Boston Gas Company v. Century Indemnity , 529 F.3d 8 ( 2008 )


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  •              United States Court of Appeals
    For the First Circuit
    No. 07-1452
    BOSTON GAS COMPANY,
    d/b/a KEYSPAN ENERGY DELIVERY,
    Plaintiff, Appellee,
    v.
    CENTURY INDEMNITY COMPANY,
    Defendant, Appellant.
    __________
    CERTAIN UNDERWRITERS AT LLOYD'S LONDON;
    CERTAIN LONDON MARKET INSURANCE COMPANIES;
    TRAVELERS CASUALTY AND SURETY COMPANY;
    ASSOCIATED ELECTRIC & GAS INSURANCE SERVICES LIMITED;
    AETNA CASUALTY & SURETY COMPANY;
    THE HARTFORD INSURANCE COMPANY,
    Third-Party Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Rya W. Zobel,    U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Selya, Senior Circuit Judge,
    and Gelpi,* District Judge.
    *
    Of the District of Puerto Rico, sitting by designation.
    Guy A. Cellucci with whom Shane R. Heskin, White & Williams
    LLP, David B. Chaffin and Hare & Chaffin were on brief for
    appellant.
    David L. Elkind with whom John A. Gibbons and Dickstein
    Shapiro LLP were on brief for appellee.
    William G. Passannante, Eugene R. Anderson, Anderson Kill &
    Olick, P.C., Amy Bach and Law Offices of Amy Bach on brief for
    United Policyholders, Amicus Curiae.
    Robert J. Gilbert and Gilbert & Renton LLC on brief for
    Invensys Systems, Inc., Amicus Curiae.
    June 10, 2008
    BOUDIN, Chief Judge.      This is a dispute between Boston
    Gas Company ("Boston Gas"), the largest provider of natural gas in
    the New England area, and one of its insurers, Century Indemnity
    Company ("Century").        Before natural gas became the primary source
    of   energy     in   New   England,   Boston   Gas   produced   gas   fuel    at
    facilities called manufactured gas plants, known in the industry as
    "MGPs".       These MGPs created gas by heating coal in large ovens,
    generating gas which was then purified and piped out for use.
    This process also produced a variety of byproducts,
    including ash, drip oil, tar and coke.          Many are non-biodegradable
    and some are deemed carcinogenic, and they now contaminate the
    ground and water around many former MGP sites; further, MGPs were
    often sited near waterways which were contaminated in turn.1                 See
    EnergyNorth Natural Gas, Inc. v. Century Indem. Co., 
    452 F.3d 44
    ,
    46-47 (1st Cir. 2006).           Contamination has been discovered at
    twenty-nine former Boston Gas MGPs; this case concerns only one of
    those sites, located in Everett, Massachusetts.
    Boston Gas operated the Everett MGP from 1908 until
    approximately 1969; the MGP produced manufactured gas and also
    processed coke oven gas purchased from a nearby coke plant.                   In
    1995,     a   routine   investigation   uncovered    contamination     at    the
    1
    The main contaminant in this case was tar--the chief liquid
    byproduct of manufactured gas production. At nearly all MGP sites
    some tar escaped confinement and leaked into the environment; once
    that leakage occurs, tar tends to migrate and to contaminate soils
    and groundwater beyond the borders of the facility's site.
    -3-
    Everett site.   Although the Everett site had been sold to a new
    owner (DOMAC, LLC) in 1970, Boston Gas was nevertheless strictly
    liable under Massachusetts law for all costs associated with the
    investigation and cleanup of the contamination caused by the MGP's
    operations.
    Boston    Gas   had    purchased   three    general   commercial
    liability insurance policies from Century covering the period from
    December 1, 1951, through December 1, 1969.           Each policy contained
    a self-insured retention ("SIR")--essentially a deductible--of
    $100,000 for each occurrence resulting in personal injury or
    property   damage.     Above     the   deductible   amount,   the   policies
    provided that Century would cover Boston Gas' "ultimate net loss"
    up to the applicable limits of the policies for any liabilities
    stemming from bodily injury, property damage, or other harm caused
    by an "occurrence."    An "occurrence," said the policies, was
    an accident, including injurious exposure to
    conditions, which results, during the policy
    period, in property damage neither expected
    nor intended from the standpoint of the
    [i]nsured.
    After Boston Gas investigated and began to clean up the
    contaminated soils and groundwater at and near the Everett site,
    Boston Gas warned Century that it might seek indemnification.
    Century "reserved its rights," and on October 22, 2002, Boston Gas
    filed a diversity law suit against Century in the federal district
    court, seeking a declaratory judgment as to Century's obligations
    -4-
    under the policies and damages for its breach thereof.   A three-
    week long jury trial followed, focusing upon the Everett site.2
    Boston Gas argued in the district court that to recover
    under the policies, it needed to prove only that an occurrence had
    caused some off-site property damage during the policy periods--
    off-site because the policy had an "owned property" exclusion for
    damage to Boston Gas' own property.   Off-site damage, in Boston
    Gas' view, required Century to indemnify Boston Gas for all its
    liabilities connected to the occurrence.   Century responded that
    various exclusions contained in the policies precluded or limited
    indemnification.
    Importantly, Century argued that Boston Gas was well
    aware by 1951 that pollution from the Everett MGP was causing
    property damage at or near the site; the costs were therefore
    barred by an exclusion requiring that the property damage be
    "neither expected nor intended" by the insured.      Century also
    argued that Boston Gas improperly sought to recover costs expended
    to repair and improve the Everett site itself, rather than to
    remediate or prevent off-site property damage.
    At trial, the jury awarded Boston Gas over $6.1 million
    in past remediation expenses; the district court also issued a
    2
    The other twenty-eight Boston Gas MGPs remain the subject of
    a larger dispute. Boston Gas intends to use the outcome of the
    Everett trial as an exemplar to establish its rights against
    Century with respect to the other sites.
    -5-
    declaratory judgment obligating Century to pay all future costs
    associated with the investigation and environmental cleanup of the
    Everett site.     Century now appeals on multiple grounds from the
    district court's judgment.      As usual, the standard of review
    depends on the issue.    Indianapolis Life Ins. Co. v. Herman, 
    516 F.3d 5
    , 8 (1st Cir. 2008).
    Allocation among insurers.   Century's most far-reaching
    claim is that the district court should have limited Century's
    liability by allocating Boston Gas' liabilities among all insurers
    from whom Boston Gas had purchased general commercial liability
    insurance during the Everett MGP's lifespan.      Century insured
    Boston Gas under various policies from 1951-1969,3     while other
    insurers covered Boston Gas during other periods of its century-
    long operation.
    Century does not now dispute the jury's finding that the
    Everett site suffered contamination during the 1951-1969 time
    period.   Indeed, contamination seemingly occurred over a much
    longer period, even though no findings were made as to duration.
    Rather, renewing an argument made in the district court, Century
    says that manifestly not all of the damage could have been caused
    3
    The terms of the policies varied. The 1960-66 policy had a
    per occurrence limit of $1 million and a SIR of $100,000.      The
    1966-69 policy contained a limit of $17 million and a SIR of
    $100,000. The 1951-60 policy was lost, but the jury found that the
    policy had a $1 million policy limit in 1951 and from 1955-1960,
    and a limit of $500,000 from 1952-1954. The jury did not determine
    the lost policy's self-insured retention limits.
    -6-
    during its limited period of insurance and its liability should be
    no more than its proportionate share.    It also urges that its share
    should be spread among its various policy years.4
    The district court instead applied a method of allocation
    referred to in the doctrine as the joint and several, or "all
    sums," approach and permitted Boston Gas to recover from Century
    its total clean-up liability--subject only to the SIR and policy
    limit--under any one of its policies in place between 1951 and
    1969.      Not surprisingly, Boston Gas selected the policy with the
    highest coverage limit--$17 million--and Century was held fully
    liable for $6,227,327.90 in damages, less that policy's $100,000
    SIR.
    On appeal, arguing for pro rata allocation, Century
    highlights the policy language--the underscoring is ours--defining
    an occurrence as "an accident . . . which results, during the
    policy period, in property damage."       It asserts that it is not
    responsible for damage that occurred outside of the policy period,
    so proration among insurers is required.     Boston Gas counters that
    the policy says nothing about proration, so given an occurrence--
    which includes "continuous or repeated exposure to substantially
    4
    In substance Century wants any award reduced by its policies'
    self-insured retention of $100,000 for each year of contamination,
    arguing that this approach is consistent with Massachusetts'
    requirement that an insured exhaust all available underlying
    primary insurance.      A.W. Chesterton Co. v. Mass. Insurers
    Insolvency Fund, 
    838 N.E.2d 1237
    , 1254 (Mass. 2005).
    -7-
    the same general conditions"--within the policy period, Century is
    liable for the "'ultimate net loss' mean[ing] the sum actually paid
    or payable" by the insured.
    This   dispute    commonly   arises    in   the   context    of
    environmental damage and toxic exposure disputes--so-called "long-
    tail" indivisible injuries attributable to ongoing events without
    a single clear "cause."     See Russ & Segalla, 15 Couch on Insurance
    § 220:25 (3d ed. 2007).     The language of traditional comprehensive
    general liability policies--drafted before such law suits became
    common--does not neatly map onto these types of injuries.        Hickman
    & DeYoung, Allocation of Environmental Cleanup Liability Between
    Successive Insurers, 
    17 N. Ky. L. Rev. 291
    , 292 (1990).
    Competing methods have emerged.       Some courts have deemed
    insurers fully liable--normally, jointly and severally--for all
    damages attributable to an occurrence, exposure or contamination
    that happened at least in part during the coverage period.             See
    Keene Corp. v. Ins. Co. of N. Am., 
    667 F.2d 1034
    , 1050 (D.C. Cir.
    1981). Others have prorated an insurer's liability, based largely,
    but not always exclusively, on the number of years during which
    coverage was offered.       See Ins. Co. of N. Am. v. Forty-Eight
    Insulations, Inc., 
    633 F.2d 1212
    , 1224-25 (6th Cir. 1980); Owens-
    Illinois, Inc. v. United Ins. Co., 
    650 A.2d 974
    , 993-94 (N.J.
    1994).   The parties agree that Massachusetts law governs here.
    -8-
    Unfortunately, the Massachusetts Supreme Judicial Court
    has not yet resolved this allocation question, A.W. Chesterton Co.
    v. Mass. Insurers Insolvency Fund, 
    838 N.E.2d 1237
    , 1242 n.3 (Mass.
    2005) (expressly reserving the issue), so our choices are two: we
    can make our best guess on this de novo review issue, or we can
    certify the question and ancillary issues to the SJC.               The first
    path offers the benefit of expedition but with a risk of error; the
    second path, the reverse.5
    Although    there   is    one   Massachusetts   Appeals     Court
    decision on point, its treatment of the choice between the two
    allocation methods is cursory.         Rubenstein v. Royal Ins. Co. of
    Am., 
    694 N.E.2d 381
    , 388 (Mass. App. Ct. 1998); see also Chicago
    Bridge & Iron Co. v. Certain Underwriters at Lloyd's, London, 
    797 N.E.2d 434
    , 441-45 (Mass. App. Ct. 2003) (adopting joint and
    several allocation, but as a matter of Illinois law).             Nor is there
    a   clear   consensus   among   the    states   as   to   which    method   is
    preferable. A growing plurality have adopted some form of pro rata
    5
    Century sought certification of the allocation question
    before the district court.     The district court stated that it
    believed itself to be "compel[led]" by Rubenstein v. Royal
    Insurance Co. of America, 
    694 N.E.2d 381
    , 388 (Mass. App. Ct.
    1998), to adopt the joint-and-several approach, but based its
    denial of the motion on the fact that the allocation question was
    not   outcome   determinative.   See   Mass.  S.J.C.  Rule   1:03
    (certification appropriate only when the disputed question of law
    "may be determinative of the cause").
    -9-
    allocation,6 but a significant number of courts impose joint and
    several allocation.7
    Nor   do     policy   arguments   line    up   solely behind one
    solution.    At first blush it may seem illogical to hold a single
    insurer, who may have only covered the insured for a single year,
    fully liable for the costs of environmental damage that may have
    accrued over the course of a century.           But that insurer can seek
    contribution      from    other   insurers    "on    the   risk"   during   the
    contamination period.        See, e.g., Goodyear Tire & Rubber Co. v.
    Aetna Cas. & Sur. Co., 
    769 N.E.2d 835
    , 841 (Ohio 2002).               And the
    alternative may force the insured to sue numerous companies in one
    suit, if this is possible at all, to avoid inconsistencies.
    6
    See EnergyNorth Natural Gas, Inc. v. Certain Underwriters at
    Lloyd's, 
    934 A.2d 517
    , 526 (N.H. 2007); Aetna Cas. & Sur. Co. v.
    Commonwealth of Kentucky, 
    179 S.W.3d 830
    , 842 (Ky. 2005); Sec. Ins.
    Co. of Hartford v. Lumbermens Mut. Cas. Co., 
    826 A.2d 107
    , 121
    (Conn. 2003); Atchison, Topeka & Santa Fe Ry. Co. v. Stonewall Ins.
    Co., 
    71 P.3d 1097
    , 1134 (Kan. 2003); Consol. Edison Co. of N.Y. v.
    Allstate Ins. Co., 
    774 N.E.2d 687
    , 695 (N.Y. 2002); Pub. Serv. Co.
    of Colo. v. Wallis & Cos., 
    986 P.2d 924
    , 935 (Colo. 1999); Domtar,
    Inc. v. Niagara Fire Ins. Co., 
    563 N.W.2d 724
    , 732 (Minn. 1997);
    Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 
    931 P.2d 127
    , 140-42
    (Utah 1997); Owens-Illinois, 650 A.2d at 993-94.
    7
    See Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 
    769 N.E.2d 835
    , 841-42 (Ohio 2002); Hercules, Inc. v. AIU Ins. Co., 
    784 A.2d 481
    , 494 (Del. 2001); Allstate Ins. Co. v. Dana Corp., 
    759 N.E.2d 1049
    , 1058 (Ind. 2001); Am. Nat'l Fire Ins. Co. v. B & L
    Trucking & Constr. Co., 
    951 P.2d 250
    , 256-57 (Wash. 1998); J.H.
    France Refractories Co. v. Allstate Ins. Co., 
    626 A.2d 502
    , 507-08
    (Pa. 1993).
    -10-
    Either method forces courts to indulge in a probable
    fiction as to when the event triggering coverage occurred. The pro
    rata method assumes an ongoing occurrence causing stable amounts of
    damage over time; the joint and several method pretends, even less
    plausibly, that a single occurrence caused all the damage, and
    allows the insured effectively to choose the year in which that
    happened.    Both are crude approximations made under conditions of
    uncertainty.
    Pro rata allocation is generally favored by insurers;
    insureds    usually   prefer   joint   and   several   allocation   as   it
    alleviates the need for multiple defendants and possibly multiple
    lawsuits.    Yet in those jurisdictions that employ the joint and
    several method, but limit the insured to making a claim against a
    single policy--a method sometimes referred to as joint and several
    allocation without stacking, Am. Physicians Ins. Exch. v. Garcia,
    
    876 S.W.2d 842
    , 853-54 (Tex. 1994)--the insured may collect less
    than it would have under pro rata allocation. Bratspies, Splitting
    the Baby: Apportioning Environmental Liability Among Triggered
    Insurance Policies, 
    1999 BYU L. Rev. 1215
    , 1258.
    Each method also has secondary implications, which courts
    have variously viewed as more or less desirable.          One example is
    so-called "orphan shares," i.e., damages attributable to years
    during which the insured "went bare" or purchased coverage from a
    now-insolvent insurer.     Pro rata allocation usually (although not
    -11-
    inevitably) treats the insured as self-insuring for those years, a
    result that some courts view (appropriately) as preventing a
    windfall, EnergyNorth, 
    934 A.2d at 526
    ; others as (inappropriately)
    depriving the insured of expected protection.        Keene, 
    667 F.2d at 1048-49
    .     The two approaches also differ in the incentives they
    create for settlements, in their tendency vel non to consolidate
    litigation   in   one   case,   and   in   their   treatment   of    policy
    deductibles and excess insurance policies.
    For example, under pro rata allocation, the insured will
    seek coverage from each insurance policy in effect during the
    contamination period and is likely to absorb the self-insurance
    retentions of each policy, Pub. Serv. Co. of Colo. v. Wallis &
    Cos., 
    986 P.2d 924
    , 941 (Colo. 1999), while excess insurance
    policies offering coverage only for damages above that prorated
    amount will not be triggered. By contrast, under joint and several
    liability all damages are attributable to a single year; ordinarily
    the insured is responsible for a single deductible and, given the
    large sums ordinarily sought, it becomes more likely that excess
    insurance will be activated.
    That a legal issue is close or difficult is not normally
    enough to warrant certification, or else diversity cases would
    regularly require appellate proceedings in two courts.              But the
    dollar amounts involved in this and the follow-on cases for other
    sites are very large (see note 2, above); and the allocation method
    -12-
    could easily matter in future cases not involving these parties.
    Although Massachusetts judicial policy is often favorable to the
    insured, at least in consumer cases, sister courts in New York, New
    Hampshire and Connecticut have adopted the pro rata approach.   See
    note 6, above.
    Perhaps the strongest argument for certification is that
    even within the two broad schools of thought, there are additional
    nuances complicating any prediction by us of Massachusetts law.
    For instance, in joint and several allocation courts divide on
    whether an insured is allowed to "stack" multiple policies to
    obtain coverage for all their damages; for pro rata allocation,
    some courts allocate damages based purely upon the number of years
    of coverage, while others allocate based on both years and amounts
    of coverage offered.8
    Because we have found no controlling SJC precedent on the
    allocation question and the issue is determinative of the scope of
    Boston Gas' claim, we will certify the questions set forth at the
    8
    Compare Keene, 
    667 F.2d at 1049
     (allowing insured to seek
    coverage only under a single policy), with J.H. France, 626 A.2d at
    509 (adopting joint and several allocation with stacking), and
    compare Pub. Serv. Co. of Colorado, 986 P.2d at 942 (proration by
    years), with Owens-Illinois, 650 A.2d at 993 (proration by years
    and   limits).   See  Gillespie,    The  Allocation   of   Coverage
    Responsibility Among Multiple Triggered Commercial General
    Liability Policies in Environmental Cases: Life After Owens-
    Illinois, 
    15 Va. Envtl. L.J. 525
    , 535 (1996) (listing various
    permutations of the pro rata and joint several allocation methods).
    -13-
    close of this decision to the Massachusetts Supreme Judicial Court
    in accordance with Mass. S.J.C. Rule 1:03.
    Apportionment of recoverable costs.        We now turn to a
    connected pair of issues: Century's claim that the district court
    failed properly to instruct on the "owned-property exclusion"
    contained   in   Century's   policies9   and   its   separate   claim   for
    judgment as a matter of law as to costs incurred incident to
    DOMAC's expansion project. The issues both relate to apportionment
    between recoverable and unrecoverable costs and both relate in part
    to the DOMAC construction.
    Review of the legal correctness of an instruction is de
    novo, Cigna Ins. Co. v. Oy Saunatec, Ltd., 
    241 F.3d 1
    , 8 (1st Cir.
    2001), with deference as to phrasing and emphasis, United States v.
    Teemer, 
    394 F.3d 59
    , 63 n.2 (1st Cir. 2005).          On appeal from the
    denial of a motion for judgment as a matter of law, the question
    usually is whether, drawing all inferences in favor of the verdict,
    the evidence permitted a reasonable jury to render a verdict
    adverse to the moving party.    FHS Props. Ltd. P'ship v. BC Assocs.,
    
    175 F.3d 81
    , 85 (1st Cir. 1999).
    9
    Boston Gas argues that claims of jury misinstruction were not
    adequately preserved.    Having read the pertinent parts of the
    record, we are satisfied that Century made its objections clear at
    the charge conference, as required by Fed. R. Civ. Pro. 51(c) and
    the case law. See Suprenant v. Rivas, 
    424 F.3d 5
    , 15 (1st Cir.
    2005).
    -14-
    Each of the policies Boston Gas purchased from Century
    contained a clause stating that "[t]his policy does not apply . .
    . to property damage to . . . property owned by the [i]nsured."
    Such clauses--like other exclusions--provide the insurer with an
    affirmative defense to liability, placing the burden on the insurer
    to exclude damage otherwise recoverable.         Allmerica Fin. Corp. v.
    Certain Underwriters at Lloyd's, London, 
    871 N.E.2d 418
    , 425 (Mass.
    2007).     However, this does not mean that costs of remediation of
    the Everett site itself are automatically excluded.
    The   governing    Massachusetts    decision   on    the   owned-
    property    exclusion   in    environmental    spill   cases    is   Hakim   v.
    Massachusetts Insurers' Insolvency Fund, 
    675 N.E.2d 1161
     (Mass.
    1997).     There the court held that when pollutants have migrated
    from the insured's property to an adjacent property--or perhaps
    even when the threat of such migration is imminent--"coverage [to
    remediate the insured's property] is not barred if the [on-site]
    cleanup is designed to remediate, to prevent or to abate further
    migration of contaminants to the off-site property."             
    Id.
     at 1164
    & n.8 (emphasis added).10
    The special verdict form asked the jury: "Was the cost of
    remediation at the Everett site incurred solely to clean up the
    10
    Accord Patz v. St. Paul Fire & Marine Ins. Co., 
    15 F.3d 699
    ,
    705 (7th Cir. 1994) (Wisconsin law); Intel Corp. v. Hartford
    Accident & Indem. Co., 
    952 F.2d 1551
    , 1565-66 (9th Cir. 1991)
    (California law); Gerrish Corp. v. Universal Underwriters Ins. Co.,
    
    947 F.2d 1023
    , 1030-31 (2d Cir. 1991) (Vermont law).
    -15-
    property of Boston Gas Company, as opposed to eliminating and/or
    avoiding, at least in part, contamination of ground water or
    adjacent property?"       A "yes" answer would have barred recovery; a
    "no" answer--which the jury returned--required the jury to specify
    "the amount Boston Gas Company has been legally obligated to pay
    for the investigation and cleanup as a result of the property
    damage at the Everett site caused during the years for which it had
    coverage."
    Century correctly says that the special verdict form
    (standing alone) could easily have led the jury to conclude that
    once some of the on-site remediation was justified to cope with
    actual    or    threatened   off-site   pollution,     all    of   the   on-site
    remediation       costs   were   covered    by   the   policy.       The   oral
    instructions suggest that this was likely not the intended result.11
    But while an instruction might sometimes be so clear as to control
    an ambiguous special verdict form, here the special verdict form
    demanded an all-or-nothing award.
    Boston Gas says that it proved off-site contamination,
    but this is not an answer to a claim that the special verdict
    erroneously presented an all-or-nothing choice.              Under Hakim, some
    off-site contamination does not automatically justify recovery of
    11
    The district court told the jury that "the plaintiff cannot
    recover for any costs that were incurred solely to clean up its own
    property." But other portions of the instructions--the district
    court went on to characterize "the cleanup costs" as an indivisible
    sum--cut the other way.
    -16-
    all on-site remediation.       As Hakim explained: "The policy covers
    cleanup costs incurred to remediate or prevent further migration of
    the contaminants to the off-site waterways. Costs incurred for the
    sole purpose of remediating the Hakims' property are barred by . .
    . the policy."     
    Id. at 1165-66
    .
    Boston Gas also says that Century provided no evidence
    that would have allowed the jury to determine that some of the on-
    site costs were solely for the benefit of the site and not
    necessary to prevent further off-site pollution.             Yet substantial
    costs (Century says $3.5 million) were incurred to remove soils and
    for other work incident to a project undertaken in 2000 by DOMAC to
    expand its operations at the Everett site--or at least the jury
    could have so found.      These costs are part of the award against
    Century.
    For     example,    among   other      steps,     DOMAC   removed
    contaminated soils and liquids from underground storage tanks--
    these tanks were buried under the Everett site when DOMAC first
    purchased the property in 1970--at a cost to Boston Gas (under a
    sharing agreement with DOMAC) of around $1.6 million. Century says
    that this was clearly done for the purpose of giving DOMAC a firm
    foundation   for   its   own   facilities   and   not   as   remediation   or
    prevention of further off-site damage.
    The fact that the jury verdict included the disputed
    costs shows only that the jury believed that some costs targeted
    -17-
    pollution that damaged or threatened off-site property. So we must
    remand for a new trial on this issue.               This is a relatively narrow
    issue, but the amounts are not trivial.                     In all events, the
    principle is clear: only that remediation necessary to protect
    against   off-site       contamination       is    compensable;    further   costs,
    however useful to mitigate on-site contamination, are not.
    Century says that it should have been given judgment as
    a   matter   of    law    as    to   a   portion    of   these   disputed    costs--
    specifically, the $1.6 million allocated to the removal of the
    contaminated soils.            Century argues, first, that the removal was
    indisputably for the purpose of the DOMAC expansion project and
    therefore excluded; and second, that the soil was contaminated by
    underground       oil    only   after     DOMAC    purchased     the   property   and
    Century's coverage ceased.               We are not persuaded that the issue
    should have been taken from the jury.
    The "purpose" of the removal may, as Century claims, have
    been to forward the DOMAC expansion; but the relevant question
    under the policy and Hakim is whether the removal of that soil was
    also objectively necessary because contaminants in the soil posed
    a threat to off-site property as well.               Similarly, Century's claim
    that this all occurred after its policy coverage ended in 1969 begs
    the question; the covered "occurrence"--ongoing contamination--
    began before and continued during and lasted until after Century's
    period of coverage.
    -18-
    Century points to some evidence that the contamination of
    the soil in the tanks occurred during the 1970 project; but Boston
    Gas attacked the credibility of Century's expert witness, Richard
    Meehan,    and    offered   evidence   that     the    tanks    may   have     been
    contaminated at some earlier point and that contamination generally
    had spread throughout the Everett site and beyond.              This is for the
    jury to resolve.         Sailor Inc. F/V v. City of Rockland, 
    428 F.3d 348
    , 354 (1st Cir. 2005).
    Exclusion of Charles Anderson's supplementary expert
    report.    Century next argues that the district court erred in
    precluding one of its expert witnesses, Charles Anderson, from
    supplementing      his   expert   report    after     the   expiration    of   the
    deadline for such responses as set by the district court.                The test
    in such a case is abuse of discretion.                 Licciardi v. TIG Ins.
    Group, 
    140 F.3d 357
    , 362-63 (1st Cir. 1998); see also Nat'l Hockey
    League v. Metro. Hockey Club, Inc., 
    427 U.S. 639
    , 642 (1976) (per
    curiam).
    In federal practice, an expert must ordinarily file a
    report, Fed. R. Civ. P. 26(a)(2)(B), kept current by supplementary
    reports if needed, id. 26(e)(2).           The trial judge typically sets a
    schedule and may exclude non-complying evidence.               Id. 26(a)(2)(c);
    Macaulay v. Anas, 
    321 F.3d 45
    , 50 (1st Cir. 2003).              Here,    November
    30, 2004, was the deadline for the parties to serve reports
    containing their experts' complete opinions.                The parties were to
    -19-
    conclude expert depositions by April 1, 2005, file rebuttal reports
    by April 22, 2005, and conduct rebuttal depositions by May 13,
    2005.
    Pursuant to this timetable, Century produced Anderson's
    report on November 29, 2004, and supplemented it with a report
    filed on March 11, 2005.     Anderson was to serve as Century's expert
    on the proper categorization of costs; Anderson attested that he
    would categorize Boston Gas' site-related expenditures as "legal
    costs, site investigation costs, remediation costs, and general
    business expenditures"-- presumably to aid the jury in determining
    which costs fell within Century's policy exclusions.
    On September 16, 2005--approximately two months before
    trial was set to begin--Century produced a second supplemental
    report from Anderson, which contained (in Century's view) essential
    opinions    related   to    Century's     owned-property      defense.     For
    instance, the report characterized certain expenses previously
    categorized as "remediation" as necessary for on-site construction
    activities but not remediation.          The new report also contained new
    analysis of the costs Boston Gas had incurred in the removal and
    disposal of the three underground storage tanks; Anderson planned
    to   say   this   project   was   part    of   construction    activity,   not
    remediation efforts.
    Boston    Gas   moved   to    strike Anderson's supplemental
    report, complaining that Century sought to inject an entirely new
    -20-
    theory of defense as to certain costs after the deadline for expert
    reports.   Century answered that the tardy report was based on
    information that Boston Gas had itself belatedly disclosed on
    August   16,   2005;   this   data,   Century   claims,   was    previously
    unavailable to Century.       The district court sided with Boston Gas
    and excluded the new report, saying the report was a major change
    and prior discovery available to Century undermined Century's
    claimed lack of notice.
    From our vantage, this was a close call.             Century has
    some basis for contesting Boston Gas' description of the reports as
    reflecting a "sea change," and         Boston Gas could have asked to
    depose Anderson on his new adjustments.            See Johnson v. H.K.
    Webster, Inc., 
    775 F.2d 1
    , 8 (1st Cir. 1985).             But changes in
    position shortly before trial complicate scheduling; the district
    court's on-the-ground weighing of the factors has to be respected,
    absent a clear abuse, Thibeault v. Square D Co., 
    960 F.2d 239
    , 244
    (1st Cir. 1992); and we are not disposed in this case to override
    its judgment.      If the limited new trial ordered changes the
    calculus, that is a matter for the district court.
    Jury instructions on "expected or intended" defense.
    Century's policy defines occurrence as "an accident, including
    injurious exposure to conditions, which results, during the policy
    period, in property damage neither expected nor intended from the
    standpoint of the [i]nsured."          Massachusetts courts read such
    -21-
    clauses as exclusions, with the insurer bearing the burden of
    proof.   Quincy Mut. Fire Ins. Co. v. Abernathy, 
    469 N.E.2d 797
    , 800
    (Mass. 1984); see also McGinnis v. Aetna Life & Cas. Co. 
    494 N.E.2d 1322
     (Mass. 1986).       Placing the burden on Century, the district
    court asked the jury on the special verdict form to decide:
    Did Boston Gas Company intentionally cause or
    know to a substantial certainty that it was
    causing contamination of soil and groundwater
    at the Everett site in one or more policy
    years?
    A "yes" answer to this question required the jury to
    identify the year or years in which Boston Gas "intentionally
    cause[d] or [knew] to a substantial certainty that it was causing
    such   contamination."      But   the   jury   returned   a   "no"   answer,
    rendering the exclusion inapplicable.          On appeal, Century objects
    to the charge based on a remark made by the district court in
    explaining its special questions to the jury.
    The remark was made by the district judge in seeking to
    differentiate between the type of knowledge required by this
    "expected/intended" exclusion and another "known loss" exclusion
    that Massachusetts courts read into such policies; the latter is a
    judicially created exclusion that prevents a policyholder from
    recovering for losses from damage that it knew existed before
    purchasing an insurance policy.         See SCA Servs. Inc. v. Transp.
    Ins. Co., 
    646 N.E.2d 394
    , 397 (Mass. 1995).
    -22-
    The court described a known loss as reflecting "knowledge
    of damage before the policy becomes effective" as compared to the
    expected or intended damage exclusion, which involves "either
    intending during the policy year or knowing to a substantial
    certainty   that    it    was   contaminating   during     the    policy   year"
    (emphasis added).        Century says that the latter direction required
    the jury to disregard evidence, heavily relied on by Century, of
    Boston Gas' expectations in the years before the first Century
    policy went into effect.
    Taken   literally      and   in   isolation,    the    underscored
    language might be understood as Century contends and might well
    misstate Massachusetts law; we can see no reason why knowledge
    prior to the policy year would not count against the insured.               But
    the chance of prejudice is limited because the pertinent charge as
    a whole (which Century did not trouble to quote) tended to convey
    the correct message and also because common sense tends to reject
    the notion that an earlier intention or expectation would not
    count.
    Anyway, Century failed to object to the district court's
    arguable misstatement when the charge was given, Fed. R. Civ. P.
    51(c).   Century did object to the district court's "expected or
    intended" instruction, but did so on grounds unrelated to the
    temporal aspect it now criticizes.              Cf. Colon-Millin v. Sears
    Roebuck de Puerto Rico, Inc., 
    455 F.3d 30
    , 40-41 (1st Cir. 2006).
    -23-
    The misstatement could easily have been corrected on the spot. The
    objection is therefore forfeit and we have dealt with the point for
    the sake of trial in successor cases.
    Declaratory    judgment.          In   addition     to    awarding     the
    damages   calculated    by     the   jury,    the    district       court   granted
    declaratory relief requiring Century to indemnify Boston Gas for
    all future costs for investigation and cleanup at and around the
    Everett   site.   Century      contends--as         it   did   below--that        the
    declaratory judgment is over-broad because it applies to possible
    damage from MGP operations at the Everett site that was not
    specifically litigated at the Everett trial.
    For instance, Century claims that Boston Gas may use the
    declaratory judgment to compel Century to indemnify Boston Gas for
    costs incurred to clean up the Mystic River; although the river
    abuts the Everett site, Century says that no issue related to the
    cleanup of the river was adjudicated as part of the Everett trial.
    Century claims that these and some other future costs are "purely
    speculative," not the subject of any formulated clean-up plan, and
    may be subject to exclusions or defenses that Century was unable to
    raise or that were otherwise not at issue during the trial.
    The district judge retains substantial discretion in
    deciding whether to grant declaratory relief, but--so far as its
    grant   determines     legal    liabilities--our         review     may     be   more
    -24-
    searching.12     We    are   troubled       neither     by   the     claim   of
    speculativeness--there were indications of further damage to the
    river--nor about the lack of a final remedial plan.                      In the
    analogous   CERCLA    context,   courts     routinely    enter     declaratory
    judgments on liability for response costs or damages.               See Kelley
    v. E.I. DuPont de Nemours & Co., 
    17 F.3d 836
    , 844-46 (6th Cir.
    1994).
    But the declaratory judgment makes Century liable for
    "all costs that Boston Gas has incurred, and will incur, for
    investigation   and    cleanup   at   and    around    the   Everett     site."
    Century's   obligations   are    defined    by   the    policy     and   related
    liability rules and, although presumably not intended by the
    district court, the judgment could be read to sweep more broadly--
    say, to encompass clean-up operations that are necessitated by
    future remediation of the Everett site property solely for the
    benefit of the new owner.
    Surely the entry of declaratory relief in Boston Gas'
    favor should not preclude an insurer from contesting the amount of
    the requested costs or whether the work undertaken was consistent
    with compensable remediation efforts. Cf. Foster v. United States,
    
    922 F. Supp. 663
    , 664-65 (D.D.C. 1996); see also Am. Cyanamid Co.
    12
    See generally Diaz-Fonseca v. Puerto Rico, 
    451 F.3d 13
     (1st
    Cir. 2006); Ernst & Young v. Depositors Econ. Prot. Corp., 
    45 F.3d 530
    , 534 (1st Cir. 1995); Nat'l R.R. Passenger Corp. v. Providence
    & Worcester R.R. Co., 
    798 F.2d 8
    , 10 (1st Cir. 1986).
    -25-
    v. Capuano, 
    381 F.3d 6
    , 12 (1st Cir. 2004).                Whether future costs
    may be covered by an exclusion (e.g., for the insured's own
    property) or defense is not easily resolved in the abstract.                      One
    can imagine scenarios in which Boston Gas may seek recovery for
    costs that Century may deem covered by a defense not yet resolved
    or forfeit.
    We conclude that as to future costs, Century cannot re-
    argue matters that have already been decided, but conversely,
    Boston Gas cannot properly seek to recover for future costs spent
    purely to remediate its own property where no threat exists of
    contamination outside the site. The district court will be able to
    determine the scope of litigation when a dispute arises, using
    doctrines like collateral estoppel, waiver, and the like to prevent
    relitigation      of    matters   that    have   been,    or    could   have   been,
    decided.
    By its literal terms the declaratory judgment could be
    read to encompass costs that are not recoverable under Century's
    policy; the district court may not have considered that requiring
    Century    to    indemnify      Boston    Gas    for    all     costs   related    to
    "investigation         and   cleanup"    may    apply    more    broadly   than    it
    intended.       On remand an adjustment is needed in order to clarify
    that Boston Gas' entitlement extends only to costs incurred for
    remediation not barred by the terms of Century's policies and
    consistent with the findings of the jury.
    -26-
    Statutory prejudgment interest.       Mass. Gen. Laws ch. 231
    § 6C provides:
    In   all    actions   based   on   contractual
    obligations . . . interest shall be added by
    the clerk of the court . . . at the rate of
    twelve per cent per annum from the date of the
    breach or demand. If the date of the breach
    or demand is not established, interest shall
    be added . . . at the rate of twelve per cent
    per annum from the date of the commencement of
    the action.
    Based on this provision, the district court calculated prejudgment
    interest (roughly $2.5 million) as running from the various dates
    that Boston Gas incurred expenses for which it was entitled to
    indemnity from Century.        For purposes of this calculation, Boston
    Gas submitted dated invoices for all of these expenses.
    Century argues to us, as it did in the district court,
    that interest should instead run from October 22, 2002--the date on
    which   Boston   Gas   filed    the   action--with   respect   to   expenses
    incurred before that date.       (Both agree that interest on expenses
    incurred after the filing date accrues only from the dates they
    were incurred.)    It says that the date of breach or demand has not
    been "established" because there was no jury finding; and, further,
    no breach or demand occurred before suit was filed because Boston
    Gas had not requested indemnification for specific expenses.            Our
    review on this claim is de novo. See R.I. Charities Trust v.
    Engelhard Corp., 
    267 F.3d 3
    , 5 (1st Cir. 2001).
    -27-
    Massachusetts courts have repeatedly stated that, where
    a case is tried to a jury, the jury is to pass on the question of
    whether and when (for purposes of section 6C) breach occurred or a
    demand was made.   Deerskin Trading Post, Inc. v. Spencer Press,
    Inc., 
    495 N.E.2d 303
    , 308 (Mass. 1986) (in jury case neither trial
    judge or appellate court can decide issue); see also Berish v.
    Bornstein, 
    770 N.E.2d 961
    , 979-980 (Mass. 2002).     Here, neither
    party sought a special verdict finding on this question.
    Federal courts in diversity cases are bound to follow
    state substantive law, but whether a judge or jury should decide an
    issue is a matter of court practice or procedure.     Byrd v. Blue
    Ridge Rural Electrical Cooperative, Inc., 
    356 U.S. 525
     (1958),
    expressly decided that the distribution of issues between judge and
    jury is "not bound up with rights and obligations," so as to commit
    a federal court to follow the state rule.     
    Id. at 538
    ; see also
    Hanna v. Plumer, 
    380 U.S. 460
    , 465 (1965); Mayer v. Gary Partners
    & Co., 
    29 F.3d 330
    , 333 (7th Cir. 1994).
    Boston Gas is entitled, under Massachusetts law, to
    prejudgment interest at the statutory rate from the date of "breach
    or demand"; but in a federal court federal practice governs who
    determines that date.     Our case law does not appear to have
    directly addressed this question before.   Occasionally, on this or
    like issues, we have referred to state practice, e.g., Saint-Gobain
    Indus. Ceramics Inc. v. Wellons, Inc., 
    246 F.3d 64
     (1st Cir. 2001)
    -28-
    (where no one seems to have argued that federal law should govern),
    but without a considered holding.
    In federal practice, usually the jury is required to pass
    on all elements of damages; yet prejudgment interest is routinely
    added by the judge on motion to alter or amend the judgment under
    Fed. R. Civ. P. 59(e), e.g., Osterneck v. Ernst & Whinney, 
    489 U.S. 169
    ,   171-72   (1989),    and   the   district     judge   decides   based   on
    "considerations of fairness" whether to award interest at all and
    at what rate.     Bd. of County Comm'rs of Jackson County v. United
    States, 
    308 U.S. 343
    , 352 (1939).
    If interest were required to be awarded from a certain
    date by right, and there were a genuine factual dispute as to that
    date, then a federal court might yield to the jury, cf. Erskine v.
    Van Arsdale, 82 U.S. (15 Wall.) 75, 77 (1872); but even this is not
    beyond doubt since judges do determine facts in certain contexts,
    see Markman v. Westview Instruments, Inc., 
    517 U.S. 370
    , 378
    (1996).   The inquiry, to the extent that the seventh amendment is
    invoked, is largely historical.          
    Id.
    We need not engage in that inquiry here because we are
    convinced that no factual questions are implicated.              The material
    facts are known and undisputed.               On August 4, 1995, Boston Gas
    wrote to Century to give notice of the contamination:
    This will      serve as notice of circumstances
    indicating     the potential for claims against
    Boston Gas     Company ("Boston Gas") arising out
    of alleged      contamination . . . .     You are
    -29-
    hereby notified that Boston Gas claims
    entitlement to coverage under the referenced
    policies with respect to any claims or
    liabilities that may arise out of any
    contamination of the referenced sites.
    Century responded on July 22, 1996, writing that until it could
    "obtain additional factual information," it will "reserve all
    rights, at law and in equity, to disclaim coverage under the terms,
    conditions, definitions and exclusions of the policies."
    The letter explicitly warned that it "should not be
    understood as either accepting or disclaiming coverage but, rather,
    as notice to Boston Gas that coverage may be in jeopardy under the
    policies."      Century   says   that,    thereafter,   Boston   Gas   never
    requested payment for specific expenses or submitted particular
    invoices to it for reimbursement, and Boston Gas does not claim
    otherwise.   In other words, until this suit there was never a
    refusal to pay any invoice, either specifically or categorically.
    On the present record, no date of "breach or demand" has
    been established, and Boston Gas is entitled to statutory interest
    only from the date of filing suit (or later, for those expenses
    that post-dated the filing).      The Supreme Judicial Court has held
    that a demand should inform the defendant "of the basis and extent
    of its obligations, as well as the fact that performance was then
    due."   Town of Lexington v. Town of Bedford, 
    393 N.E.2d 321
    , 324
    (Mass. 1979).    Boston Gas' letter, which gave notice only of the
    "potential" for claims (presumably to satisfy notice requirements),
    -30-
    did not do so; it was not an "unequivocal demand[] for payment."
    Gen. Dynamics Corp. v. Fed. Pac. Elec. Co., 
    482 N.E.2d 824
    , 830
    (Mass. App. Ct. 1985).
    In allowing interest from the dates of the invoices, the
    district court relied on Sterilite Corp. v. Continental Casualty
    Co., 
    494 N.E.2d 1008
     (Mass. 1986), holding that an insurer who
    breached its duty to defend was liable for interest from the dates
    that the insured, "on notice that the defendant would refuse to pay
    for those expenses, was forced to pay those expenses itself."   Id.
    at 1011.   But Century had not disclaimed coverage, cf. Protective
    Life Ins. Co. v. Dignity Viatical Settlement Partners, L.P., 
    171 F.3d 52
    , 55 (1st Cir. 1999), and was not bound to make payments in
    the absence of specific requests to do so.
    Missing policies.   Century's last objection is easily
    dispatched.   Century challenges the jury's findings on the limits
    of liability for the insurance policies Century issued to Boston
    Gas between 1951 and 1960.     Although Boston Gas sought coverage
    for liabilities at the Everett site under the Century policy in
    effect from 1966-1969, Boston Gas--presumably to protect its own
    interests in subsequent cases and in settlement discussions--
    requested that the jury find the limits of Century's policy XPL-
    3392, which was in effect from 1951 through 1960.         The jury
    concluded that the policy had an annual limit of $500,000 during
    -31-
    the 1952-54 time period, and a limit of $1,000,000 in all the other
    years.
    Neither   party   produced   a   copy   of   policy   XPL-3392;
    possibly the policy, over a half century old, was lost or perhaps
    destroyed    at   some   point   in   the    intervening     years.     Under
    Massachusetts law, the loss of a policy is not fatal to a claim:
    the proponent of the policy simply bears the burden of proving--
    e.g., by business records and expert testimony--the prior existence
    and terms of the policy.      Rubenstein, 694 N.E.2d at 384.          Century
    now claims that the jury's findings as to the terms of policy XPL-
    3392 are unsupported by the evidence.
    At trial, evidence was produced by both sides as to
    Century's insurance practices during the relevant period; for
    example, Boston Gas placed in evidence a 1951 Century insurance
    policy issued to Brooklyn Union Gas Company.             Boston Gas relied
    heavily on the language of the 1960-66 policy, XPL-5607, which
    stated that it was a renewal of XPL-3392; Boston Gas' former
    director of risk management, Stephanie Shepard, testified that the
    term "renewing" meant that XPL-5607, which had an annual limit of
    $1,000,000, renewed a prior policy with similar coverage and
    limits.
    Boston Gas also relied on testimony about reinsurance
    practices from Judith Harnadek, an assistant vice-president in
    Century's claim handling department, to show that XPL-3392 was
    -32-
    valued somewhere between $500,000 and $1,000,000.              Century, in
    turn,   attempted    to   impugn   Shepard's    knowledge    of     insurance
    practices during the 1950s and said that Harnadek's testimony
    established that Century's insurance practices were highly variable
    and the policy limits of XPL-3392 could not be determined with any
    certainty.
    The jury's determination of raw facts stands unless it is
    unsupported by any rational view of the evidence. Marcoux v. Shell
    Oil Prods. Co. LLC, 
    524 F.3d 33
    , 40 (1st Cir. 2008).           Here a jury
    could reasonably be persuaded by Boston Gas' evidence showing that
    XPL-5607 served as a renewal of the earlier XPL-3392, as well as by
    the documentary evidence of contemporaneous policies issued by
    Century to other manufactured gas companies.           Century produced
    evidence casting doubt on Boston Gas' position, but nothing that
    compelled a different finding.
    Conclusion.      The    questions   specified    below    will   be
    referred to the Massachusetts Supreme Judicial Court for its
    consideration.      We have decided all other issues, confirming that
    the certified issues do affect the ultimate outcome. The questions
    are as follows:
    1.    Where an insured protected by
    standard CGL policy language incurs covered
    costs as a result of ongoing environmental
    contamination occurring over more than one
    year and the insurer provided coverage for
    less than the full period of years in which
    contamination occurred, should the direct
    liability of the sued insurer be pro rated in
    -33-
    some manner among all insurers "on the risk,"
    limiting the direct liability of the sued
    insurer to its share but leaving the insured
    free to seek the balance from other such
    insurers (see pages 9-13, above) ?
    2. If some form of pro rata liability
    is called for in such circumstances, what
    allocation method or formula should be used
    (see page 13, above)?
    3.    If a single insurer in such
    circumstances is subject to liability under
    more than one policy and each policy has a
    separate deductible or self-insured retention,
    should the insured be able to collect covered
    losses from a single policy subject only to
    that policy's deductible or self-insured
    retention, or should liability be reduced by
    the sum of the applicable self-insured
    retentions,   effectively   allocating   total
    liability across the policies of that insurer
    in effect during the contamination period (see
    page 7 and note 4, above)?
    We would also welcome any additional observations about relevant
    Massachusetts law that the Supreme Judicial Court may wish to
    offer.
    The clerk of this court is directed to forward to the
    Massachusetts Supreme Judicial Court, under the official seal of
    this court, a copy of the certified questions and our decision in
    this case, along with a copy of the briefs and appendix filed by
    the parties in this case.   We retain jurisdiction over this appeal
    and will frame our ultimate decision and judgment after receiving
    such guidance on the certified questions as the SJC may be prepared
    to give.   No costs will be taxed at this stage of the proceedings,
    -34-
    but the issue may be revisited after we have received the answers
    to the certified questions.
    It is so ordered.
    -35-
    

Document Info

Docket Number: 07-1452

Citation Numbers: 529 F.3d 8, 38 Envtl. L. Rep. (Envtl. Law Inst.) 20138, 2008 U.S. App. LEXIS 12344, 2008 WL 2345272

Judges: Boudin, Selya, Gelpi

Filed Date: 6/10/2008

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (33)

keene-corporation-v-insurance-company-of-north-america-aetna-casualty-and , 667 F.2d 1034 ( 1981 )

Hanna v. Plumer , 85 S. Ct. 1136 ( 1965 )

Osterneck v. Ernst & Whinney , 109 S. Ct. 987 ( 1989 )

frank-j-kelley-state-of-michigan-michigan-department-of-natural-resources , 17 F.3d 836 ( 1994 )

energynorth-natural-gas-inc-successor-in-interest-to-gas-services-inc , 452 F.3d 44 ( 2006 )

Raymond Johnson v. H.K. Webster, Inc. , 775 F.2d 1 ( 1985 )

MARKMAN Et Al. v. WESTVIEW INSTRUMENTS, INC., Et Al. , 116 S. Ct. 1384 ( 1996 )

Colón-Millín v. Sears Roebuck De Puerto Rico, Inc. , 455 F.3d 30 ( 2006 )

Surprenant v. Rivas , 424 F.3d 5 ( 2005 )

Licciardi v. TIG Insurance Group , 140 F.3d 357 ( 1998 )

National Railroad Passenger Corporation D/B/A Amtrak v. ... , 798 F.2d 8 ( 1986 )

EnergyNorth Natural Gas, Inc. v. Certain Underwriters , 156 N.H. 333 ( 2007 )

National Hockey League v. Metropolitan Hockey Club, Inc. , 96 S. Ct. 2778 ( 1976 )

Board of Comm'rs of Jackson Cty. v. United States , 60 S. Ct. 285 ( 1939 )

insurance-co-of-north-america-v-forty-eight-insulations-inc , 633 F.2d 1212 ( 1980 )

General Dynamics Corp. v. Federal Pacific Electric Co. , 20 Mass. App. Ct. 677 ( 1985 )

United States v. Teemer , 394 F.3d 59 ( 2005 )

Saint-Gobain Industrial Ceramics Inc. v. Wellons, Inc. , 246 F.3d 64 ( 2001 )

Protective Life Insurance v. Dignity Viatical Settlement ... , 171 F.3d 52 ( 1999 )

Cigna Insurance v. OY Saunatec, Ltd. , 241 F.3d 1 ( 2001 )

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