Garrison Southfield Park, L.L.C. v. Aspen Specialty Ins. Co.

[Cite as Garrison Southfield Park, L.L.C. v. Aspen Specialty Ins. Co., 2022-Ohio-709.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Garrison Southfield Park L.L.C., :
Plaintiff-Appellant, :
No. 21AP-21
v. : (C.P.C. No. 17CV-1232)
Aspen Specialty Insurance Company et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on March 10, 2022
On brief: Benesch Friedlander Coplan & Aronoff LLP, and
Mark Tucker; Katten Muchin Rosenman LLP, and Philip A.
Nemecek, pro hac vice; King & Spalding LLP, and Karl R.
Heisler, pro hac vice, for appellant. Argued: Philip A.
Nemecek and Karl R. Heisler.
On brief: Janik L.L.P., Steven G. Janik, and Crystal L.
Maluchnik; Nicolaides Fink Thorpe Michaelides Sullivan
LLP, Matthew J. Fink, Amy Collins Cassidy, and Mark J.
Sobczak, for appellee Aspen Specialty Insurance Company.
Argued: Amy Collins Cassidy.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Garrison Southfield Park L.L.C. ("Garrison"), appeals the
December 18, 2020 decision and entry of the Franklin County Court of Common Pleas
granting summary judgment in favor of defendants-appellees Aspen Specialty Insurance
Company ("Aspen") and Closed Loop Refining and Recovery, Inc. ("Closed Loop"), and the
trial court's December 23, 2020 judgment entry. For the following reasons, we affirm.
No. 21AP-21 2
I. Facts and Procedural History
{¶ 2} This matter arises out of an insurance claim for environmental issues at two
properties located at 1655 and 1675 Watkins Road in Columbus, Ohio (collectively, the
"Watkins Road properties"). As will be detailed in this factual summary, Garrison alleged
that Aspen failed to honor its contractual obligations to provide coverage for the clean-up
of alleged pollution incidents at the Watkins Road properties.
A. Closed Loop's Operations at the Watkins Road Properties
{¶ 3} On April 6, 2012, Closed Loop entered into a lease agreement for 1675
Watkins Road with Garrison's predecessor in interest. Under the lease, Closed Loop stated
that its business at the property included "[w]arehousing, distribution, electronic recycling
and de-manufacturing of cathode ray tubes" ("CRTs"). CRTs are vacuum tubes primarily
composed of glass, including leaded glass, that were used as components of electronic
devices including televisions and computer monitors.1 Closed Loop accepted and processed
intact electronic devices, as well as separate CRTs and broken CRT glass, in order to
separate the leaded glass from the unleaded glass and retrieve other recyclable materials
from the electronic devices. The lease required Closed Loop to maintain specified
insurance policies, including a "Pollution and Remediation Legal Liability Policy,"
including the property owner as an additional insured party under all such policies. On
March 24, 2014, Closed Loop entered into a temporary occupancy agreement with Garrison
for the use of the property at 1655 Watkins Road. Under the terms of the temporary
1 Various sources have noted the regulatory efforts surrounding and environmental challenges posed by the
hazardous components contained in discarded electronic devices, specifically including CRTs. See United
States v. Richter, 796 F.3d 1173, 1179 (10th Cir.2015) ("CRTs cannot be disposed of in a landfill because of the
risk that the lead will leach into the soil."); Note: IDump: How the United States Should Use Disposal Bans to
Legislate Our Way Out of the Electronic Waste Crisis, 39 Wm. & Mary Envtl. L. & Pol'y Rev. 483, 488 (2015)
("The rapid shift in television technology from cathode ray tubes ('CRT') to liquid crystal display ('LCD') flat
screens has destroyed the recycling value of the older glass tube televisions. While the glass tubes used to be
melted down and profitably turned into new units, the obsolescence of CRT technology has destroyed any
business incentive to recycle the cathode ray tubes. As a result of these CRT televisions abruptly becoming
financially burdensome for the recycling companies to which they have been entrusted (and the serious image
and legal problems that would result if they simply disposed of the electronics in landfills themselves),
staggering amounts of CRT televisions and monitors have been abandoned in warehouses the size of football
fields, creating mountains of broken glass, billowing lead dust clouds and a costly clean up task for the state
and the warehouse owners."); Comment: Addressing the E-Waste Crisis: The Need for Comprehensive
Federal E-Waste Regulation within the United States, 14 Chap. L. Rev. 195, 209 ("In 2006, the EPA introduced
the CRT rule, which recognized CRTs as hazardous waste and placed regulations on their export."); United
States Environmental Protection Agency, Cathode Ray Tubes (CRTs), https://www.epa.gov/hw/cathode-ray-
tubes-crts-0 (accessed Mar. 10, 2022).
No. 21AP-21 3
occupancy agreement, Closed Loop was permitted to "use the Premises solely for
warehousing and storage purposes and for no other use." (July 7, 2017 Aspen Mot. for Sum.
Jgmt. ("MSJ"), Ex. A-32 at 14.) As with the lease for the 1675 Watkins Road property,
Closed Loop was required to maintain insurance policies naming Garrison as an additional
insured party.
B. Closed Loop's Insurance Policies with Aspen
{¶ 4} Pursuant to its obligations under the lease agreement and temporary
occupancy agreement for the Watkins Road properties, Closed Loop obtained a series of
insurance policies in the form of a Commercial General Liability and Environmental
Exposure Policy (the "GLEE policy") from Aspen.2 On the application for the GLEE policy,
Aspen asked Closed Loop a number of questions. When asked on the GLEE policy
application whether "[d]uring the last five years, has the applicant been prosecuted or is the
applicant currently being prosecuted for contravention of any standard or law relating to
the release or threatened release of a hazardous substance, hazardous waste or other
pollutant as defined by applicable environmental regulations," Closed Loop responded
"No." (MSJ, Ex. 15.) When asked to "[l]ist all claims made against the applicant during the
past 5 years for clean-up or response action, 'toxic tort' or other bodily injury or property
damage, resulting from the release of hazardous substances, hazardous waste, or other
pollutant, from this location or other locations owned [and] operated by the applicant, into
the environment," Closed Loop did not respond. (Ex. 15.) When asked on the GLEE policy
application whether "[a]t the time of signing this application, is the applicant's manager or
supervisor responsible for environmental affairs, control or compliance or any officer,
director or partner of the applicant aware of any facts or circumstances which may
reasonably be expected to result in a claim or claims being asserted against the applicant
for environmental cleanup, or for bodily injury or property damage arising from the release
of pollutants into the environment," Closed Loop responded "No." (Ex. 15.)
{¶ 5} The GLEE policy contains several terms and provisions at issue in the present
matter. A notice at the beginning of the first page of the GLEE policy provides as follows:
"Coverage Sections 3 and 4 contain Claims Made and Reported coverages and this Policy
otherwise contains provisions which restrict coverage and are unique. The insured should
2 On April 13, 2015, Closed Loop applied for the insurance policy at issue in this case.
No. 21AP-21 4
read the entire Policy carefully to determine rights, duties and what is and is not covered."
(MSJ, Ex. A-13, Part 1 at 7.)
{¶ 6} The GLEE policy defines "[p]ollutant" as "any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke, vapors, soot, silt, sediment, fumes, acids,
alkalis, chemicals, hazardous substances, petroleum hydrocarbons, low level radioactive
matter or waste, microbial matter including legionella pneumophila, medical, infectious or
pathological waste or waste materials, electromagnetic fields or biological agent."
(Emphasis omitted.) (Ex. A-13, Part 2 at 5.) "Pollution incident" is defined as "the
discharge, emission, seepage, migration, dispersal, release or escape of any pollutant into
or upon land, or any structure on land, the atmosphere or any watercourse or body of water
including groundwater, provided such pollutant is not naturally present in the environment
in the concentration or amounts discovered." (Emphasis omitted.) (Ex. A-13, Part 2 at 5.)
"Clean-up cost" is defined as "reasonable and necessary expense incurred with our written
consent, including legal expense and restoration cost, to investigate, abate, contain, treat,
remove, remediate, monitor, neutralize or dispose of contaminated air, soil, surface water
or groundwater or other contamination caused by a pollution incident," subject to certain
specified restrictions. (Emphasis omitted.) (Ex. A-13, Part 1 at 28.)
{¶ 7} At issue in this case is the coverage for site pollution incident clean-up costs
at the Watkins Road properties. Section I, Subsection 3 of the GLEE policy covered site
pollution incident liability, providing as follows:
Provided the pollution incident takes place in the coverage
territory and commences on or after the retroactive date, if
applicable, and before the end of the policy period, we will pay
those sums that the insured becomes legally obligated to pay
as:
Coverage 3A — On-Site Clean-Up Costs
Clean-up costs on, at or under an insured location or non-
owned location, provided:
(i) the pollution incident is both first discovered by a
responsible executive and reported to us during the policy
period; or
(ii) a claim for clean-up costs is first made against the insured
and reported to us in writing during the policy period or the
extended reporting period, if applicable.
No. 21AP-21 5
(Emphasis omitted.) (Ex. A-13, Part 1 at 19.) Exclusions to Coverage 3A above included,
among others, the following:
c. Expected or Intended
Bodily injury, property damage or clean-up costs expected or
intended by a responsible executive.
***
g. Material Change In Use
Bodily injury, property damage or clean-up costs arising out of
a change in use of or operations at any insured location that is
materially different from the use or operations at the inception
date.
(Emphasis omitted.) (Ex. A-13, Part 1 at 20-21.) Section V, which applied to Coverage 3A
for on-site clean-up costs, contained provisions pertaining to the extended reported period
as follows:
If the Policy was not terminated due to non-payment of
premium, or fraud or misrepresentation in the application for
this Policy, and the first Named Insured has not purchased any
other insurance to replace this insurance, we will provide an
Automatic Extended Reporting Period as described in
Paragraph A below * * *[.]
A. Automatic Extended Reporting Period
The Automatic Extended Reporting Period is 90 days following
the end of the policy period. A claim first made against the
insured and reported to us during the Automatic Extended
Reporting Period will be deemed to have been first made
against the insured and reported to us on the last day of the
policy period, provided the pollution incident or wrongful act
commenced on or after any applicable retroactive date and
before the end of the policy period.
(Emphasis omitted.) (Ex. A-13, Part 1 at 30.)
{¶ 8} Section IV of the GLEE policy covered rights and duties of the insurer and
insured. With regard to the insured's duties in the event of an occurrence, offenses,
pollution incident or wrongful act, Section IV(A) provided the following:
You must notify us as soon as practicable of any occurrence,
offense, pollution incident, or wrongful act, whether or not you
have received a claim or suit. To the extent possible, such
notice should include:
No. 21AP-21 6
1. How, when and where the occurrence, offense, pollution
incident or wrongful act took place;
2. The names and addresses of any injured persons and
witnesses; and
3. The nature and location of any injury or damage arising out
of the occurrence, offense, pollution incident or wrongful act.
(Emphasis omitted.) (Ex. A-13, Part 1 at 28.) Furthermore, Section IV(C) provided the
following with respect to pollution incidents:
In the event the insured becomes aware of a pollution incident
or imminent threat thereof, the insured must:
a. Promptly report the pollution incident or imminent threat
thereof to us and to the appropriate governmental authority as
required by environmental law;
b. Mitigate and clean-up any pollution incident or imminent
threat thereof to the extent required by environmental law by
retaining an environmental professional;
c. Provide us with proposed work plans, bids, contracts,
agreements or any similar document, concerning work to result
in clean-up cost (except for emergency response cost), which
proposals shall be subject to our right to prior approval[.]
(Emphasis omitted.) (Ex. A-13, Part 1 at 29.) Section IV(E), which covered the "Insured's
Right to Give Notice of Possible Claim Under Coverages 3A-3C (Site Pollution Incident
Liability)," provided as follows:
If during the policy period the insured becomes aware of a
pollution incident that commenced on or after any applicable
retroactive date and before the end of the policy period, and
which may reasonably be expected to give rise to a claim
against the insured, the insured may give us written notice
during the policy period of such pollution incident and the
reasons for believing that a claim may arise. Such notice must
include the following to the extent possible:
1. The circumstances under which the insured first became
aware of the pollution incident;
2. The nature, location and date of commencement of the
pollution incident; and
3. The identity of anticipated or potential claimants;
4. The bodily injury, property damage or clean-up cost that has
resulted or may result from the pollution incident;
No. 21AP-21 7
5. All available engineering information relating to the
pollution incident; and
6. Any other information that we deem reasonably necessary.
(Emphasis omitted.) (Ex. A-13, Part 1 at 29.)
{¶ 9} Under the terms of the GLEE policy, Garrison was endorsed on the policy as
an additional insured with the limitation that coverage as an additional insured applied:
"(a) Solely to the additional insured's liability arising out of the insured's ownership,
operation, maintenance or use of the corresponding scheduled insured location(s); and
(b) Only if the additional insured is named in a suit as a co-defendant with the insured,
alleging the additional insured is liable on the basis described in paragraph (a) above."
(Emphasis omitted.) (Ex. A-13, Part 2 at 24.) With respect to coverage under Section 3 for
Site Pollution Incident Liability, the property at 1675 Watkins Road was listed as an insured
location with a retroactive date of April 1, 2012 and the property at 1655 Watkins Road was
listed as an insured with a retroactive date of January 11, 2016. Coverage under the GLEE
policy for the period at issue in this case extended from 12:01 a.m. on April 12, 2015 through
12:01 a.m. on April 12, 2016.
C. Environmental Violations at the Watkins Road Properties
{¶ 10} In a letter dated October 17, 2013, the Ohio Environmental Protection Agency
("Ohio EPA") sent Closed Loop a "Notice of Violation" letter reflecting the results of a
September 30, 2013 complaint investigation of Closed Loop's facility at 1675 Watkins Road.
Ohio EPA found that Closed Loop was in violation of Ohio's hazardous waste laws,
specifically including provisions related to hazardous waste treatment, storage, and
disposal under R.C. 3734.02(E) and (F). Ohio EPA found that "[a]t the time of the
inspection[,] Closed Loop was storing approximately 300 pallets of broken CRTs outside in
cardboard * * * containers [that] had deteriorated to the point that they could no longer
hold the CRTs, and CRT glass and parts were strewn throughout the storage area. In
addition, the facility was storing approximately 450 pallets of televisions outside; due to
storage conditions, some of these CRTs had broken as well." (MSJ, Ex. A-5, No. 3 at 1.)
Ohio EPA found that due to violations of Ohio Administrative Code provisions and R.C.
3734.02(E) and (F), Closed Loop had rendered the property at 1675 Watkins Road an
"illegal storage and disposal facility." (Ex. A-5, No. 3 at 2.)
No. 21AP-21 8
{¶ 11} On June 10, 2014, Ohio EPA mailed Closed Loop a copy of an Expedited
Settlement Agreement and Director's Order pursuant to R.C. 3734.13 and 3745.01. In the
letter, Ohio EPA noted it had received documentation from Closed Loop demonstrating
that Closed Loop had moved the CRTs, televisions, and CRT waste from the outside storage
area into a building on the premises. In settlement of Ohio EPA's claim for civil penalties,
Closed Loop agreed to pay a fine in the amount of $2,200.
{¶ 12} On April 2, 2015, Ohio EPA sent another Notice of Violation letter to Closed
Loop. In the letter, Ohio EPA found Closed Loop was engaging in "[o]peration of air
contaminant sources without a permit" in violation of Ohio Adm.Code 3745-31-02(A) and
R.C. 3704.05(A). (Ex. A-5, No. 8 at 1.) Ohio EPA noted that during its January 27, 2015
site visit, "it was discovered that a CRT breaker was installed and operating without a
permit-to-install and operate (PTIO) application being [filed] with Ohio EPA." (Ex. A-5,
No. 8 at 1.) Ohio EPA found that Closed Loop needed to reduce indoor air pollution outside
of the CRT breaker area because "[p]ollutants that are outside the breaker room are free to
vent outside the building through open loading doors or the building[']s ventilation." (Ex.
A-5, No. 8 at 1.)
{¶ 13} On February 26, 2016, Ohio EPA sent Closed Loop a letter, a copy of which
was sent to Garrison, requesting information regarding speculative accumulation of CRT
glass at Closed Loop's 1675 Watkins Road facility. In the letter, Ohio EPA specifically stated
that it sought to determine whether "Closed Loop's operations are complying with the
speculative accumulation provisions" in the Ohio Administrative Code. (MSJ, Ex. A-34 at
1.) Ohio EPA noted that failing to demonstrate that it was not speculatively accumulating
CRT glass "would cause the CRTs to become hazardous waste subject to full regulations
under Ohio's hazardous waste laws." (Ex. A-34 at 2.)
{¶ 14} On April 11, 2016, Ohio EPA mailed Closed Loop a notice of violation, a copy
of which was sent to Garrison, finding that Closed Loop's facility at 1675 Watkins Road was
in violation of R.C. 3734.02(E) and (F), Ohio Adm.Code 3745-52-34(C)(1)(b) and (D)(2),
and 3745-66-71. In the letter, Ohio EPA stated that "[s]ince approximately mid-2015,
Closed Loop failed to demonstrate that processed CRT glass stored at Closed Loop's
No. 21AP-21 9
Watkins Road Facility was not speculatively accumulated." (MSJ, Ex. A-42 at 2.)3 Because
Closed Loop was speculatively accumulating processed CRT glass, Ohio EPA determined
that "Closed Loop has been storing, at a minimum, hazardous waste processed CRT glass,
which is characteristically hazardous for toxicity (lead) as described in [Ohio Adm.Code]
3745-51-24 in violation of [R.C.] 3734.02(E) and (F)." (Ex. A-42 at 2.) As a result, Ohio
EPA notified Closed Loop that "[a]lthough no further action is being required by Ohio EPA
at this time, be advised that due to the nature of the violation Ohio EPA may require
closure" of the facility. (Ex. A-42 at 2.) Following its April 11, 2016 notice of violation letter,
Ohio EPA referred Closed Loop to the Attorney General of Ohio for initiation of
enforcement actions against Closed Loop.
D. Garrison's Proceedings Against Closed Loop and Notice to Aspen
{¶ 15} On August 3, 2015, prior to the initiation of the present case and during the
pendency of Ohio EPA's investigations of Closed Loop, Garrison filed a complaint for
eviction, injunction, and damages against Closed Loop regarding the property at 1655
Watkins Road. In the complaint, Garrison sought to evict Closed Loop from the property
at 1655 Watkins Road in addition to $163,409.63 resulting from alleged breaches of the
occupancy agreement between Closed Loop and Garrison. In support of its claim for
injunctive relief to compel Closed Loop to remove personal property from the property,
Garrison stated:
Upon information and belief, Defendant is storing
approximately 300 semi-truck loads of discarded cathode ray
tubes and ancillary scrap materials ("Defendant's Personal
Property"), approximately eleven (11) million pounds of scrap
property, at the Premises. It would take Garrison months, and
cost substantially more than a million dollars, to remove
Defendant's Personal Property from the Premises.
Furthermore, Defendant's abandonment of the scrap Personal
Property at the Premises is likely to subject Garrison to
oversight and regulation by the Ohio Environmental Protection
Agency, causing Garrison additional significant costs that
3 Under Ohio Adm.Code 3745-51-01(C)(8): "[a] material is 'accumulated speculatively' if the material is
accumulated before being recycled. A material is not accumulated speculatively if the person accumulating
the material can show that the material is potentially recyclable and has a feasible means of being recycled;
and that during the calendar year commencing January first, the amount of material that is recycled, or
transferred to a different site for recycling, equals at least seventy-five per cent by weight or volume of the
amount of that material accumulated at the beginning of the calendar year."
No. 21AP-21 10
cannot be quantified. Garrison has neither the expertise nor the
capability to dispose of the enormous amount of Defendant's
Personal Property if Defendant leaves it at the Premises upon
vacating the Premises.
(Ex. A-5, No. 14 at 3.)
{¶ 16} On March 4, 2016, in a separate case, Garrison filed a complaint for eviction,
injunction, and damages against Closed Loop seeking Closed Loop's eviction from the
property at 1675 Watkins Road. In the complaint, Garrison stated:
Closed Loop has breached the Lease by leaving the Premises
with millions of pounds of discarded cathode ray tubes and
ancillary scrap materials (the "Scrap Material") filling the
Premises and otherwise contaminating the Premises. It will
cost Garrison millions of dollars to remove the Scrap Material
from the Premises and have it deposited at an appropriate land
fill, and to remediate Defendant Closed Loop's contamination
of the Premises (together, the "Environmental Clean-Up").
As a result of Defendant Closed Loop's breach of the Lease by
leaving the Premises with millions of pounds of the Scrap
Material and otherwise contaminating the Premises, the Ohio
Environmental Protection Agency (the "Ohio EPA") is
threatening to bring enforcement actions against Garrison to
perform the Environmental Clean-Up for the Premises.
(Ex. A-5, No. 12 at 4.) Garrison further stated that "Closed Loop's abandonment of the
Scrap Material at the Premises is likely to subject Garrison to oversight and enforcement
actions by the Ohio Environmental Protection Agency and/or the U.S. Environmental
Protection Agency, causing Garrison additional significant costs that cannot be quantified."
(Ex. A-5, No. 12 at 6.) Garrison sought damages in the amount of $3,986,545.97 under the
lease in addition to amounts to be determined for the damage to the property and "[a]n
amount to be determined at trial, totaling millions of dollars, for the costs incurred by
Garrison to perform the Environmental Clean-Up of the Premises." (Ex. A-5, No. 12 at 5.)
{¶ 17} On May 6, 2016, Garrison sent Closed Loop a letter, a copy of which was also
sent to Aspen, in which Garrison provided "notice to Closed Loop of Garrison's claim for
any and all costs and/or damages incurred by Garrison that could relate to the pollution
conditions" at the Watkins Road properties. (MSJ, Ex. A-43 at 1.) On May 9, 2016, Aspen
sent a letter to Closed Loop acknowledging receipt of the May 6, 2016 letter, assigned a
No. 21AP-21 11
claim number, and stated that it would review the information provided to determine
whether coverage was available under the GLEE policy.
E. Proceedings in this Action
{¶ 18} On February 3, 2017, Garrison filed a complaint seeking damages and a
declaratory judgment against Aspen and Closed Loop for an alleged breach of contract. On
September 11, 2017, Garrison filed a motion for leave to file a supplemental complaint,
attaching its supplemental complaint to the motion.
{¶ 19} In its supplemental complaint, Garrison alleged that on August 7, 2017 it was
awarded a final judgment against Closed Loop in the amount of $18,382,423.70 resulting
from Garrison's August 3, 2015 and March 4, 2016 actions against Closed Loop which were
consolidated on April 12, 2017. As part of the total award, Garrison was awarded
$14,181,553.74 with interest from August 7, 2012 for "costs to clean-up the CRT Waste that
resides at the [Watkins Road properties]" because the court found that Closed Loop had
"engaged in the speculative accumulation and subsequent abandonment and disposal of
the CRT Waste at the [Watkins Road properties]." (Supp. Compl. at 7.) In its supplemental
complaint in this case, Garrison alleges that "Closed Loop's abandonment of CRT waste,
and the spillage, release and dispersal of hazardous leaded glass and hazardous lead dust
throughout the Watkins Road Properties from the CRTs constitute a 'pollution incident'
that implicates coverage under the Aspen Policy's 'Site Pollution Incident Liability' coverage
part for the 'clean-up cost' or remediating the Watkins Road Properties, and is not
otherwise excluded under the Aspen Policy's terms and conditions." (Supp. Compl. at 12-
13.) Garrison alleged that Aspen was contractually obligated under the GLEE policy to
"provide coverage to Garrison for the 'clean-up cost' of remediating the 'pollution incident'
that occurred at the Watkins Road Properties." (Supp. Compl. at 15.) Garrison alleged that
"[i]n the alternative, pursuant to the terms of the [GLEE] Policy, Aspen is contractually
obligated to provide coverage to Closed Loop for its liability to Garrison, established by the
Final Judgment entered on August 7, 2017 in favor of Garrison and against Closed Loop in
the 1655 Watkins Road Litigation and the 1675 Watkins Road Litigation, for the 'clean-up
cost' of remediating the 'pollution incident' that occurred at the Watkins Road Properties."
(Supp. Compl. at 16.)
No. 21AP-21 12
{¶ 20} On September 26, 2017, the trial court filed an agreed order granting
Garrison leave to file its supplemental complaint. On October 13, 2017, Aspen filed an
answer to Garrison's supplemental complaint.
{¶ 21} On April 12, 2018, Aspen filed a motion for partial summary judgment on
Garrison's claims that it was an insured entitled to coverage for clean-up costs under the
policy. On April 26, 2018, Garrison filed a memorandum contra Aspen's April 12, 2018
motion for partial summary judgment.
{¶ 22} On July 17, 2018, Aspen filed another motion for summary judgment. On
July 31, 2018, Garrison filed a memorandum contra Aspen's July 17, 2018 motion for
summary judgment. On August 14, 2018, Aspen filed notice of a corrected motion for
summary judgment filed July 17, 2018 and supporting materials. On August 21, 2018,
Garrison filed a response to Aspen's August 14, 2018 corrected motion for summary
judgment.
{¶ 23} On December 18, 2020, the trial court filed a decision and entry granting
Aspen's April 12, 2018 motion for partial summary judgment and July 17, 2018 motion for
summary judgment. In its decision, the trial court found the GLEE policy issued by Aspen
did not cover Garrison's claim for clean-up costs to remediate the alleged pollution
incidents at the Watkins Road properties for three reasons. First, the trial court found
Garrison's claim for coverage was not made and reported during the policy period from
April 12, 2015 to April 12, 2016, as required by the claims made GLEE policy. Second, the
trial court found the alleged pollution incident at the 1655 Watkins Road property occurred
and was known to Garrison prior to the January 11, 2016 retroactive date. Third, the trial
court found that Garrison's claim for clean-up cost under Coverage 3A of the GLEE policy
was not due to a "pollution incident" as defined in the policy and, therefore, is not subject
to coverage. On December 23, 2020, the trial court filed a judgment entry entering
judgment in favor of Aspen and dismissing Garrison's complaint.
II. Assignments of Error
{¶ 24} Garrison appeals and assigns the following four errors for our review:
[I.] The trial court erred as a matter of law in concluding that
Plaintiff's claim for "clean-up costs" under Section 3A of the
Commercial General Liability & Environmental Exposure
Policy No. ERA9VP115 (the "GLEE Policy") was not due to a
"pollution incident."
No. 21AP-21 13
[II.] The trial court erred as a matter of law in concluding that
Plaintiff's claim is not covered by the GLEE Policy because it
arises out of the named insured's anticipated regular business
activities or a change in the named insured's operations and
use of the properties.
[III.] The trial court erred as a matter of law in concluding that
the alleged pollution incidents at 1655 Watkins Road were not
covered by the GLEE Policy because they commended before
the January 11, 2016 retroactive date in Manuscript
Endorsement 002 to the GLEE Policy.
[IV.] The trial court erred as a matter of law in concluding that
Plaintiff's claim for coverage under the GLEE Policy was not
timely made.
III. Analysis
{¶ 25} In its four assignments of error, Garrison asserts the trial court erred in
granting summary judgment in favor of Aspen because it improperly construed the terms
and provisions governing coverage under the GLEE policy and in finding that Garrison did
not timely report its claims for coverage to Aspen.
A. Standard of Review
{¶ 26} We review a decision on a motion for summary judgment under a de novo
standard. LRC Realty, Inc. v. B.E.B. Properties, 160 Ohio St.3d 218, 2020-Ohio-3196, ¶ 11.
De novo appellate review means the court of appeals conducts an independent review,
without deference to the trial court's decision. Wiltshire Capital Partners v. Reflections II,
Inc., 10th Dist. No. 19AP-415, 2020-Ohio-3468, ¶ 12. Summary judgment is appropriate
only when the moving party demonstrates: (1) no genuine issue of material fact exists,
(2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
could come to but one conclusion and that conclusion is adverse to the party against whom
the motion for summary judgment is made. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997). In ruling on a motion for summary judgment,
the court must resolve all doubts and construe the evidence in favor of the nonmoving
party. Premiere Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No. 18AP-736, 2019-
Ohio-4015, ¶ 6. Next is dupe too
No. 21AP-21 14
{¶ 27} Pursuant to Civ.R. 56(C), the party moving for summary judgment bears the
initial burden of informing the trial court of the basis for the motion and of identifying those
portions of the record demonstrating the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party cannot satisfy this initial
burden by simply making conclusory allegations, but instead must demonstrate, including
by use of affidavit or other evidence allowed by Civ.R. 56(C), that there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law.
Wiltshire Capital at ¶ 13. If the moving party fails to satisfy this initial burden, the court
must deny the motion for summary judgment; however, if the moving party satisfies the
initial burden, the nonmoving party has a burden to respond, by affidavit or otherwise as
provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial.
Dresher at 293; Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-1068,
2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991).
B. Fourth Assignment of Error—Whether Claim Was Timely
{¶ 28} In its fourth assignment of error, Garrison argues the trial court incorrectly
found that it did not timely assert its claim to Aspen under the terms of the GLEE policy.
The GLEE policy in this case is a claims made policy covering the period from April 12, 2015
to April 12, 2016.
{¶ 29} Insurance policies include both claims made policies and occurrence policies.
Under an occurrence policy, coverage exists for acts committed during the policy period
regardless of when the claim is brought. See United States v. Strip, 868 F.2d 181, 184 (6th
Cir.1989); Mominee v. Scherbarth, 28 Ohio St.3d 270, 298 (1986), fn. 24. However, under
a claims made policy, " 'coverage exists only when the insured presents a claim to the
insurer within the policy period, or an extended period as allowed by the policy.' "
Hedmond v. Admiral Ins. Co., 10th Dist. No. 02AP-910, 2003-Ohio-4138, ¶ 32, quoting
Asp v. Ohio Med. Transp., Inc., 10th Dist. No. 00AP-958 (June 28, 2001). " 'The existence
of a cut-off date is integral to a claims-made policy, as it is "a distinct characteristic of such
a policy that directly relates to rate setting." ' " Asp, quoting Checkrite Ltd., Inc. v. Illinois
Nat. Ins. Co., 95 F.Supp.2d 180, 191-92 (S.D.N.Y.2000), quoting Rochwarger v. Natl.
Union of Fire Ins. Co. of Pittsburgh, Pennsylvania, 192 A.D.2d 305 (1993). See Mueller v.
Taylor Rental Ctr., 106 Ohio App.3d 806, 811-12 (8th Dist.1995), quoting Zuckerman v.
No. 21AP-21 15
Nat. Union Fire Ins. Co., 100 N.J. 304 (1985) (stating that " '[t]he obvious advantage to the
underwriter issuing "claims made" policies is the ability to calculate risks and premiums
with greater exactitude since the insurer's exposure ends at a fixed point, usually the policy
termination date. This may result in lower rates for the insured' "); Hasbrouck v. St. Paul
Fire & Marine Ins. Co., 511 N.W.2d 364, 366 (Iowa 1993) (stating that under a claims made
policy "the obvious benefit to the underwriter is that there is no open-ended 'tail' after the
expiration date of the policy" such that the " 'insurer can establish his reserves without
having to consider the possibilities of inflation beyond the policy period, upward-spiralling
jury awards, or later changes in the definition and application of [the law]' ") (Citation
omitted.); Chas T. Main, Inc. v. Fireman's Fund Ins. Co., 406 Mass. 862, 865 (1990). " 'To
allow coverage beyond that period [in a claims made policy] would be to grant the insured
more coverage than he bargained for and paid for, and to require the insurer to provide
coverage for risks not assumed.' " Kentucky Med. Ins. Co. v. Jones, 10th Dist. No. 02AP-
817, 2003-Ohio-3301, ¶ 62, quoting Strip at 184.
{¶ 30} "It is axiomatic that an insurance company is under no obligation to its
insured, or to others harmed by the actions of an insured, unless the conduct alleged of the
insured falls within the coverage of the policy." Gearing v. Nationwide Ins. Co., 76 Ohio
St.3d 34, 36 (1996). See Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 2010-Ohio-6312,
¶ 8. " 'Coverage is provided if the conduct falls within the scope of coverage defined in the
policy, and not within an exception thereto.' " Id., quoting Gearing at 36. See Reed v.
Davis, 10th Dist. No. 13AP-15, 2013-Ohio-3742, ¶ 10.
{¶ 31} Here, as previously noted, the trial court found that Garrison's claim for
coverage was not made and reported during the policy period from April 12, 2015 to
April 12, 2016 as required by the claims made GLEE policy. The trial court found the
alleged pollution incidents in Garrison's complaint began and were known to Garrison prior
to the close of the policy period on April 12, 2016. The trial court pointed to Garrison's
contentions in the actions Garrison filed in August 2015 and March 2016 against Closed
Loop as evidence of Garrison's awareness of the claims. However, because Garrison failed
to notify Aspen until its May 6, 2016 letter, the court found Garrison's claims were not
covered under the terms of the claims made GLEE policy.
No. 21AP-21 16
{¶ 32} Garrison argues the trial court erred in its findings regarding the beginning
of the pollution incidents and Garrison's awareness of the same. Specifically, Garrison
argues its claim for clean-up costs was not ripe until the April 11, 2016 notice of violation
letter from Ohio EPA. As the Ohio EPA letter was dated one day prior to the expiration of
the policy period, Garrison argues we should recognize an exception to the general rule
under claims made policies for so-called "eleventh hour" claims. (Garrison's Brief at 39.)
In support of this argument, Garrison points to Helberg v. Natl. Union Fire Ins. Co., 102
Ohio App.3d 679, 682 (6th Dist.1995).
{¶ 33} In Helberg, the policy period ran from December 11, 1990 to December 11,
1991. The insured became aware of a claim on October 21, 1991, but failed to report the
claim until January 21, 1992. The policy stated that coverage was available "for 'any claim
* * * first made against the insured and reported to [the Insurer] during the policy period.' "
Helberg at 680-81. Under that language, coverage was not available to the insured since
the claim was not reported until several weeks after the policy period had ended. However,
another provision in the policy stated that coverage was available "to any claim arising out
of any acts or omissions occurring prior to the effective date of the first policy issued to the
named insured by [the Insurer] and continuously renewed thereafter if any insured on
such date knew or could have reasonably foreseen that such acts or omissions might be
expected to be the basis of a claim or suit." (Emphasis sic.) Id. at 682. Based on the
"continuously renewed thereafter" provision, the court found the parties "expected the
coverage to be continuous if the policy was renewed at each successive policy expiration."
Id. Because the insurance policy had been continuously renewed, the court found the policy
was ambiguous regarding when a claim was required to be reported. Construing the
ambiguity in favor of the insured, the court found the notice was timely.
{¶ 34} We find the present case to be distinguishable from Helberg for several
reasons. First, there is no ambiguity present in the terms regarding the policy period for
coverage of the GLEE policy. See Asp (distinguishing Helberg on grounds that the
insurance policy at issue did "not contain a 'continuously renewed thereafter' clause").
Garrison points to the "Related Claims" provision in the GLEE policy to argue that the
policy contains language similar to that in Helberg. However, in referencing the Related
Claims provision for Coverage 3A, Garrison omits portions of the relevant text preceding
No. 21AP-21 17
its cited provision. The Related Claims provision of the GLEE policy becomes effective and
modifies "Coverages 3A through 3C (Site Pollution Incident Liability coverages)" only "if a
claim is first made against an insured and reported to us during this policy period, or under
Coverage 3A (On-Site Clean-Up Costs) a pollution incident is first discovered by a
responsible executive and reported to us during this policy period." (Emphasis added.)
Thus, the provision in its entirety makes clear that it applies when the claim or pollution
incident is reported during the policy period, unlike the ambiguous provision in Helberg.
{¶ 35} Furthermore, this situation does not present a true "eleventh hour" situation
of the type suggested by Garrison.4 Instead, the record reveals that Garrison was aware of
the conditions at the Watkins Road properties substantially prior to Ohio EPA's April 11,
2016 final notice of violation. In Garrison's August 3, 2015 complaint against Closed Loop
regarding the 1655 Watkins Road property, Garrison stated that "[i]t would take Garrison
months, and cost substantially more than a million dollars, to remove [d]efendant's
Personal Property from the Premises." (Ex. A-5, No. 14 at 3.) Garrison also stated that
"[d]efendant's abandonment of the scrap Personal Property at the Premises is likely to
subject Garrison to oversight and regulation by the Ohio Environmental Protection Agency,
causing Garrison additional significant costs that cannot be quantified." (Ex. A-5, No. 14 at
3.) In its March 4, 2016 complaint against Closed Loop regarding the 1675 Watkins Road
property, Garrison stated:
Closed Loop has breached the Lease by leaving the Premises
with millions of pounds of discarded cathode ray tubes and
ancillary scrap materials (the "Scrap Material") filling the
Premises and otherwise contaminating the Premises. It will
cost Garrison millions of dollars to remove Scrap Material from
the Premises and have it deposited at an appropriate land fill,
and to remediate Defendant Closed Loop's contamination of
the Premises (together, the "Environmental Clean-Up").
(Emphasis added.) (Ex. A-5 No. 12 at 4.) Furthermore, Garrison stated that "[i]n March
2016, Closed Loop personnel abandoned both the 1655 and 1675 Watkins Road properties."
(MSJ, Ex. A-28 at 4.) Thus, Garrison's very own claims against Closed Loop demonstrate
Garrison's awareness of the conditions at the Watkins Road properties.
4As the circumstances in this case do not present a question as to the applicability of any equitable exception
to claims made policies, we specifically make no determination as to the same.
No. 21AP-21 18
{¶ 36} Furthermore, discovery in the present matter revealed other evidence
supporting Garrison's awareness of the alleged pollution incidents at the Watkins Road
properties prior to the April 11, 2016 Ohio EPA letter. In an e-mail correspondence, a
representative of Garrison stated that "[w]e discovered the 'pollution event' in 2015." (MSJ,
Ex. A-16 at 1.) The Garrison representative further noted that there were discussions at
Garrison concerning the "applicability of environmental insurance coverage concerning the
Watkins Road situation in 2015." (Ex. A-16 at 1.) In an e-mail dated October 19, 2015, a
representative of Garrison discussed whether "[i]n the event we evict this tenant, Closed
Loop, from 1675 and 1655 Watkins Road" Garrison could "access * * * environmental
[insurance] coverage and use it to clean out [Closed Loop's] space." (MSJ, Ex. A-40 at 1.)
{¶ 37} In January 2016, Garrison received a memo from HUB International
analyzing insurance coverage under the GLEE policy for the Watkins Road properties. The
memo specifically noted that it was prepared after "Garrison enquired as to whether
environmental insurance would pay for the removal/cleanup costs at the [Watkins Road
properties]." (MSJ, Ex. A-41 at 2.) In February 2016, Garrison provided a summary of the
memo's conclusion in an update to its investors. In an e-mail dated April 4, 2016, HUB
International recommended that Garrison "[s]ubmit a third party claim under Closed
Loop's Environmental Liability policy with Aspen now." (Ex. A-42 at 4.) In the same e-
mail, HUB International informed Garrison that the GLEE policy "coverage expires on
4/12/16, and suggest your Ohio environmental counsel send a demand letter to Closed
Loop and their insurance broker advising of * * * [p]ollution conditions at Garrison
property (1655 and 1675 Watkins Rd, Columbus, OH) due to Closed Loop's operations * * *
[and a] release of hazardous materials requiring remediation." (Ex. A-42 at 4.) Garrison
also received a copy of Closed Loop's site closure plan, which was dated June 30, 2015, for
the closure of the facility at 1675 Watkins Road.
{¶ 38} Thus, the record reflects that Garrison was aware of the existence of the
alleged pollution incidents at the Watkins Road properties prior to Ohio EPA's April 11,
2016 letter. Furthermore, it is undisputed that Aspen was not aware of Garrison's prior
actions against Closed Loop which were originally filed on August 3, 2015 and March 4,
2016. Based on the foregoing, we conclude that no issue of genuine material fact remains
for trial and therefore find the trial court correctly determined that Garrison's claim for
No. 21AP-21 19
coverage was not timely made within the policy period of the claims made GLEE policy.
Accordingly, we overrule Garrison's fourth assignment of error.
C. First, Second, and Third Assignments of Error
{¶ 39} In its first and second assignments of error, Garrison asserts the trial court
erred in its construction of the provisions and terms under the GLEE policy. Specifically,
Garrison asserts the trial court erred in its construction of the term "pollution incident" as
applied to Coverage 3A for site pollution incident liability. Furthermore, Garrison asserts
the trial court erred in finding that Garrison's claim is not covered under Exclusions c and
g for Coverage 3A under the GLEE policy because the claim arises out of the insured's
anticipated regular business activities or a change in the insured's operations and use of the
properties. In its third assignment of error, Garrison argues the trial court erred in finding
the pollution incidents at the 1655 Watkins Road property were not covered because the
alleged pollution incidents occurred prior to the January 11, 2016 retroactive date. Having
found in our resolution of the fourth assignments of error that Garrison's claims cannot
succeed because they failed to timely notify Aspen within the policy period of the claims
made GLEE policy, it is unnecessary for us to address Garrison's assertions under the first,
second, and third assignments of error. Accordingly, Garrison's first, second, and third
assignments of error are rendered moot.
IV. Conclusion
{¶ 40} Having overruled Garrison's fourth assignment of error, thereby rendering
moot Garrison's first, second, and third assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and MENTEL, JJ., concur.