2001, the EPA listed the Site on EPA’s National Priorities List. In 2002, the State
23    of Washington Department of Ecology (“Ecology”) added the Site to the Washington Hazardous
24    Sites List in 2002. On information and belief, hazardous substances associated with and released in
25    the course of historical industrial operations, and/or involved in various spills and other accidents
26    along the waterway, have led to pollution and resulting property damage in the waterway sediments
27    that include, but are not necessarily limited to, polychlorinated biphenyls (PCBs), dioxins/furans,
1    polycyclic aromatic hydrocarbons (“PAHs”), mercury and other metals, arsenic, and other
2    contaminants.
3    4.5    On information and belief, and as alleged by EPA, hazardous substances associated
4    with and released in the course of historical industrial operations, and/or involved in various spills
I
5    and other accidents along the waterway, entered the LD W through a variety of pathways, including
6    discharge through pipes, surface water or groundwater; discharge of materials directly into the
7    waterway; or soil erosion. On information and belief, these spills and releases have occurred
8    throughout the industrial use of the waterway, specifically including during the terms of the
9    Policies, as defined below, at issue in this action. On information and belief, since the
10    industrialization of the LDW in the early 1900s, hazardous substances are alleged to have been
11    released to the LDW and to have contributed to the Site contamination and resulting property
12    damage.
13    4.6    EPA and Ecology have divided lead-agency responsibility for addressing
14    contamination at the Site, with EPA taking lead agency status for the in-waterway portion of the
15    Site and Ecology taking lead agency status for upland source control.
16    4.7    In or around 2007, EPA notified over 100 companies, including Ash Grove, of their
17    status as a potentially responsible party (“PRP”) under CERCLA for Site liability.
18    4.8    On information and belief, four PRPs—the City of Seattle, King County, the Port of
19    Seattle, and the Boeing Company (collectively the “Lower Duwamish Waterway Group” or
20    “LDWG”) have performed a number of “early action” sediment cleanups in several of the most
21    contaminated sections of the river. On information and belief, the LDWG PRPs collectively have
22    spent in excess of $ 100 million for investigation, planning, and early-action cleanup, portions of
23    which they will seek to recover from other PRPs.
24    4.9    In or around 2013, the LDWG parties invited many of these PRPs to participate in
25    developing and participating in an alternate dispute resolution (“ADR”) process to allocate
26    responsibility for LDW Site liability. Ash Grove is participating in and defending itself in the ADR
27    process. Dozens of public and private entities representing historic or current owners or operators
of facilities along the waterway in Seattle, Washington, and with a nexus to the LDW are
participating in the ADR process.
4.10    In 2014, EPA issued the final LDW Site Record of Decision (“ROD”) documenting
the approved Site-wide sediment cleanup approach. On information and belief, EPA is continuing
to conduct sampling and remedial design work intended to inform and guide Site-wide cleanup.
EPA’s ROD estimates the Site-wide cleanup will cost $343 million.
4.11    Pursuant to the ROD, the site-wide cleanup will involve the dredging of
contaminated sediments from much of the river, the capping of less contaminated areas, and the
enhancement of natural sediment recovery by adding a carbon substrate to certain cap materials.
4.12    In addition to the Site-wide cleanup, Natural Resource Damage (“NRD”) Trustees
for the LDW Site have alleged that the historic disposal and release of hazardous substances at the
site have contributed to damages or injury to, destruction of, or loss of natural resources at the Site,
including the benthic community, flatfish, and salmon, particularly Chinook salmon and steelhead,
which are listed as threatened under the Endangered Species Act.
4.13    NRD Trustees for the LDW include the State of Washington, including Ecology (as
lead state trustee). Fish and Wildlife, and Natural Resources; the National Oceanic and
Atmospheric Administration of the U.S. Department of Commerce; and the U.S. Department of the
Interior, which includes the Fish and Wildlife Service and the Bureau of Indian Affairs, the
Muckleshoot Indian Tribe, and the Suquamish Tribe.
B. Ash Grove Property Ownership and Operations
4.14    Ash Grove is a family-owned company that manufactures portland cement,
operating in eight plants throughout the country, including in the state of Washington.
4.15    Ash Grove has owned, leased, and/or operated at facilities within the boundaries of
the LDW Site, in Seattle, Washington, and specifically at the following locations:
a.    From 1984 to present, Ash Grove, itself or through a wholly-owned
subsidiary, has owned and/or operated a portland cement manufacturing and processing plant and
associated terminal at real property located at 3801 East Marginal Way S., Seattle, Washington, and
1    within the boundaries of the LDW Site (the “Seattle Plant”). Ash Grove employs approximately 80
2    people in conjunction with its operations at the Seattle Plant, and the day-to-day operations are
3    managed locally by a Plant Manager. The Seattle Plant is located on the east side of the LDW at
4    River Mile 0.0 to 0.1. For purposes of this Complaint, the “Site” includes, but is not limited to, the
5    Seattle Plant.
6    b.    From 1987 to 1991, Ash Grove, itself or through a wholly-owned subsidiary,
7    leased and/or operated a cement import and distribution terminal located on a 6.53-acre parcel of
8    real property located at 5900 West Marginal Way S., Seattle, Washington, and within the
9    boundaries of the LDW Site (the “West Terminal”). During its operations, Ash Grove employed up
10    to approximately ten people in conjunction with its former operations at the West Terminal, and the
11    day-to-day operations were managed locally by a Terminal Manager and overseen by the Plant
12    Manager at Ash Grove’s Seattle Plant facility. The West Terminal was located on the west side of
13    the LDW at River Mile 1.4 to 1.5. For purposes of this Complaint, the “Site” includes, but is not
14    limited to, the West Terminal.
15    4.16 On information and belief, cement manufacturing and processing have been
16    conducted at the Seattle Plant property and facilities for over 85 years, and continuously since in or
17    around 1928, specifically including during the terms of the Policies, as defined below, at issue in
18    this action. On information and belief, former owners of and operators at the Seattle Plant property
19    used hazardous substances in connection with operations at the plant. During this operational
20    history, hazardous substances are alleged to have been released at and from the Seattle Plant subject
21    property and to have contributed to the Site contamination and resulting property damage.
22    4.17 On information and belief, industrial activities have been conducted at the West
23    Terminal property and facilities for over 80 years, and continuously since in or around 1930,
24    specifically including during the terms of the Policies, as defined below, at issue in this action. On
25    information and belief, former owners of and operators at the West Terminal property used
26    hazardous substances for use in connection with operations at the subject property, including, but
27    not necessarily limited to, activated charcoal and wheylerite production, chemical production,
1    including the production of resins for the plywood industry, as well as adhesives, glues, wood
2    preservatives (pentachlorophenol), plastic polymers, and other chemicals, and bulk cement import
3    and distribution. During this operational history, hazardous substances are alleged to have been
4    released at and from the West Terminal subject property and to have contributed to the Site
5    contamination and resulting property damage.
6    4.18 In 2007, EPA identified Ash Grove as a PRP with respect to the Site and provided
7    Ash Grove with a general notice letter of potential liability alleging Ash Grove to be a PRP under
8    CERCLA based on Ash Grove’s ownership and the historic activities associated with the Site. In
9    2012, EPA provided Ash Grove with a second general notice letter confirming its PRP status with
10    respect to the Site and its potential liability under CERCLA for the cleanup of the Site or the costs
11    EPA has incurred or will incur in cleanup of the Site.
12    4.19    In    2009, the NRD Trustees advised Ash Grove of their natural resource damage
13    claim against Ash Grove under CERCLA for damages arising from injuries to, destruction of, or
14    loss of publicly owned or managed natural resources resulting from the releases of hazardous
15    substances at the Site, including the Trustees’ costs in assessing those damages.
16    4.20    In    2013, the LDWG parties alleged that a portion of the total cleanup costs
17    associated with the Site would be allocated to Ash Grove and invited Ash Grove, and other PRPs,
18    to participate in an ADR allocation process to allocate responsibility for LDW liability. Ash Grove
19    is defending itself in the ADR process.
20    4.21    Ash    Grove has incurred and will incur damages, including defense and
21    indemnification costs for, among other things, the environmental cleanup of the Site and resulting
22    property damage; for natural resource damages; and for and in responding to the allegations by
23    EPA, Ecology, the NRD Trustees, and/or by other PRPs arising out of and related to the LDW Site,
24    including, but not limited to, the Seattle Plant and the West Terminal.
1    C.    Insurance Policies
2    4.22    The Insurers and/or their predecessors in interests sold primary, umbrella, and/or
3    excess liability insurance policies (collectively, the “Policies”) that provide insurance coverage to
4    Ash Grove.
5    4.23    On information and belief, the Insurers sold and issued to Ash Grove those Policies
6    identified on the attached Exhibit A, which insurance policies provide defense and indemnification
7    coverage for Ash Grove’s alleged liabilities for environmental contamination and hazardous waste
8    at the Site, which includes, without limitation, liabilities and losses associated with property
9    damage caused by an accident or occurrence.
10    4.24    On information and belief, the Insurers may have issued additional policies of
11    insurance to Ash Grove that have not yet been discovered, but may be discovered in the course of
12    discovery, which insurance policies provide defense and indemnification coverage for Ash Grove’s
13    alleged liabilities for environmental contamination and hazardous waste at the Site, which includes,
14    without limitation, liabilities and losses associated with property damage caused by an accident or
15    occurrence.
16    4.25    On information and belief, the Insurers were and are licensed in the state of
17    Washington and authorized to issue property and casualty insurance covering risks in the state of
18    Washington.
19    4.26    The Policies provide, without limitation, coverage for liabilities arising from
20    accidents or occurrences that occurred during the Policies’ respective term(s) and effective
21    period(s).
22    4.27    EPA, Ecology, the NRD Trustees, and/or other PRPs associated with the Site have
23    alleged Ash Grove to be liable for damages, including property damage, within the meanings of the
24    Policies.
25    4.28    Property damage and occurrences within the meanings of the Policies have occurred
26    or are alleged to have occurred at the Seattle Plant, the West Terminal, and/or otherwise at and
associated with the Site in Seattle, Washington, and which give rise to Ash Grove’s alleged
liabilities.
4.29    EPA, Ecology, the NRD Trustees, and/or other PRPs associated with the Site have
alleged Ash Grove to be liable for damages, including property damage, resulting from accidents or
occurrences at the Site generally, and not attributable to and which may pre-date and/or post-date
Ash Grove’s operations.
4.30    Ash Grove has given the Insurers notice of the claims against Ash Grove, and of its
alleged liabilities at and associated with the LDW Site.
4.31    Ash Grove has complied with or will comply with all conditions precedent in the
Policies.
4.32    Each Insurer is obligated under the terms of its insurance policies to defend or pay or
contribute to the cost of defense of such claims and actions, and for such future claims and actions,
brought by third parties, including, but not limited to, EPA, Ecology, the NRD Trustees, and/or
other PRPs, and to pay all losses and/or all sums that Ash Grove becomes legally obligated to pay
as a result of such claims and actions.
4.33    Defendant USF&G has agreed to and is contributing to Ash Grove’s costs of defense
of potential Site liabilities under a reservation of rights under two policies issued to Ash Grove:
Policy Number 1CC025144845, effective from January 1, 1984 to January 1,1985; and Policy
Number 1CC047821004, effective from January 1,1985 to January 1,1986 (collectively, the “1984
and 1985 USF&G Policies”).

V. CAUSE OF ACTION: DECLARATORY JUDGMENT

5.1    Ash Grove realleges and incorporates by reference all preceding paragraphs as if
fully set forth herein.
5.2    The Insurers have failed to recognize and provide all coverage to which Ash Grove
is entitled under each of their respective policies in connection with the Site.
5.3    Pursuant to chapter 7.24 RCW, Ash Grove is entitled to a declaratory judgment as to
the rights, duties, and obligations of the parties under the Policies in connection with the Site.
1    5.4    Specifically, Ash Grove is entitled to a declaratory judgment that (1) where provided
2    under the terms of the Policies (except for the 1984 and 1985 USF&G Policies, under which
3    USF&G has already agreed to and is contributing to Ash Grove’s costs of defense of potential Site
4    liabilities under a reservation of rights), the Insurers have an obligation to defend or pay full
5    defense costs in connection with the underlying claims, demands, suits, and/or proceedings against
6    Ash Grove arising out of the Site; (2) the Insurers have an obligation under each of their respective
7    policies to indemnify Ash Grove for its losses and liabilities, including cleanup costs and other
8    damages, associated with the Site; and (3) the Insurers have an obligation under each of their
9    respective policies to provide Ash Grove all other coverage to which Ash Grove is entitled in
10    connection with the Site.
11    5.5    An actual and justiciable controversy within the jurisdiction of the Court exists
12    between Ash Grove and the Insurers as to the rights, duties, and obligations of the parties under the
13    Policies (except with respect to USF&G’s defense obligations under the 1984 and 1985 USF&G
14    Policies, under which USF&G has already agreed to and is contributing to Ash Grove’s costs of
15    defense of potential Site liabilities under a reservation of rights) concerning the Site.
16    5.6    A judicial declaration is necessary and appropriate at this time so that Ash Grove
17    may ascertain the defense, indemnity, and other obligations of the Insurers in connection with Site.

18    VI.    PRAYER    FOR    RELIEF

19    WHEREFORE,    having    stated    the    above causes of action, plaintiff Ash Grove Cement
20    Company prays for judgment in its favor as follows:
21    A.    For declaratory relief against each of the Insurers, declaring that (1) where provided
22    under the terms of the Policies (except for the 1984 and 1985 USF&G Policies, under which
23    USF&G has already agreed to and is contributing to Ash Grove’s costs of defense of potential Site
24    liabilities under a reservation of rights), the Insurers have an obligation to defend or pay full
25    defense costs in connection with the underlying claims, demands, suits, and/or proceedings against
26    Ash Grove arising out of the Site; (2) the Insurers have an obligation under each of their respective
27    policies to indemnify Ash Grove for its losses and liabilities, including cleanup costs and other
1    damages, associated with the Site; and (3) the Insurers have an obligation under each of their
2    respective policies to provide Ash Grove all other coverage to which Ash Grove is entitled in
3    connection with the Site.
4    B.    For entry of judgment in favor of Ash Grove for the amount of all costs incurred by
5    Ash Grove in this action, including reasonable attorneys’ fees and costs pursuant to RCW 7.24.100;
6    Olympic Steamship Company v. Centential Insurance Company, 117 Wn.2d 37 (1991); or as may
7    otherwise be allowable pursuant to law or equity; and
8    C.    For such other and further relief as the Court deems just and equitable.
 

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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