Barbara Williams v. Employers Mutual Casualty Co. , 845 F.3d 891 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3573
___________________________
Barbara Williams
lllllllllllllllllllll Plaintiff - Appellant
v.
Employers Mutual Casualty Company; Capitol Indemnity Insurance Co.; Owners
Insurance Company; The Collier Organization, Inc.; Employers Mutual Casualty Company
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 20, 2016
Filed: January 12, 2017
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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Plaintiff-appellant Barbara Williams appeals the district court’s denials of two
motions to remand; grant of judgment on the pleadings in favor of the defendant-
appellees Employers Mutual Casualty Company, Capitol Indemnity Insurance Co.,
and Owners Insurance Company; and grant of consent judgment in favor of the
defendant-appellee The Collier Organization, Inc. We affirm.
I. Background
The Collier Organization, Inc. (Collier) was the owner of Autumn Hills Mobile
Home Park (Autumn Hills) in Old Monroe, Missouri. From 1998 to 2009, Collier
purchased commercial general liability insurance policies from three different
insurance companies: Employers Mutual Casualty Company (Employers), Capitol
Indemnity Insurance Company (Capitol), and Owners Insurance Company (Owners)
(collectively, the Insurers). Employers issued three year-long policies, covering the
period from March 13, 1999, to March 13, 2002. Capitol issued two year-long
policies, covering the period from April 1, 2003, to April 1, 2005. Owners issued
four year-long policies, covering the period from April 1, 2005, to April 1, 2009.
Each policy provided that the relevant insurance company had a duty to defend and
indemnify Collier for “bodily injury and property damage” resulting from
“occurrences.”
On March 5, 2008, Michelle Pratt brought a class-action lawsuit (Original
Action) in Lincoln County, Missouri Circuit Court on behalf of the residents of
Autumn Hills against Collier and two other entities that are not parties in this case.
Williams was later substituted as class representative. The state court certified a class
of Autumn Hills residents.
The complaint alleged that from 1999 to 2008, the two wells that supplied
Autumn Hills with drinking water contained illegal levels of Radium 226, combined
Radium 226 and Radium 228, gross alpha particle activity, and coliform bacteria.
According to the complaint, Collier was aware the water supply was contaminated,
and failed to correct the issue. Further, the complaint alleged that Collier failed to
inform Autumn Hills residents of the contamination, as required by Missouri law. As
a result, the complaint stated, class members “suffered injury and damages including,
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but not limited to, the payment of monies to the Defendants for rent, water and sewer
systems; the diminution in value of . . . property; costs of relocation; purchasing
alternative sources of water; mental anguish and other damages.” The complaint
additionally alleged that Collier promised to build a picnic area, basketball court, and
other amenities at Autumn Hills, and never did. The complaint asserted claims for
fraud, violation of the Missouri Merchandising Practice Act, breach of the implied
warranty of habitability, negligence, negligence per se, and breach of contract.
Collier informed each of the Insurers of the complaint, and demanded
indemnity and defense. Each of the Insurers declined. Thereafter, Williams entered
into an agreement with Collier, which provided that Collier would assign the rights
to its insurance proceeds to Williams, as class representative. In exchange, Williams
agreed that if the class obtained judgment against Collier, the class’ recovery would
be limited to those insurance proceeds. This type of agreement is specifically
authorized by Missouri law. See Mo. Rev. Stat. § 537.065.
The state court held an evidentiary hearing to determine liability. At the
hearing, Williams dismissed all claims except for the negligence claim, and orally
amended the pleadings to add a claim for trespass. Shortly after the hearing, the state
court entered findings of fact, conclusions of law, and a judgment in favor of the
class. Specifically, the state court concluded that Collier “pump[ed] water with levels
of combined Radium 226 and Radium 228 and Gross Alpha Particle Activity levels
that exceeded the established maximums.” The state court also concluded that the
class suffered bodily injury and property damage as a result of the Radium and alpha
particle activity in the water. On August 28, 2013, after a separate hearing on
damages, the state court awarded the plaintiffs $70,085,000 for medical monitoring,
and $11,952,000 for the loss in value to their homes.
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On October 18, 2013, Williams filed an equitable garnishment action in state
court against the Insurers and Collier pursuant to Missouri Revised Statute § 379.200,
which provides that if a plaintiff’s judgment against a defendant is not satisfied within
thirty days, “the judgment creditor may proceed in equity against the defendant and
the insurance company to reach and apply the insurance money to the satisfaction of
the judgment.” The complaint stated that Williams was bringing the equitable
garnishment action “as class representative, by and through class counsel.”
The Insurers removed the case to the United States District Court for the
Eastern District of Missouri, asserting jurisdiction under the Class Action Fairness
Act (CAFA), 28 U.S.C. § 1332(d). Williams moved to remand, arguing that the
equitable garnishment action was not a “class action” as defined by § 1332(d)(1)(B).
The district court1 denied the motion on April 8, 2014, concluding that although the
garnishment action was not brought under a statute specifically authorizing class
action suits, it was a class action under CAFA because Williams filed it on behalf of
a class. Later, after the case was reassigned to a different district court judge,2
Williams filed a renewed motion to remand, which the district court denied on
July 28, 2015.
The Insurers each moved for judgment on the pleadings. Each argued that it
was not obligated to defend or indemnify Collier, because none of the claims asserted
in the Original Action were covered by the policies issued to Collier. The district
court granted judgment on the pleadings in favor of the Insurers on March 2, 2015.
First, it concluded as a matter of law that the allegations that Autumn Hills’ drinking
1
The Honorable Judge Stephen N. Limbaugh, Jr., United States District Judge
for the Eastern District of Missouri.
2
The Honorable Judge Ronnie L. White, United States District Judge for the
Eastern District of Missouri.
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water supply contained illegal levels of Radium, alpha particle activity, and coliform
bacteria fell within a pollution exclusion contained in each policy. Second, it
concluded as a matter of law that the allegations that Collier failed to build promised
amenities at Autumn Hills were not covered by the policies because the policies did
not provide coverage for breach of contract.
At that point, Collier still had not been served with process. On March 3, 2015,
the district court ordered Williams to show cause as to why Collier should not be
dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure. Williams responded, explaining that if she filed an appeal before
obtaining service on Collier, the Eighth Circuit might deem the appeal premature, and
remand it to the district court. Williams then served Collier. Collier failed to appear,
and Williams moved for a default judgment, which was granted on August 25, 2015.
On October 8, 2015, the court set aside the default judgment against Collier and
allowed Collier to file a motion to dismiss, which it then denied.
On October 21, 2015, the district court entered a “Consent Judgment” in favor
of Collier. The order stated, “The only remaining defendant in this equitable
garnishment action is Collier. Collier is a nominal but necessary party under
Missouri’s equitable garnishment statute. Mo. Rev. Stat. § 379.200. Based on its
prior ruling, the Court finds no relief can be obtained against Collier under Mo. Rev.
Stat. § 379.200 and the Court must enter judgment in favor of Collier.” Counsel for
Collier and Williams both signed the judgment. Williams filed a notice of appeal on
November 2, 2015.
II. Discussion
Williams appeals the district court’s denials of her two motions to remand, as
well as the district court’s grant of judgment on the pleadings in favor of the Insurers,
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and grant of consent judgment in favor of Collier. Before we reach Williams’
arguments, we must consider the Insurers’ contention that we lack jurisdiction over
this appeal.
A. Jurisdiction over appeal
As an initial matter, the Insurers contend that we lack jurisdiction to consider
this appeal. They argue that a consent judgment is not appealable, that the March 2,
2015, judgment on the pleadings was a final judgment, and that the district court erred
in granting Williams an extension of time to file a notice of appeal to the judgment
on the pleadings. The Insurers previously moved to dismiss this appeal on the same
grounds. An administrative panel denied that motion without comment. This court
has an ongoing obligation to consider its own jurisdiction. United States v. Stanko,
762 F.3d 826, 828 n.3 (8th Cir. 2014) (per curiam). However, “an administrative
panel’s denial of a motion to dismiss for lack of jurisdiction typically ‘is the law of
the case, ordinarily to be adhered to in the absence of clear error or manifest
injustice.’” Id. (quoting McCuen v. Am. Cas. Co., 946 F.2d 1401, 1403 (8th Cir.
1991)).
First, the Insurers argue that a consent judgment like the one the district court
entered in favor of Collier is not appealable. They further argue that all of the district
court’s orders prior to the consent judgment merge into the consent judgment, and,
therefore, are likewise not appealable. We have previously held that appellate
jurisdiction exists over all “final decisions,” regardless of what form they take. See
Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685, 689 (8th Cir. 1999)
(holding that there is appellate jurisdiction over a voluntary dismissal without
prejudice, but noting that an appellate court has discretion to reverse a district court’s
grant of voluntary dismissal, or to deem an ambiguous voluntary dismissal to be with
prejudice). Here, the consent judgment was a final decision because it
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unconditionally disposed of the last of Williams’ unresolved claims.3 Thus, we have
jurisdiction over the appeal of the consent judgment.
However, there is a non-jurisdictional limitation on appeals from consent
judgments: Generally, where a party consents to a judgment, it has waived its right
to appeal the claims disposed of by that judgment. See Scanlon v. M.V. SUPER
SERVANT 3, 429 F.3d 6, 8 (1st Cir. 2005) (collecting cases); Walling v. Miller, 138
F.2d 629, 631 (8th Cir. 1943). But several courts have recognized an exception to
this general rule, holding that a party has not waived its right to appeal a consent
judgment when the consent judgment followed a ruling that was, as a practical matter,
case-dispositive. Those courts reason that in such circumstances, the party adverse
to the dispositive ruling has consented to putting the ruling in its final form, not to the
substance of the judgment. See Taylor Brands, LLC v. GB II Corp., 627 F.3d 874,
878 (Fed. Cir. 2010) (stipulated judgment was appealable where it followed a partial
summary judgment order that was practically case-dispositive); OFS Fitel, LLC v.
Epstein, Becker & Green, P.C., 549 F.3d 1344, 1357 (11th Cir. 2008) (consented-to
judgment of dismissal was appealable where it followed the district court’s exclusion
of the appellant’s expert witness, and the appellant’s legal malpractice claims
inherently required the testimony of an expert witness); The Ansaldo San Giorgio I,
73 F.2d 40, 41 (2d Cir. 1934) (consent decree was appealable where it “merely carried
into effect the court’s previous decision on a litigated issue”); cf. United States v.
Procter & Gamble Co., 356 U.S. 677, 679–80 (1958) (judgment of dismissal was
appealable where the government refused to obey a district court order to produce
grand jury transcripts, and the government asked the district court to order dismissal
3
Of course, not all consent judgments are necessarily final judgments. See
Ruppert v. Principal Life Ins. Co., 705 F.3d 839, 842 (8th Cir. 2013) (holding that a
consent judgment was not final where it incorporated a settlement agreement that
permitted the appellant to reinstate his settled claims if he was successful in appealing
an earlier adverse ruling).
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as a sanction—rather than civil contempt or some other sanction—in order to
expedite review).
Here, the record shows that Williams consented to entry of judgment because
Collier was a nominal defendant, and, as a result, the district court’s grant of
judgment on the pleadings in favor of the Insurers effectively disposed of Williams’
entire case. Under these circumstances, we conclude that Williams’ consent to entry
of judgment against her represented consent to the form, rather than the substance,
of the judgment. Accordingly, Williams has not waived her right to appeal the
consent judgment.
Next, the Insurers argue that we have no jurisdiction over the appeal of the
March 2, 2015, judgment on the pleadings entered in favor of the Insurers.
According to the Insurers, the judgment on the pleadings was a final, appealable
order, and the district court abused its discretion in granting Williams an extension
of time to file its notice of appeal of the judgment. Thus, the Insurers argue, the
notice of appeal of the judgment on the pleadings was filed out of time, depriving this
court of jurisdiction.
A judgment that disposes of claims against some, but not all, defendants is
generally not considered to be final and appealable. Fed. R. Civ. P. 54(b). However,
it is not “necessary for the district court to have disposed of [an unserved party] to
make the judgment entered . . . final and appealable” because an unserved party is not
a “party” under the meaning of Federal Rule of Civil Procedure 54(b). Young v. Mt.
Hawley Ins. Co, 864 F.2d 81, 83 (8th Cir. 1988) (per curiam). Thus, the Insurers
argue, the judgment on the pleadings was a final, appealable order even though
Collier had not yet been served when the judgment on the pleadings was entered.
But “[a] district court decision is not final, and thus not appealable, unless there
is some clear and unequivocal manifestation by the trial court of its belief that the
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decision made, so far as [the court] is concerned, is the end of the case.” Waterson
v. Hall, 515 F.3d 852, 855 (8th Cir. 2008) (second alteration in original) (quoting
Hunt v. Hopkins, 266 F.3d 934, 936 (8th Cir. 2001)). Here, there was no clear and
unequivocal manifestation by the district court that the judgment on the pleadings
disposed of the case. Rather, the day after entering the judgment on the pleadings,
the district court ordered Williams to show cause as to why Collier should not be
dismissed. Cf. Hunt, 266 F.3d at 936 (explaining that the “presumption of finality”
that attaches to a dismissal order “erodes . . . when the district court clearly manifests
an intention to permit the plaintiff’s action to continue once new pleadings are filed”).
The district court continued to exercise jurisdiction over the case until the entry of
the October 21, 2015 consent judgment against Collier. Thus, in the district court’s
view, the judgment on the pleadings was not the end of the case. As such, we
conclude that the judgment on the pleadings was not a final order, and, therefore,
Williams did not file her notice of appeal out of time.
B. Order denying remand
Williams appeals the district court’s denials of her two motions to remand the
present action to state court. She argues that the district court did not have
jurisdiction over the present action because it is not a “class action” as defined by
CAFA. We review the district court’s interpretation of CAFA de novo. Brown v.
Mortg. Elec. Registration Sys., Inc., 738 F.3d 926, 931 (8th Cir. 2013).
Section 1332(d)(2) of Title 28 of the United States Code states that federal
district courts have jurisdiction over any “civil action in which the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,
and is a class action” where “any member of a class of plaintiffs is a citizen of a State
different from any defendant.” Section 1332(d)(1) defines “class action” as “any civil
action filed under rule 23 of the Federal Rules of Civil Procedure or similar State
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statute or rule of judicial procedure authorizing an action to be brought by 1 or more
representative persons as a class action.”
In the motions to remand, Williams argued that the present action is not a class
action because it was not “filed under” Rule 23 or a state-law analogue. The parties
do not dispute that the complaint in the Original Action referred to Missouri Rule of
Civil Procedure 52.08, or that Rule 52.08 is analogous to Rule 23. But, Williams
points out, the complaint in the present action does not refer to Rule 52.08; rather, it
refers only to Missouri Revised Statute § 379.200—the equitable garnishment statute
that allows a plaintiff to satisfy a judgment against a tortfeasor’s insurer.
The district court concluded that, although labeled otherwise, the present action
is a class action because it is a class action in substance. In the district court’s view,
the fact that Williams brought the present action in her capacity as class
representative “necessarily implies application of procedural rules that certified the
class (and authorized plaintiff to act on behalf of that class) in the first place.” In
reaching this conclusion, the district court relied on Addison Automatics, Inc. v.
Hartford Casualty Insurance Co., 731 F.3d 740 (7th Cir. 2013).
In Addison, a plaintiff represented a class in a state-court class action. 731
F.3d at 741. The defendant agreed to entry of judgment against it, and the class
agreed to execute the judgment against the defendant’s insurer. Id. The class
representative filed a separate lawsuit against the insurer in state court, but purported
to bring the action in an individual, rather than representative, capacity. Id. at 742.
The insurer removed the case to federal court, asserting jurisdiction under CAFA. Id.
The district court granted the class representative’s motion to remand to state court,
finding that the action was not a class action. Id. The Seventh Circuit reversed,
concluding that although the case was brought as an individual suit, “[b]y pursuing
the rights assigned to it as class representative in the state court class action, [the
plaintiff] is necessarily continuing that class action.” Id. at 743.
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Williams argues that Addison and the district court incorrectly interpreted
CAFA when they concluded it was appropriate to look to the substance of a lawsuit
to determine whether it is a class action. In her view, under the plain language of
CAFA, an action is “filed under” Rule 23 or a state-law analogue only where the
complaint expressly invokes such a rule, which the complaint in the present action
does not do. Further, Williams contends that the complaint seeks no relief under class
rules, and requires no resolution of class-related issues. Thus, Williams argues, this
action is not a class action.
In support of her interpretation of CAFA, Williams cites cases from other
circuits that have found no CAFA jurisdiction where a plaintiff brings a lawsuit in a
representative capacity and cites a state statute or rule that is not analogous to Rule
23. For example, the Third Circuit held that there was no CAFA jurisdiction over a
case brought under Rule 2152 of the Pennsylvania Rules of Civil Procedure, which
allows members of an unincorporated association to sue on behalf of the association.
Erie Ins. Exch. v. Erie Indem. Co., 722 F.3d 154, 158–59 (3d Cir. 2013). The court
concluded that Rule 2152 was not sufficiently analogous to Rule 23 to justify CAFA
jurisdiction, because Rule 2152 “contains none of the defining characteristics of Rule
23,” such as class certification mechanisms, requirements of numerosity or
commonality, or requirements that absent class members be notified of the substance
of the lawsuit. Id. Other courts have applied the same reasoning to other state
statutes that allow a plaintiff to sue in a representative capacity, but are otherwise
dissimilar to Rule 23. See, e.g., Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117,
1122–23 (9th Cir. 2014) (finding that California’s Private Attorneys General Act is
not sufficiently similar to Rule 23); Purdue Pharma L.P. v. Kentucky,704 F.3d 208,
216 (2d Cir. 2013) (finding that a parens patriae lawsuit brought by a state attorney
general is not similar to Rule 23); West Virginia ex rel. McGraw v. CVS Pharm., Inc.,
646 F.3d 169, 176 (4th Cir. 2011) (same).
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Williams argues that, like the plaintiffs in the cases she cites, she is entitled to
bring suit under whatever law she chooses. And, she argues, like those plaintiffs, she
has chosen to bring suit pursuant to a state statute that is not analogous to Rule
23—Missouri’s equitable garnishment statute. However, the circumstances of this
case distinguish it from the line of cases Williams relies on. In each of those cases,
the plaintiff cited some rule or statute that purportedly allowed the plaintiff to proceed
as the representative of a group of people, but that otherwise was not sufficiently
similar to Rule 23 for purposes of CAFA. Here, the equitable garnishment statute
includes no provision authorizing a plaintiff to bring suit on behalf of others. Rather,
it is clear from the pleadings that Williams can bring this case only because of her
status as the representative of the class certified under Rule 52.08, an undisputed
analogue of Rule 23. See Sondel v. Nw. Airlines, Inc., 56 F.3d 934, 939 (8th Cir.
1995) (holding that class representatives retain their fiduciary duties to the class even
in separate proceedings).
Williams suggests that this fact is irrelevant, because the present case does not
involve class-related questions. She notes that the complaint in the present action
does not seek class certification, and asserts that there are no “notice, opt-out, or court
approval issues involved” in the present case. And, she points out, the district court
did not actually resolve any class-related questions in its disposition of the case.
Thus, she argues, even though she is proceeding on behalf of a class, that
circumstance has no bearing on this case. We disagree. Even if recertification is
unnecessary,4 the present action implicates other class-related issues. For example,
4
The court declines to address whether Williams is correct that the class would
not be required to be certified in the present action. See Zimmermann v. Epstein
Becker & Green, P.C., 657 F.3d 80, 85 (1st Cir. 2011) (holding that although the
plaintiff class was certified in a previous action, it was required to be certified anew
when it brought claims against new defendants whose liability would have to be
separately proven). But see Addison, 731 F.3d at 743 (“[The plaintiff] urges us to
consider the present suit in a vacuum, arguing that there is no need to ‘reconstitute’
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if Williams chose to dismiss or settle this case in state court, the court would have
been obligated to direct Williams to give notice to the members of the class under
Rule 52.08(e). Again, Williams filed the complaint not in her individual capacity, but
as class representative. And the fact that the district court did not ultimately resolve
any class-related issues is irrelevant; a federal court’s jurisdiction under CAFA is
“measured at the time of removal,” and does not depend on the ultimate outcome of
the case. See Grawitch v. Charter Commc’ns, Inc., 750 F.3d 956, 959 (8th Cir. 2014).
In other words, although the complaint omits reference to Rule 52.08, it is clear
from the face of the complaint that Rule 52.08 is the precise rule under which
Williams proceeds in her effort to enforce the judgment obtained for the benefit of the
class. Thus, because Rule 52.08 is undisputedly analogous to Rule 23, we conclude
that this action was “filed under” a state-law analogue to Rule 23, and is a class action
for purposes of CAFA jurisdiction. To hold otherwise would prioritize a complaint’s
use of magic words over its factual allegations. See Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations consistent with the
legislative purpose are available.”). If we interpreted “any civil action filed under
Rule 23” or a state-law analogue to refer only to cases that specifically mention Rule
23 or a state-law analogue, as Williams proposes, a plaintiff could avoid federal
jurisdiction for a lawsuit that resembles a class action in all respects simply by
omitting from the complaint the name of the rule or statute under which she proceeds.
Additionally, we note that our conclusion is in line with the legislative intent
behind CAFA. In enacting CAFA, Congress expressed concern about lawyers who
“‘game’ the procedural rules and keep nationwide or multi-state class actions in state
courts whose judges have reputations for readily certifying classes and approving
the class here. On the contrary, the class has been and remains certified pursuant to
Illinois law . . . .”).
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settlements without regard to class member interests.” S. Rep. No. 109-14, at 4
(2005). Thus, Congress emphasized that “class action” should be “interpreted
liberally.” Id. at 35. Congress explained, “[CAFA’s] application should not be
confined solely to lawsuits that are labeled ‘class actions’ by the named plaintiff or
the state rulemaking authority. Generally speaking, lawsuits that resemble a
purported class action should be considered class actions for the purpose of applying
these provisions.” Id. We conclude that allowing class-action plaintiffs to avoid
federal jurisdiction simply by omitting explicit reference to the class-action rule they
intend to proceed under would promote the kind of procedural gaming CAFA was
enacted to prevent.
Finally, Williams argues that another provision of CAFA prohibits removal of
an action to enforce a judgment on behalf of a previously certified class. Section
1332(d)(8) states, “[Section 1332(d)] shall apply to any class action before or after
the entry of a class certification order by the court with respect to that action.” In
Williams’ view, the phrase “with respect to that action” establishes that CAFA
jurisdiction exists only over class actions in which a class has been or will be
certified. But this interpretation is at odds with the plain language of § 1332(d)(8);
it refers to “a” class certification order, not “the” class certification order. This
phrasing may imply “an expectation that a class will or at least may be certified
eventually,” but it does not limit federal jurisdiction to cases in which a class
certification order is actually issued. Cunningham Charter Corp. v. Learjet, Inc., 592
F.3d 805, 806 (7th Cir. 2010). Furthermore, to hold that § 1332(d)(8) limits
jurisdiction in that way would be at odds with our decision in Buetow v. A.L.S.
Enterprises, Inc., in which we noted that federal jurisdiction over a class action
continues even after a district court has denied class certification. 650 F.3d 1178,
1182 n.2 (8th Cir. 2011) (citing Learjet, Inc., 592 F.3d at 806)). Accordingly, it is
apparent that § 1332(d)(8) merely clarifies when it is permissible to remove a case,
and does not impose prerequisites for jurisdiction beyond those articulated in
§ 1332(d)(2).
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In sum, because Williams brought this action on behalf of a class previously
certified under a state-law analogue to Rule 23, the action was necessarily “filed
under” Rule 23 or a state-law analogue, even though the complaint omits explicit
reference to such a rule. The district court therefore had jurisdiction over the present
matter.
C. Judgment on the pleadings
Next, Williams appeals the district court’s grant of judgment on the pleadings
to the Insurers, arguing that the district court erred in concluding that the Insurers had
no duty to defend or indemnify Collier in the Original Action. We review de novo
the grant of a motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015).
1. Duty to defend
The district court compared the complaint in the Original Action with the
insurance policies, and concluded that the Insurers had no duty to defend Collier.
First, the district court concluded that the allegations that Autumn Hills’ water
contained illegal levels of Radium, alpha particle activity, and coliform bacteria did
not give rise to a claim potentially within the policies’ coverage, because each policy
contained a provision excluding coverage for bodily injury or property damage
caused by pollutants. Second, the district court concluded that the allegations that
Collier failed to build promised amenities did not give rise to claims potentially
within the policies’ coverage because the policies did not cover breaches of contract.
Williams contests both of these conclusions. The parties agree that Missouri law
applies to the interpretation of the insurance policies.
Under Missouri law, if an insurer unjustifiably refuses to defend a claim
because it is outside the policy, the insurer will be “liable to the insured for all
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resultant damages from that breach of contract.” Schmitz v. Great Am. Assur. Co.,
337 S.W.3d 700, 710 (Mo. banc 2011) (quoting Whitehead v. Lakeside Hosp. Ass’n,
844 S.W.2d 475, 481 (Mo. Ct. App. 1992)). But “[w]here the claim is actually
outside the policy coverage, the refusal of the insurer to defend is a justified refusal,
the insurer is not guilty of a breach of contract and incurs no legal liability by its
action.” Whitehead, 844 S.W.2d at 481.
An insurer’s duty to defend “arises whenever there is a potential or possible
liability to pay based on the facts at the outset of the case and is not dependant on the
probable liability to pay based on the facts ascertained through trial.” McCormack
Baron Mgmt. Servs., Inc. v. Am. Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 170
(Mo. banc 1999) (quoting 13 John A. Appleman & Jean Appelman, Insurance Law
and Practice § 4684 (rev. vol. 1976)). To determine whether an insurer had a duty to
defend, courts must “compar[e] the language of the insurance policy with the
allegations in the complaint.” Id. If the complaint “alleges facts that give rise to a
claim potentially within the policy’s coverage, the insurer has a duty to defend.” Id.
at 170–71.
In construing insurance policies, Missouri courts apply “the meaning which
would be attached by an ordinary person of average understanding if purchasing
insurance, and resolves ambiguities in favor of the insured.” Burns v. Smith, 303
S.W.3d 505, 509 (Mo. banc 2010) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d
129, 132 (Mo. banc 2007)). The burden of proving an insurance exclusion lies with
the insurer, and insurance exclusions are strictly construed against the insurer. Id. at
510.
a. Pollution exclusion
Williams first contends that the pollution exclusion contained in each insurance
policy does not, as a matter of law, bar coverage for the claims that Autumn Hills’
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water had illegal levels of Radium, alpha particle activity, and coliform bacteria.
Each of the policies Employers issued to Collier provided that the policy would not
cover “‘[b]odily injury’ or ‘property damage’ arising out of the actual, alleged or
threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’
. . . [a]t or from any premises, site or location which is or was at any time owned or
occupied by, rented or loaned to, any insured.” Each of the policies issued by Owners
contained an identical provision. Each of the policies issued by Capitol provided that
the policy would not cover “‘[b]odily injury’ or ‘property damage’ which would not
have occurred in whole or part but for the actual, alleged or threatened discharge,
dispersal, seepage, migration, release or escape of ‘pollutants’ at any time.” All of
the policies contained a provision stating, “‘Pollutants’ mean any solid, liquid,
gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes,
acids, alkalis, chemicals and waste. Waste includes materials to be recycled,
reconditioned or reclaimed.”5
The district court determined as a matter of law that the pollution exclusions
applied to Williams’ claims that Autumn Hills’ water contained illegal levels of
Radium, alpha particle activity, and coliform bacteria. First, the district court noted
that alpha particles are emitted by Radium during the decay process, that alpha
particles can travel only very short distances away from Radium, and that Radium is
indisputably a solid. In so concluding, the district court cited an Environmental
Protection Agency (EPA) fact sheet. The district court further determined that
Radium and alpha particles are contaminants under the plain meaning of that word.
Next, the district court concluded that coliform bacteria are also solid, liquid,
gaseous, or thermal, and that they are contaminants under the plain meaning of the
5
The policy issued by Employers effective March 13, 1999, and the policy
issued by Owners effective April 1, 2005, both contain slight variations from the
quoted language. Each reads, “Pollutants means any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals
and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”
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word. Thus, the district court explained, “There can be no dispute that the
contaminants at issue here are pollutants under the policy.” Williams contends that
the district court erred in reaching this conclusion as a matter of law.
i. Alpha particle activity and Radium
As an initial matter, Williams argues that the district court erred in relying on
an EPA fact sheet to determine that Radium is a solid that emits alpha particles.
Williams contends that the district court did not take judicial notice of the EPA fact
sheet, and that, even if the district court had done so, such judicial notice would have
been inappropriate.
On a motion for judgment on the pleadings, matters outside the pleadings
generally cannot be considered without converting the motion to one for summary
judgment. Fed. R. Civ. P. 12(d). However, courts may “consider ‘matters
incorporated by reference or integral to the claim, items subject to judicial notice,
matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint whose authenticity is unquestioned;’ without
converting the motion into one for summary judgment.” Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (quoting 5B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.
2004)). Under Federal Rule of Evidence 201(b), a court may take judicial notice of
a “fact that is not subject to reasonable dispute because it . . . can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”
This can include well-established scientific theories and principles. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.11 (1993). “We review a district
court’s decision to take judicial notice for abuse of discretion.” Am. Prairie Constr.
Co. v. Hoich, 560 F.3d 780, 796 (8th Cir. 2009).
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Here, it is clear that the district court took judicial notice of the fact that
Radium is a solid that emits alpha particles.6 Although the court did not use the
specific phrase “judicial notice,” the district court implicitly acknowledged the
limitations on its ability to consider matters outside the pleadings. It used phrases
like “[t]here can be no dispute” and “Radium is indisputably a solid which emits
alpha particles”—language intended to address Rule 201’s requirement that only facts
“not subject to reasonable dispute” can be judicially noticed.
Furthermore, the district court did not abuse its discretion in taking judicial
notice of the fact that Radium is a solid that emits alpha particles. Williams contends
that judicial notice was inappropriate because there were disputed matters at hand.
We disagree. Although Williams disputes that alpha particles are solid, liquid,
gaseous, or thermal, she does not meaningfully dispute that Radium is a solid, or that
alpha particles are emitted by Radium. And there can be no reasonable dispute on
those points, upon which numerous widely available sources demonstrate broad
consensus. E.g., Radium, Merriam-Webster’s Collegiate Dictionary 1026 (11th ed.
2012) (defining “radium” as a “metallic element that . . . occurs in combination in
minute quantities in minerals (as pitchblende or carnotite),
[and] emits alpha particles”); Radium, Britannica Academic,
http://academic.eb.com/levels/collegiate/article/62430 (log-in required) (last visited
Dec. 30, 2016) (explaining that Radium is a “silvery white metal” that releases alpha
particles).
6
Williams’ argument focuses on whether the district court properly took
judicial notice of the EPA fact sheet itself. But Rule 201 permits courts to take
judicial notice only of facts. See Fed. R. Evid. 201; Crawford v. Countrywide Home
Loans, Inc., 647 F.3d 642, 649–50 (7th Cir. 2011) (affirming the district court’s
refusal to take judicial notice of various documents where the offering party failed to
delineate the particular facts to be noticed based on the documents). Thus, the proper
inquiry is whether the district court properly took judicial notice of the fact that
Radium is a solid that emits alpha particles, not whether the district court properly
took judicial notice of the source of that fact—the EPA fact sheet.
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Next, Williams argues that the district court erred in concluding that the
pollution exclusion applies because alpha particles are not, as a matter of law,
“pollutants” under the policy. Specifically, Williams argues that there is a question
of fact as to whether alpha particles are solid, liquid, gaseous, or thermal, and that
the terms “irritants” and “contaminants” are ambiguous and arguably do not apply
to alpha particles. But Williams frames the issue too narrowly. The policies exclude
coverage for bodily injury or property damage either “arising out of” the dispersal
of pollutants, or which “would not have occurred in whole or part but for” the
dispersal of pollutants. It is not disputed the alpha particle activity in Autumn Hills’
water supply resulted directly from the presence of Radium in the water—the alpha
particles were emitted by the Radium. Thus, to the extent alpha particles caused the
alleged bodily injury or property damage, that damage is excluded from the policy
if the term “pollutants,” as defined by the policies, includes either alpha particles or
Radium. We conclude that, regardless of whether alpha particles are pollutants,
Radium is a pollutant under the policies.
As explained above, Radium is indisputably a solid at room temperature.
Thus, we turn to the question of whether Radium is, as a matter of law, an irritant or
contaminant. In Williams’ view, the terms “irritant” and “contaminant” are
ambiguous, because virtually any substance can be an irritant or contaminant in some
contexts, and alpha particle activity is naturally occurring and not always harmful.
Thus, Williams argues, we are required to construe these terms against the Insurers
and decline to apply the pollution exclusion.
Where a particular term is not defined in an insurance policy, Missouri courts
look to the “ordinary meaning of the word, as set forth in the dictionary.” Schmitz,
337 S.W.3d at 708. The dictionary definition of “contaminant” is “something that
contaminates.” Merriam-Webster’s Collegiate Dictionary 269 (11th ed. 2012). To
“contaminate,” in turn, is defined as “to soil, stain, corrupt, or infect by contact or
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association,” or “to make unfit for use by the introduction of unwholesome or
undesirable elements.” Id.
Missouri courts have held that the term “contaminant” is ambiguous in some
circumstances, and unambiguous in others, depending on the purported pollutant and
the circumstances of its dispersal. The relevant question is not whether the term
“contaminant” “might be found ambiguous regarding some other substance in a
different factual setting,” but whether the term is ambiguous as applied to the
particular substance in the factual setting at issue. Cas. Indem. Exch. v. City of
Sparta, 997 S.W.2d 545, 551 (Mo. Ct. App. 1999); see also United Fire & Cas. Co.
v. Titan Contractors Serv., Inc., 751 F.3d 880, 886 n.3 (8th Cir. 2014) (explaining
that under Missouri law, the term “pollutant” in an insurance policy provision “may
be ambiguous with respect to the factual situation presented by one claim but
unambiguous as to another”). For example, in Cincinnati Insurance Company v.
German St. Vincent Orphan Association, Inc., a Missouri Court of Appeals held that
although there are some circumstances in which it would be ambiguous whether a
given substance is a contaminant, the word unambiguously applies to asbestos that
was excavated and pulverized into thick clouds of dust that filled a building. 54
S.W.3d 661, 666 (Mo. Ct. App. 2001).
We conclude that in the factual context of this case, Radium is unambiguously
a contaminant. Williams may be correct that there are circumstances in which
Radium and its emissions might not be harmful. But here, the complaint alleges that
illegal levels of Radium were present in the water supply, creating a serious risk to
the health of Autumn Hills residents, which required them to relocate or purchase
alternative sources of water. Additionally, the complaint in the Original Action itself
refers to Radium and its emissions as “radiological contaminants” throughout, and
alleges that the levels of Radium in the water exceeded the “Maximum Contaminant
Level” set forth by Missouri’s Department of Natural Resources. Thus, in the
context of the allegations set forth in the complaint in the Original Action, Radium
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is unambiguously a contaminant under the ordinary meaning of the word; it both
“corrupted” the water “by contact,” and made it “unfit for use.” As such, the
pollution exclusion in each policy bars coverage for bodily injury or property
damage alleged to have resulted from the presence of Radium or alpha particles in
Autumn Hills’ water supply.
ii. Coliform bacteria
Williams next argues that the district court erred in concluding as a matter of
law that coliform bacteria are pollutants. As with the Radium and alpha particles,
Williams argues first that there is a genuine dispute of fact as to whether coliform
bacteria are solid, liquid, gaseous, or thermal, and second that coliform bacteria are
not unambiguously contaminants.
First, in Williams’ view, to be a pollutant as defined by the policies, a
substance must exist in a purely solid, liquid, gaseous, or thermal form. Williams
points out that coliform bacteria are living organisms, and do not fit into any one of
those categories. But read as a whole, the definition of “pollutants” in each policy
encompasses substances that contain a combination of solid, liquid, gaseous, and
thermal elements. The provision lists examples of pollutants including, among other
things, “smoke” and “waste.” We take judicial notice of the fact that smoke is a
mixture of solid and liquid particles suspended in gas. See Merriam-Webster’s
Collegiate Dictionary 1178 (11th ed. 2012) (defining smoke as “the gaseous products
of burning materials . . . made visible by the presence of small particles of carbon”);
Bukowski, Richard W., AccessScience (2014), Smoke,
https://doi.org/10.1036/1097-8542.629200 (log-in required) (stating that smoke is
a “dispersion of small, solid particles and liquid droplets suspended in a gaseous
medium”). Similarly, waste can be a combination of solid and liquid materials, like
sewage sludge. Like other living organisms, coliform bacteria is made up of a
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combination of solid, liquid, gaseous, and thermal elements. Thus, it is a pollutant
under the plain language of the policy.
Next, Williams argues that coliform bacteria are not contaminants, arguing
that the term is ambiguous, and that it arguably does not apply to coliform bacteria,
which occur naturally and are not necessarily harmful in every context. But our
reasons for concluding that Radium is a contaminant apply with equal force to
coliform bacteria: The coliform bacteria are alleged to have posed a health risk to
Autumn Hills residents, and to have exceeded “contamination levels” set by
Missouri’s Department of Natural Resources. Accordingly, we conclude as a matter
of law that the pollution exclusion contained in each policy bars coverage for
damages resulting from the presence of coliform bacteria in Autumn Hills’ water
supply.
b. Failure to build amenities
Williams next contends that the district court erred in concluding as a matter
of law that the Insurers had no duty to defend Collier against the class’ claims for
negligence and breach of contract based on the allegations that Collier failed to build
various promised amenities, including a picnic area, basketball court, and softball
diamond, at Autumn Hills.
The district court determined that these allegations did not give rise to claims
potentially within the policies’ coverage, because the policies cover only “bodily
injury and property damage” resulting from “occurrences.” The Eighth Circuit has
previously concluded that Missouri law does not consider breaches of contract to be
occurrences. Secura Ins. v. Horizon Plumbing, Inc., 670 F.3d 857, 862–63 (8th Cir.
2012). Accordingly, the district court held that the Insurers had no duty to defend
Collier against the breach of contract claim. It further found that the Insurers had no
duty to defend the negligence claim premised on Collier’s alleged failure to build
-23-
promised amenities because the factual allegations sounded in contract, not tort. See
McCormack Baron Mgmt. Servs., Inc., 989 S.W.2d at 170–71 (an insurer has a duty
to defend where the complaint “alleges facts that give rise to a claim potentially
within the policy’s coverage” (emphasis added)); cf. Brand v. Kansas City
Gastroenterology & Hepatology, LLC, 414 S.W.3d 546, 553 (Mo. Ct. App. 2013)
(concluding that there was no duty to defend where the policy did not cover
intentional torts, and the original petition asserted a “negligence” claim premised on
allegations of intentional conduct).
Williams does not dispute that none of the insurance policies cover damages
resulting from breach of contract. However, she argues that the district court erred
in finding that her negligence claim was actually a breach of contract claim.
Williams points out that under Missouri law, the same set of facts may give rise to
both a breach of contract claim and a negligence claim. See Schreibman v. Zanetti,
909 S.W.2d 692, 701 (Mo. Ct. App. 1995). Here, however, we agree with the district
court that Williams has not alleged facts that would support a negligence claim.
Rather, all Williams alleges is that Collier promised to build certain amenities, and
breached that promise. Thus, the Insurers had no duty to defend Collier on
Williams’ breach of contract or negligence claims based on Collier’s failure to build
amenities.
2. Duty to indemnify
The district court concluded that because the Insurers had no duty to defend
Collier, they likewise had no duty to indemnify Collier. Williams contends that this
was an error. She points out that while the duty to defend is determined by
examining the complaint, the duty to indemnify is determined by examining the facts
ultimately established at trial. See McCormack Baron Mgmt. Servs., Inc, 989
S.W.2d at 173. Thus, in Williams’ view, we should determine whether the Insurers
-24-
had a duty to indemnify Collier based on the factual findings of the state court in the
Original Action.
Under Missouri law, if the allegations of a complaint give rise to a potential
claim for coverage, but the facts ultimately proven at trial do not give rise to a claim
for coverage, then an insurer will have a duty to defend, but not indemnify, the
insured. See id. at 173–74 (concluding that the insurer had a duty to defend based
on the allegations of the complaint, but that the court could not determine whether
the insurer had a duty to indemnify until after the facts were developed). However,
the reverse is not true: Missouri courts have repeatedly held that where an insurer
has no duty to defend, it also has no duty to indemnify. E.g., Penn-Am. Ins. Co. v.
The Bar, Inc., 201 S.W.3d 91, 98 (Mo. Ct. App. 2006); Am. States Ins. Co. v.
Herman C. Kempker Const. Co., 71 S.W.3d 232, 236 (Mo. Ct. App. 2002); Superior
Equip. Co. v. Maryland Cas. Co., 986 S.W.2d 477, 484 (Mo. Ct. App. 1998).
Accordingly, we conclude that the district court did not err in finding as a matter of
law that the Insurers had no duty to indemnify Collier for the judgment in the
Original Action.
In sum, because the Insurers had no duty to defend or indemnify Collier for
the claims asserted in the Original Action, the district court did not err in granting
judgment on the pleadings to the Insurer.
III. Conclusion
We affirm the judgment of the district court.
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