Givaudan Fragrances Corporation v. Aetna Casualty & Surety ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2270-12T4
GIVAUDAN FRAGRANCES
CORPORATION, APPROVED FOR PUBLICATION
Plaintiff-Appellant, August 12, 2015
v. APPELLATE DIVISION
AETNA CASUALTY & SURETY
COMPANY a/k/a TRAVELERS
CASUALTY AND SURETY
COMPANY, TRAVELERS
CASUALTY AND SURETY
COMPANY f/k/a AETNA
CASUALTY & SURETY COMPANY,
TRAVELERS PROPERTY
CASUALTY CORP. as the
successor-in-interest to
AETNA CASUALTY & SURETY
COMPANY AND TRAVELERS
CASUALTY AND SURETY COMPANY,
AMERICAN HOME ASSURANCE
COMPANY, THE CENTRAL
NATIONAL INSURANCE COMPANY
OF OMAHA, CENTURY INDEMNITY
COMPANY, CONTINENTAL
CASUALTY COMPANY, THE
CONTINENTAL INSURANCE
COMPANY in its own right and
as successor-in-interest to
BOSTON OLD COLONY INSURANCE
COMPANY, EVEREST REINSURANCE
COMPANY f/k/a PRUDENTIAL
REINSURANCE COMPANY, FEDERAL
INSURANCE COMPANY, HARTFORD
ACCIDENT & INDEMNITY COMPANY,
TIG INSURANCE COMPANY as
successor-in-interest to
INTERNATIONAL INSURANCE
COMPANY, LEXINGTON INSURANCE
COMPANY, MUNICH REINSURANCE
COMPANY f/k/a AMERICAN
RE-INSURANCE COMPANY,
NATIONAL SURETY CORPORATION,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, and
ALLSTATE INSURANCE COMPANY as
successor-in-interest to
NORTHBROOK EXCESS AND SURPLUS
INSURANCE COMPANY f/k/a
NORTHBROOK INSURANCE COMPANY,
Defendants-Respondents,
and
HOME INSURANCE COMPANY, MIDLAND
INSURANCE COMPANY, THE NEW JERSEY
PROPERTY-LIABILITY GUARANTY
ASSOCIATION on behalf of MIDLAND
COMPANY in insolvency, MISSION
INSURANCE COMPANY, THE NEW JERSEY
PROPERTY-LIABILITY GUARANTY
ASSOCIATION on behalf of MISSION
INSURANCE COMPANY in insolvency,
and NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Defendants.
___________________________________________
Argued December 10, 2014 – Decided August 12, 2015
Before Judges Fuentes, Ashrafi and O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-592-09.
Robin L. Cohen (Kasowitz, Benson, Torres &
Friedman, L.L.P.) of the New York bar,
admitted pro hac vice, argued the cause for
appellant (The Law Office of Robert B.
2 A-2270-12T4
Woodruff, P.C., and Ms. Cohen, attorneys;
Mr. Woodruff, Ms. Cohen and Kenneth H.
Frenchman (Kasowitz, Benson, Torres &
Friedman, L.L.P.) of the New York bar,
admitted pro hac vice, on the briefs).
Daren S. McNally argued the cause for
respondent Travelers Casualty and Surety
Company (Clyde & Co. U.S. L.L.P., attorneys;
Mr. McNally, Barbara M. Almeida and Meghan
C. Goodwin, on the brief).
Patrick F. Hofer (Troutman Sanders L.L.P.)
of the District of Columbia and Virginia
bars, admitted pro hac vice, argued the
cause for respondents Continental Casualty
Company and the Continental Insurance
Company (Coughlin Duffy L.L.P. and Mr.
Hofer, attorneys; Suzanne C. Midlige,
Christopher S. Franges and Mr. Hofer, on the
briefs).
Tanya M. Mascarich argued the cause for
respondent Allstate Insurance Company
(Windels Marx Lane & Mittendorf, L.L.P.,
attorneys; Ms. Mascarich and Stefano V.
Calogero, on the brief).
LeClairRyan, attorneys for respondents
American Home Assurance Company, and
National Union Fire Insurance Company of
Pittsburgh (Gregory S. Thomas, on the
brief).
Siegal & Park, attorneys for respondents ACE
Property & Casualty Company, Century
Indemnity Company and TIG Insurance Company
(Martin F. Siegal and Seth G. Park, on the
brief).
Hardin, Kundla, McKeon & Poletto, attorneys
for respondent Everest Reinsurance Company
(John S. Favate, on the brief).
3 A-2270-12T4
Rivkin Radler L.L.P., attorneys for
respondent Federal Insurance Company (Brian
R. Ade, on the brief).
Graham Curtin, P.A., attorneys for
respondent Hartford Accident and Indemnity
Company (Dennis P. Monaghan, on the brief).
Smith Stratton Wise Heher & Brennan, L.L.P.,
attorneys for respondent Munich Reinsurance
America, Inc. (William E. McGrath, Jr., on
the brief).
Jeffrey N. German, attorney for respondent
National Surety Corporation.
The opinion of the court was delivered by
O'CONNOR, J.A.D.
Plaintiff Givaudan Fragrances Corporation appeals the
December 21, 2012 orders denying its motion for partial summary
judgment, granting defendants' motion for summary judgment, and
dismissing its complaint. After carefully reviewing the record,
the briefs, and the controlling legal principles, we reverse.
I
The primary issue in this appeal is whether plaintiff may
be assigned the rights under insurance policies issued years
earlier to one of the assignor's predecessor corporations. A
brief overview of plaintiff's corporate history is necessary to
put the issues in perspective. On February 28, 1924, Burton T.
Bush, Inc., was incorporated. This company manufactured
flavors, fragrances, and other chemicals in Clifton and other
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locations. On September 15, 1965, the company was renamed the
Givaudan Corporation.
During the 1960s and 1980s, the Givaudan Corporation
purchased insurance policies from defendants. These policies,
which identified the Givaudan Corporation as the named insured,
provided primary, umbrella, and excess coverage. The policy
periods ranged from November 16, 1964 to January 1, 1986.
In 1987, the New Jersey Department of Environmental
Protection (DEP) determined that the Givaudan Corporation's
manufacturing activities contaminated the soils and groundwater
at the Clifton site with hazardous materials. The Givaudan
Corporation and the DEP entered into various administrative
consent orders in 1987 and 1988 directing, among other things,
that the company remediate the damage caused by the
contamination and pay certain costs. These administrative
consent orders stated they were binding upon not only the
Givaudan Corporation, but also its successors and assigns.
In the 1990s, a series of very complex corporate mergers,
transfers, and re-formations began for reasons that are neither
fully explained in our record nor ultimately relevant to the
issues before us. First, in the 1990s the Givaudan Corporation
merged with another company and became known as the Givaudan
Roure Corporation. Separate and apart from that merger, in
5 A-2270-12T4
1997, the Givaudan Roure Fragrance Corporation was formed.
Also in 1997, the Givaudan Roure Corporation decided to
close its plant in Clifton. As part of its obligations under
the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 to -14, the
Givaudan Roure Corporation and the DEP entered into a
remediation agreement, effective January 1, 1998. That
agreement required both the Givaudan Roure Corporation and the
Givaudan Roure Fragrance Corporation to continue their efforts
to fulfill the terms of the administrative consent orders and to
maintain a remediation funding source. The facility was
ultimately closed in July 1998.
On January 1, 1998, the Givaudan Roure Corporation
transferred the assets and liabilities of its fragrances
division to the Givaudan Roure Fragrance Corporation. The
liabilities the latter corporation assumed did not exclude
Givaudan Roure Corporation's environmental liabilities. None of
the assets transferred included the insurance policies issued by
defendants to the Givaudan Corporation.
For reasons not pertinent here, in 1998 the Givaudan Roure
Fragrance Corporation changed its name and, in 2000, merged into
the newly formed Givaudan Fragrances Corporation. Plaintiff is
the Givaudan Fragrances Corporation. It is not disputed that
the Givaudan Fragrances Corporation (Fragrances) is the
6 A-2270-12T4
successor-by-merger to the Givaudan Roure Fragrance Corporation.
In the interim, in January 1998, the Givaudan Roure
Corporation merged into what is now known as the Givaudan
Flavors Corporation (Flavors). It is undisputed Flavors is the
successor–by-merger to the Givaudan Corporation. It is also
undisputed that Fragrances and Flavors are affiliated companies,
see N.J.S.A. 14A:10A-3, and each is owned by the same parent
company, Givaudan Flavors and Fragrances, Inc.
In August 2004, the Environmental Protection Agency
notified Fragrances that it was potentially liable under the
Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C.A. §§ 9601-9675, for hazardous
discharges that had emanated from the Clifton site. In January
2006, the DEP also filed suit against Fragrances for damage
caused by discharges from the Clifton site.
In 2005, the DEP commenced an action against several
companies that had operated sites within a contaminated area
known as the Newark Bay Complex. On February 4, 2009, two of
the defendants in the DEP action, Maxus Energy Corporation and
Tierra Solution, Inc., filed third-party contribution claims
against more than 300 entities that had also conducted
activities in the area. Fragrances was among those third-party
defendants.
7 A-2270-12T4
Fragrances claimed it was an insured under the insurance
policies defendants had issued to the Givaudan Corporation
between 1964 and 1986. Defendants disputed that claim and
contended Fragrances was not an insured under any of the
policies. On February 20, 2009, Fragrances filed the within
declaratory judgment action. Fragrances sought a ruling that it
was an insured under defendants' policies and that they were
obligated to defend and indemnify it in the third-party
contribution action and the related EPA and DEP matters.
On March 25, 2010, Flavors assigned to Fragrances all of
Flavor's insurance rights under various policies defendants had
issued to the Givaudan Corporation from November 16, 1964 to
January 1, 1986. The assignment states that Flavors
sells, transfers, assigns, conveys, grants,
sets over and delivers to Givaudan
Fragrances Corporation ("Assignee") all
rights to insurance coverage under the
insurance policies described on Schedule A
hereto for all occurrences, accidents,
events, loss, injuries, damages, and
liabilities arising out of the conduct of
the business of Assignor, Assignee or any
affiliate or predecessor of Assignor or
Assignee prior to January 1, 1998, and
relating to liabilities and/or assets
transferred from Assignor to Assignee on or
about January 1, 1998, including but not
limited to any environmental liabilities[.]
Defendants refused to recognize the assignment on the
ground their respective policies prohibited policy assignments
8 A-2270-12T4
without the insurer's consent, and none of the insurers had
consented to the assignment. Defendants also contended that
Fragrances was not included within the definition of insured in
any of the policies.
Fragrances maintained that the assignment was valid and
binding upon defendants. Fragrances also argued that it was an
insured under those policies that defined the named insured as
"Givaudan Corporation and any subsidiary or affiliated companies
which may now exist or hereafter be created." Fragrances
contended it was an affiliate of Flavors (the successor-by-
merger to the Givaudan Corporation) because Fragrance and
Flavors were both owned and controlled by the same parent,
Givaudan Flavors and Fragrances, Inc.
Fragrances moved for partial summary judgment and
defendants cross-moved for summary judgment. On December 21,
2012, the trial court denied Fragrances's motion, granted
defendants' motions, and dismissed Fragrances's complaint with
prejudice. The court found the assignment invalid because there
was assignment of more than
a single claim and single insurance rights.
. . . [T]his assignment is not simply [an]
assignment of a particular claim or even
limited claim -- insurance claims. It seems
to be a rather global assignment. And I
think there's no other way that I can read
that assignment, even though it doesn't say
it's the assignment of a policy. For all
9 A-2270-12T4
intents and purposes, it is [an] assignment
of policies.
. . . It's simply not the assignment of a
[chose in] action.
The trial court also found that Fragrances was not an
affiliate of Givaudan Corporation and therefore not an insured,
even though the definition of an insured under most of the
policies included "affiliated companies which may now exist or
hereafter be created." The court interpreted this language to
mean that only those affiliates that were created during a
policy period could be an insured. The trial court also
indicated that Fragrances was not an insured affiliate because
of
the corporate structure involved. What was
involved were some very convoluted changes
and acquisitions after the last policy
period. . . . [Y]ou do have acquisitions of
different businesses and after the last
policy period, and eventually a split up
into two corporations, albeit under the same
umbrella.
II
Our review of a trial court's summary judgment order is de
novo, and an appellate court applies the same legal standard as
the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)
(citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v.
N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010)). A motion
for summary judgment should be granted only when the moving
10 A-2270-12T4
party establishes the absence of any genuine issue as to a
material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 539-40 (1995). If there is no genuine issue of material
fact, a reviewing court decides whether the trial court's ruling
on the law was correct. Prudential Prop. Ins. v. Boylan, 307
N.J. Super. 162, 167 (App. Div. 1998). "A trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special
deference." Manalapan Realty L.P. v. Manalapan Twp. Comm., 140
N.J. 366, 378 (1995).
Fragrances contends the trial court erred when it concluded
the assignment from Flavors to Fragrances was invalid.
It is not disputed that defendants' policies were
"occurrence" policies. In these kinds of policies, the peril
insured is the occurrence itself. Zuckerman v. Nat'l Union Fire
Ins. Co., 100 N.J. 304, 310 (1985) (citing S. Kroll, "The
Professional Liability Policy 'Claims Made'" 13 Forum 842, 843
(1978)). "Once the occurrence takes place, coverage attaches
even though the claim may not be made for some time thereafter."
Id. at 310-11 (quoting S. Kroll, supra, 13 Forum at 843).
It is also not disputed that the subject policies require
the insurer's consent in order for the insured to assign the
policy to a third person. See also Kase v. Hartford Fire Ins.
11 A-2270-12T4
Co., 58 N.J.L. 34, 36 (Sup. Ct. 1895) (holding that an insurance
policy cannot be transferred to a third person without the
insurer's consent). However, once a loss occurs, an insured's
claim under a policy may be assigned without the insurer's
consent. Flint Frozen Foods v. Firemen's Ins. Co., 12 N.J.
Super. 396, 399-400 (Law Div. 1951), rev'd on other grounds, 8
N.J. 606 (1952). As elucidated by the trial court in Flint,
after a loss covered by a policy has happened,
"the prohibition of assignments without the
consent of the insurer [ceases]. Its
liability [has] become fixed, and like any
other chose in action [is] assignable
regardless of the conditions of the policy
in question. This is settled by the great
weight of authority. In Wood on Fire
Insurance, vol. 2, par. 361 the doctrine is
stated thus: . . . '[If there has been an
assignment following a loss,] the insurer
becomes absolutely a debtor to the assured
for the amount of the actual loss, to the
extent of the sum insured, and it may be
transferred or assigned like any other
debt.'"
[Flint, supra, 12 N.J. Super. at 400-01,
(quoting Ocean Accident and Guarantee Co.
v. Southwestern Bell Tel. Co., 100 F.2d
441, 445 (8th Cir.) (internal citation
omitted), cert. denied, 306 U.S. 658, 59 S.
Ct. 775, 83 L. Ed. 1056 (1939)).]
"This reasoning has been approved by most insurance law
reporters and commentators." Elat, Inc. v. Aetna Cas. and Sur.
Co., 280 N.J. Super. 62, 67 (App. Div. 1995) (citing 16 George
J. Couch, Couch Cyclopedia of Insurance Law § 63.40 (rev. 2d ed.
12 A-2270-12T4
1983); 5A John A. Appleman, Insurance Law and Practice § 3458
(rev. ed. 1970)).
The purpose behind a no-assignment clause is to protect the
insurer from having to provide coverage for a risk different
from what the insurer had intended. Ibid.; AMB Prop., LP v.
Penn Am. Ins. Co., 418 N.J. Super. 441, 455 (App. Div. 2011). A
no-assignment clause guards an insurer against any unforeseen
exposure that may result from the unauthorized assignment of a
policy before a loss. Insurers provide policies of insurance to
those individuals and entities that insurers have determined are
acceptable risks. If an insured assigns the policy to a third
party without the insurer's consent, the insured may cause the
insurer to bear a risk the insurer never agreed to accept and
never would have accepted. See generally Wehr Constructors,
Inc. v. Assur. Co. of Am., 384 S.W.3d 680, 683 (Ky. 2012).
But if there has been an assignment of the right to collect
or to enforce the right to proceed under a policy after a loss
has occurred, the insurer's risk is the same because the
liability of the insurer becomes fixed at the time of the loss.
Thereafter, the insurer's risk is not increased merely because
there has been a change in the identity of the party to whom a
claim is to be paid. Ibid.; see also Elat, supra, 280 N.J.
Super. at 67 ("Assignment of the right to collect or to enforce
13 A-2270-12T4
the right to proceed under a . . . liability policy does not
alter . . . the obligations the insurer accepted under the
policy . . . [but] only changes the identity of the entity
enforcing the insurer's obligation to insure the same risk.");
see also 17 Williston on Contracts § 49:126 (4th ed. 2015)
(noting that an anti-assignment clause does not limit the
policyholder's power to make an assignment of the rights under
the policy after a loss has occurred).
Moreover, once the insurer's liability has become fixed due
to a loss, an assignment of rights to collect under an insurance
policy is not a transfer of the actual policy but a transfer of
the right to a claim of money. Wehr, supra, 384 S.W.3d at 683
(citing Conrad Brothers v. John Deere Ins. Co., 640 N.W.2d 231,
237-38 (Iowa 2001)). It is a transfer of a chose in action as
opposed to a transfer of an actual policy. 2 Couch on Insurance
§ 34:25 (3d ed. 2011). "'[T]he insurer becomes absolutely a
debtor to the assured for the amount of the actual loss, to the
extent of the sum insured, and it may be transferred or assigned
like any other debt.'" Elat, supra, 280 N.J. Super. at 66-67(quoting Flint, supra, 12 N.J. Super. at 400-01).
Here, Flavors assigned to Fragrances all of its rights to
the coverage provided by specific insurance policies, all of
which were clearly identified in a schedule attached to the
14 A-2270-12T4
assigning document. The schedule shows that the last of these
policies expired on January 1, 1986. If any loss occurred
during the policy period of any of these policies, the loss
clearly occurred long before the assignment in 2010. Therefore,
Flavors did not require the insurers' consent to assign its
rights under the policies. Further, the assignment of the
rights to the policies specified in the assigning document could
not have increased the risk to any defendant insurer because all
losses occurred before the assignment.
Defendants contend an insurer's contractual duty to honor
its obligations under a policy cannot be triggered until a
judgment has been recovered against an insured. There is no
merit to this argument. Defendants' policies are liability and
not indemnity policies. Although indemnity policies require
proof of payment by the insured as a condition precedent to
recovering from an insurer, see Johnson v. Johnson, 92 N.J.
Super. 457, 462 (App. Div. 1966); North v. Joseph W. North &
Son, 93 N.J.L. 438, 441 (E. & A. 1919), liability policies do
not. "Where the agreement provides indemnification for
liability, the cause of action arises with liability and the
[insured] is entitled to recover the amount necessary to enable
it to discharge the liability itself." First Indem. of Am. Ins.
Co. v. Kemenash, 328 N.J. Super. 64, 72-73 (App. Div. 2000).
15 A-2270-12T4
Further, the fact that some claims may not have been
asserted by those allegedly harmed by the Givaudan Corporation's
actions during a policy period of one of the subject policies
does not affect the validity of the assignment. Defendants'
obligation to provide coverage to the party deemed to be an
insured under the policies arose at the time of the loss.
Although the precise amount of defendants' liability may not be
known, defendants' obligation to insure the risk in accordance
with their respective policies was not altered by the
assignment. As occurrence-based policies,
they provide coverage for occurrences during
the coverage period, no matter when the
claims for those occurrences might be
pursued. They provide the insured with
protection against future claims by third
parties for covered losses incurred by the
third parties as a result of the insured's
actions during the coverage period.
Defendants could expect to provide the
contracted defense and liability coverage,
i.e., pay for the losses, possibly many
years after the policy expired. Once a
covered loss has occurred, the insured's
assignment of its right to liability
coverage or a defense relating to those
losses does not require consent from the
insurer because the assignment is
essentially the assignment of payment of a
claim already accrued, a claim consisting of
the right to a defense and indemnification.
[Ill. Tool Works, Inc. v. Commerce & Indus.
Ins. Co., 962 N.E.2d 1042, 1053 (Ill. App.
Ct. 1st Dist. 2011).]
16 A-2270-12T4
Defendants argue that the assignment obligates them to
provide coverage for both Fragrances and Flavors and thus
improperly increases their risk. The assignment itself
disproves this premise. Flavors assigned to Fragrances all of
its rights to insurance coverage under the specific insurance
policies listed in the schedule for all occurrences, accidents,
events, losses, injuries, damages, and liabilities arising out
of the conduct of Flavors, Fragrances or an affiliate or
predecessor of Flavors or Fragrances before January 1, 1998.
Defendants also claim the assignment is too broad to be
enforceable. We disagree. The assignment is neither so broad
nor so non-specific as to render the rights conveyed
unidentifiable. The schedule accompanying the assignment
identifies the policies that are the subject of the assignment
by policy number, insurer, and the dates of the policy period
for each policy. It is clear what was assigned from Flavors to
Fragrances.
We have carefully considered defendants' remaining
arguments concerning the validity of the assignment and conclude
they are without sufficient merit to warrant discussion in a
written opinion. R. 2:2:11-3(e)(1)(E). Further, because of our
disposition on this issue, we need not address whether
Fragrances is an affiliate of the Givaudan Corporation.
17 A-2270-12T4
The provisions in the December 21, 2012 orders granting
defendants summary judgment and dismissing the complaint are
reversed. The provisions denying plaintiff partial summary
judgment are vacated, and partial summary judgment is granted to
plaintiff, which shall have the rights assigned to it from
Flavors in the March 25, 2010 assignment.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
18 A-2270-12T4