Hanover Insurance Company v. Superior Labor Services, Inc. et al, No. 2:2011cv02375 - Document 342 (E.D. La. 2016)

Court Description: ORDER AND REASONS denying Hanover's 228 Motion for Partial Summary Judgment Concerning the Duty to Defend Masse Contracting, Inc. and Allied Shipyards, Inc. as an Alleged Additional Insured, as stated herein. Signed by Judge Susie Morgan on 3/31/2016. (Reference: 14-1933) (tsf)

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Hanover Insurance Company v. Superior Labor Services, Inc. et al Doc. 342 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A H AN OVER IN SU RAN CE COMPAN Y, Pla in tiff CIVIL ACTION N o . 11-2 3 75 c/ w 14 -19 3 0 , 14 -19 3 3 VERSU S SU PERIOR LABOR SERVICES, IN C., ET AL., D e fe n d an ts SECTION “E” Ap p lie s t o : 14 -19 3 3 ORD ER AN D REAS ON S Before the Court is Hanover’s m otion for partial sum m ary judgm ent seeking a declaration that Hanover has no duty to defend Masse and no duty to defend Allied as an additional insured. 1 For the reasons set forth below, the m otion is D EN IED . BACKGROU N D A. State-Court Lawsuits This is a consolidated action. The case origin ates from two personal-injury actions (“State-Court Lawsuits”) filed in state court against Allied Shipyard, Inc. (“Allied”): Adam s, et al. v. Allied Shipy ard, Inc., et al. and St. Pierre, et al. v. Allied Shipy ard, Inc. 2 The plaintiffs in the State-Court Lawsuits allege Allied negligently perform ed sandblasting activities, causing dangerous silica dust and other hazardous substances to perm eate the plaintiffs’ neighborhood. 3 The plaintiffs seek dam ages for physical pain an d suffering, m edical expenses, property dam age, and other dam ages as a result of their 1 R. Doc. 228 . Unless otherwise indicated, “R. Doc.” refers to record docum ents in the consolidated m atter, No. 11-2375. 2 The petition for dam ages from each State-Court Lawsuit is attached to Hanover’s m otion for sum m ary judgm ent. See R. Docs. 228 -4, 228-5. 3 See R. Docs. 228-4, 228-5. 1 Dockets.Justia.com exposure to the hazardous substances. 4 The two cases were consolidated in state court on Septem ber 9, 20 13. 5 In both State-Court Lawsuits, Allied filed third-party dem ands against its contractors that perform ed the sandblasting jobs, including Superior Labor Services, Inc. (“Superior”) 6 and Masse Contracting, Inc. (“Masse”). 7 Specifically, Allied alleges that Superior and Masse contracted with Allied to perform certain job responsibilities an d to indem n ify Allied under m aster work contracts. 8 Allied seeks indem nity from Superior an d from Masse with respect to the claim s in the State-Court Lawsuits. 9 Allied has also alleged the right to additional assured status and coverage on all insurance policies issued to Superior and to Masse for any liability in the State-Court Lawsuits. 10 The plaintiffs in Adam s am en ded their petition to nam e Superior, Masse, other subcontractors, and Gray Insurance Com pany as direct defendants. 11 The contractors against which Allied brought third-party dem ands “in turn sought coverage, defense and/ or indem nity from their various insurers for the periods of tim e when these jobs were allegedly perform ed, which prom pted the insurers to file lawsuits in federal courts.”12 B. Declaratory Actions in Federal Court Three federal actions related to the State-Court lawsuits are pending in this Court. The Court consolidated the three cases on Novem ber 21, 20 14. 13 4 See R. Docs. 228-4, 228-5. See R. Doc. 259-5. 6 R. Doc. 69 at ¶¶ 13– 16; R. Docs. 228-4, 228-5. 7 R. Doc. 69 at ¶¶ 13– 16; R. Doc. 228-6; R. Doc. 228-7. 8 R. Doc. 228-6. 9 Id. 10 Id. at ¶ 19. 11 See R. Doc. 228-4. 12 R. Doc. 174-1 at 2. 13 See R. Doc. 10 8. 5 2 1. N o. 11-2375 On Septem ber 21, 20 11, Hanover Insurance Com pany (“Hanover”) filed a com plaint in this Court. 14 Hanover filed an am ended com plaint on Septem ber 27, 20 12. 15 Hanover alleges it has been participating in the defense of Superior against Allied’s thirdparty dem ands in the State-Court Lawsuits. 16 Hanover m aintains the other insurers it nam es in its federal suit “are not participatin g in Superior’s defense” in the State-Court Lawsuits. 17 Hanover seeks judgm ent against Superior declaring that it has no duty to defend or indem nify Superior in the State-Court Lawsuits. 18 If Hanover has a duty to defend or indem nify Superior, Hanover seeks declaratory judgm ent that State National Insurance Com pany (“State National”), Arch Insurance Com pany (“Arch”), and “other unidentified insurance com panies collectively nam ed as ABC Insurance Com pany” are liable “for their share of defense and indem nity to be paid on behalf of Superior” in the State-Court Lawsuits. 19 Hanover also seeks reim bursem ent, contribution, and/ or dam ages from State National, Arch, and other unidentified insurance com panies for defense costs already incurred by Hanover on behalf of Superior in the State-Court Lawsuits that, Hanover argues, should have been paid by those insurance com panies. 20 On J anuary 14, 20 15, Hanover filed a second supplem ental and am ending com plaint nam ing Allied as a defendant. 21 Hanover alleges that “Allied has tendered the [State-Court Lawsuits] to Hanover for defen se and indem nity in its capacity as an alleged 14 Hanover Ins. Co. v . Superior Labor Servs., Inc., et al., No. 11-2375. R. Doc. 69. 16 Id. at ¶¶ 23– 24. 17 Id. at ¶ 26. 18 Id. at 22– 23. 19 Id. at ¶ 2. 20 Id. at ¶ 3. 21 R. Doc. 125. 15 3 additional insured” under Superior’s policies, and Hanover has offered to participate in Allied’s defense in the State-Court Lawsuits subject to a full reservation of rights. 22 Hanover alleges that Allied is not an additional assured under Hanover’s policies, and Hanover seeks judgm ent against Allied declaring that it has no duty to defend or indem n ify Allied in the State-Court Lawsuits. 23 In the alternative, if the Court finds Hanover has a duty to defend or indem nify Allied, Hanover seeks judgm ent declaring that Arch, State National, other unidentified insurance com panies are obligated to pay their portions of defense costs and/ or indem nity incurred by Hanover on behalf of Superior and Allied in the State-Court Lawsuits. 24 2. N o. 14-1930 On August 22, 20 14, Arch Insurance Com pany brought an action for declaratory judgm ent against Superior and Allied. Arch seeks a declaration of its rights and responsibilities under “certain insurance policies issued by Arch to Superior,” with respect to Superior’s request for defense and in dem nity in the State-Court Lawsuits. 25 Arch also seeks a declaration of its rights and responsibilities with respect to Allied’s request for additional assured status under the Superior policies and defense and indem n ity of Allied in the State-Court Lawsuits. 26 Arch seeks a declaration against Superior and Allied that Arch has no defense or indem nity obligation to Superior in the 22 Id. at ¶ 79. Id. at 9. 24 Id. 25 No. 14-1930 , R. Doc. 1 at ¶ 3. 26 Id. at ¶ 4. Arch alleges that Allied is not entitled to additional assured coverage “to the extent there is no evidence that any loss occurred” while Superior was perform in g work for Allied an d during the Arch policy periods. Id. at ¶¶ 20 – 21. 23 4 State-Court Lawsuits. 27 Arch also seeks recovery of the portion of defense costs already incurred by it on behalf of Superior. 28 3. N o. 14-1933 On August 22, 20 14, Arch also filed an action for declaratory judgm ent again st Masse and Allied. Arch seeks a declaration of its rights and responsibilities under “certain insurance policies issued by Arch to Masse,” with respect to Masse’s request for defense and indem nity in the State-Court Lawsuits. 29 Arch also seeks a declaration of its rights and responsibilities with respect to Allied’s request for additional assured status under the Masse policies and defense and indem n ity of Allied in the State-Court Lawsuits. 30 Arch seeks a declaration against Masse an d Allied that Arch has no defense or indem nity obligation to Masse in the State-Court Lawsuits. 31 On J anuary 14, 20 15, Hanover filed a com plaint in intervention in Case No. 141933 against Defendants Masse and Allied. 32 Hanover seeks judgm ent declaring that Hanover has no obligation to defend or indem nify Masse or Allied in the StateCourt Lawsuits. 33 State National Insurance Com pany (“State National”) also filed a petition for intervention for declaratory judgm ent on J anuary 14, 20 15. 34 State National issued two m arine gen eral liability policies to Masse that provided coverage from Novem ber 15, 27 Id. at ¶¶ 21, 47. Id. at ¶ 47. 29 No. 14-1933, R. Doc. 1 at ¶ 3. 30 Id. at ¶ 4. Arch alleges that Allied is not entitled to additional assured coverage “to the extent there is no evidence that an y loss occurred” while Masse was perform in g work for Allied and during the Arch policy periods. Id. at ¶¶ 20 – 21. 31 Id. at ¶ 46. 32 R. Doc. 128. 33 Id. 34 R. Doc. 132. 28 5 20 0 6, to Novem ber 15, 20 0 7, and from Novem ber 15, 20 0 7, to Novem ber 15, 20 0 8 . 35 Allied seeks additional insured status under the policies issued by State Nation al to Masse. 36 State National seeks a judgm ent declaring there is no coverage afforded to Masse under the State National policies and that State National has no duty to defend or indem n ify Masse in the State-Court Lawsuits. 37 State National also seeks a declaration that “there is no coverage afforded to Allied under the [State National] policies as a purported additional insured” an d that State National does not owe a duty to defen d or indem n ify Allied in the State-Court Lawsuits. 38 C. Hanover’s Motion for Partial Sum m ary J udgm ent Hanover filed a m otion for partial sum m ary judgm ent against Masse and Allied on J uly 29, 20 15. 39 Hanover argues it has no duty to defend Masse or Allied, as an addition al insured under the policies issued to Masse, in the State-Court Lawsuits for three reason s: (1) that the plaintiffs in the State-Court Lawsuits do not allege “bodily injury” or “property dam age” that occurred during the term s of the policies Hanover issued to Masse; (2) alternatively, that the plaintiffs in the State-Court Lawsuits seek recovery for injuries arising out of exposure to silica dust and the Hanover policies contain an exclusion for silica, silicon, and silicate; and (3) alternatively, the policies contain a Pollution Buyback Endorsem ent that is not triggered by the State-Court Lawsuits and thus does not extend coverage for the state-court plaintiffs’ injuries. 40 In its m otion, and solely for purposes of its m otion, Hanover assum es that Allied qualifies as an additional assured within the 35 R. Doc. 132 at ¶ 14. Id. at ¶ 3. 37 Id. at ¶ 19. 38 Id. 39 R. Doc. 228. 40 Id. at 2. 36 6 m eaning of the Masse policies. 41 Whether Allied will indeed qualify as an addition al assured under the policies is not addressed in this ruling. Masse filed its opposition to Hanover’s m otion on Decem ber 8 , 20 15, 42 and Allied filed its opposition on Decem ber 14, 20 15. 43 Hanover filed a reply m em orandum in support of its m otion on Decem ber 15, 20 15. 44 After deposing Anthony Boudreaux, Allied’s vice president of operations and Superior’s form er vice president, Masse filed a m em orandum to supplem ent its opposition on February 29, 20 16. 45 H AN OVER’S IN TERVEN TION The Court m ust determ ine whether Hanover’s intervention in No. 14-1933 was perm issible under Rule 24. Rule 24(a) provides for intervention as of right, while Rule 24(b) provides for perm issive intervention. Hanover filed a supplem ental m em oran dum on March 29, 20 16, arguing intervention was proper under both Rule 24(a) and Rule 24(b). 46 Masse argues the intervention is im proper. 47 A. Intervention of Right Rule 24(a) provides that the court must perm it anyone to intervene who (1) is given an unconditional right to intervene by a federal statute or (2) claim s an interest relating to the property or transaction that is the subject of the action, and is so situated that 41 R. Doc. 228-1 at 10 n.3. R. Doc. 254. 43 R. Doc. 277. 44 R. Doc. 291. 45 R. Doc. 313. 46 R. Doc. 328 . 47 R. Doc. 337. Hanover filed an ex parte m otion for leave to file a com plaint in intervention on J anuary 12, 20 15. R. Doc. 116. Masse and Arch had no opposition to the intervention . R. Doc. 116-1 at 2. The Court granted the m otion for leave to interven e on J anuary 14, 20 15, R. Doc. 115, and Hanover filed its com plaint in intervention against Masse and Allied in No. 14-1933 on J anuary 14, 20 15. R. Doc. 128 . 42 7 disposing of the action m ay as a practical m atter im pair or im pede the m ovant’s ability to protect its interest, unless existing parties adequately represent that interest. 48 Hanover points to no federal statute giving it an unconditional right to intervene. “Absent a statute givin g a right to intervene, Rule 24(a) im poses four requirem ents for intervention as of right: (1) tim eliness, (2) an interest relating to the subject m atter of the m ain action, (3) at least potential im pairm ent of that interest if the action is resolved without the intervenor, and (4) lack of adequate representation by existing parties.”49 To show it has an interest relating to the subject m atter of the m ain action, Hanover m ust dem onstrate it has “a direct, substantial, legally protectable interest in the action, m eaning ‘that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant.’”50 Hanover argues that it has shown it has an interest relating to the subject m atter of the m ain action (1) because it “has been defending Masse pursuant to reservation in the sam e underlying lawsuits at issue in Arch’s declaratory judgm ent action,” an d (2) because Hanover’s policies issued to Masse and Arch’s policies issued to Masse, the subject of the m ain action, both contain substantially sim ilar exclusions. Hanover argues it has an interest “in obtain ing a consistent judicial determ ination regarding its coverage obligations to Masse in the underlying lawsuits.”51 Hanover fails to show, however, that it “has a stake in the m atter that goes beyond a generalized preference that the case com e out a certain way.”52 Hanover’s purported 48 F ED. R. CIV. P. 24(a). Vallejo v. Garda CL Sw ., Inc., No. 12-0 555, 20 13 WL 391163, at *5 (S.D. Tex. J an . 30 , 20 13). See also In re Lease Oil Antitrust Litig., 570 F.3d 244, 247 (5th Cir. 20 0 9). 50 In re Lease Oil, 570 F.3d at 250 (quotin g Cajun Elect. Pow er Coop. v . Gulf States Utils., Inc., 940 F.2d 117, 119 (5th Cir. 1991)). 51 R. Doc. 228 at 4– 5. 52 Texas v. United States, 80 5 F.3d 653, 657 (5th Cir. 20 15). 49 8 interest is insufficient to establish an “interest” relating to the subject m atter of the m ain action under Rule 24(a). 53 Hanover also fails to show that its interest would be at least potentially im paired if the action is resolved without it. “Im pairm ent exists when the decision of a legal question would, as a practical m atter, foreclose the rights of the proposed intervenor in a subsequent proceedin g.”54 Hanover has failed to establish that its interest would be potentially im paired if the m ain action is resolved without it, as Hanover has not dem onstrated that “the disposition of [the m ain] suit will . . . bar [Hanover] from asserting [its] rights in a separate action.”55 Because Hanover fails to dem onstrate at least two of the four prongs necessary to establish intervention of right, the Court finds Hanover is not entitled to intervention of right under Rule 24(a). B. Perm issive Intervention Rule 24(b) provides that courts m ay perm it anyone to intervene who has a claim or defense that shares with the m ain action a com m on question of law or fact. 56 “Even if not warranted as a m atter of right, the Court has broad discretion to allow perm issive intervention where, as here, the parties seekin g to intervene assert claim s with a com m on question of fact or law in connection with the m ain action.”57 If the intervenor has a claim or defense that shares with the m ain action a com m on question of law or fact, district 53 See id. at 657– 60 . Vallejo, 20 13 WL 391163, at *5. 55 Id. (“If the disposition of a suit will not bar a proposed intervenor from assertin g his or her rights in a separate action , the ‘im pairm ent’ prong of Rule 24(a) typically is not m et.”). 56 F ED . R. CIV. P. 24(b)(1). 57 Liberty Mut. Fire Ins. Co. v. Lum ber Liquidators, Inc., No. 15-34, 20 16 WL 5548 30 , at *6 (E.D. Va. Feb. 9, 20 16). 54 9 courts have “broad discretion” in allowin g intervention. 58 “A court possesses the discretion to determ ine whether to perm it perm issive intervention and m ust ‘consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.’”59 The rule on perm issive intervention “should be liberally construed.”60 In Pennsy lvania N ational Mutual Casualty Insurance Co. v. Perlberg, the district court for the District of Maryland allowed an insurer to intervene perm issively under Rule 24(b)(1)(B) in a situation sim ilar to that currently before this Court. 61 In Perlberg, Penn National issued a com m ercial general liability policy to the Perlbergs, defendants in an underlying personal injury lawsuit. 62 Penn National filed a federal declaratory judgm ent action again st the Perlbergs, seeking a declaration that it owed no duty to defend or indem n ify the Perlbergs in the underlying lawsuit. 63 New Ham pshire, another insurer that provided a separate com m ercial general liability policy to the Perlbergs, had been defending the Perlbergs in the underlying lawsuit. 64 New Ham pshire filed a m otion to intervene in Penn National’s declaratory judgm ent action to protect its potential contribution rights. 65 The court granted the m otion to intervene, concluding that perm issive intervention under Rule 24(b) was appropriate. 66 The court explained that the 58 Sec. & Exch. Com m ’n. v . Mutuals.com , Inc., No. 0 3-2912, 20 0 4 WL 1629929, at *2 (N.D. Tex. J uly 20 , 20 0 4) (citing League of Un ited Latin Am . Citizens, Council N o. 4434 v. Clem ents, 88 4 F.2d 185, 189 (5th Cir. 1989)); Vallejo, 20 13 WL 391163, at *10 . 59 W aste Mgm t. of Louisiana, L.L.C. v. River Birch, In c., No. 11-240 5, 20 13 WL 5175620 , at *3 (E.D. La. Sept. 12, 20 13) (quotin g F ED. R. CIV. P. 24(b)(3)). See also Tajonera v. Black Elk Energy Offshore Operations, L.L.C., No. 13-0 366, 20 15 WL 8 93447, at *8 (E.D. La. Mar. 2, 20 15); J.M. Sm ith Corp. v . Ciolino Pharm acy W holesale Distributors, LLC, No. 10 -1483, 20 13 WL 1344557, at *1 (E.D. La. Apr. 3, 20 13). 60 Moore v. Tangipahoa Parish Sch. Bd., 298 F. Supp. 288 , 292 (E.D. La. 1969). 61 Pennsy lvania N at. Mut. Cas. Ins. Co. v . Perlberg, 268 F.R.D. 218 , 226 (D. Md. 20 10 ). 62 Id. at 220 . 63 Id. 64 Id. 65 Id. 66 Id. at 226. 10 lawsuit could determ ine both Penn National’s declaratory judgm ent action and New Ham pshire’s contribution claim in one proceeding while allowing all parties to be heard. 67 The court also explained that the intervention would avoid a com peting suit in state court. 68 Several issues of law and fact in Hanover’s declaratory judgm ent action against Masse and Allied are com m on to those in Arch’s declaratory judgm ent action again st those sam e entities. Both Arch and Hanover seek declaratory judgm ent that they have no duty to defend or indem nify Masse or Allied in the State-Court Lawsuits. 69 The allegations of the underlying State-Court Lawsuits are the sam e with respect to both declaratory judgm ent actions. Although the relevant provisions of the policies issued to Masse by Arch and by Hanover are not identical, the m aterial factual disputes will most certainly overlap and the legal issues surrounding the application of the silica an d pollution exclusions in the policies will be substantially sim ilar. As in Perlberg, this lawsuit can be used to determ ine Arch’s declaratory judgm ent action and Hanover’s declaratory judgm ent action in one proceeding while allowing all parties to be heard. Intervention will avoid a com peting action in state court and will avoid in consistent results on these disputed issues. The Court finds the approach taken by the court in Perlberg to be com m on-sense and well within the Court’s discretion under Rule 24(b). Courts should also consider whether perm issive intervention will achieve judicial econom y. 70 The Court finds that judicial econom y will be served by allowing Hanover to 67 Id. Id. 69 R. Doc. 128; No. 14-1933, R. Doc. 1. 70 United States v. Texas Educ. Agency (Lubbock Indep. Sch. Dist.), 138 F.R.D. 50 3, 50 8 (N.D. Tex.), aff’d sub nom . United States v. Texas Educ. Agency , 952 F.2d 399 (5th Cir. 1991) (“[J ]udicial econom y is a relevant consideration in decidin g a m otion for perm issive intervention.” (quotin g Venegas v. Skaggs, 867 F.2d 527, 529– 31 (9th Cir. 1989))). 68 11 intervene in this action and that allowing Hanover’s claim in intervention to proceed will not unduly delay or prejudice any parties. 71 Although the Arch declaratory judgm ent action has been pending for som e tim e, there has been virtually no activity in the case other than m otions for sum m ary judgm ent on the duty to defend, as the parties have been focusing on the underlying State-Court Lawsuits. Hanover’s claim in intervention is perm issible under Rule 24(b), and the Court will exercise its broad discretion by allowing the claim in intervention to proceed, as “[i]ntervention should generally be allowed where no one would be hurt and greater justice could be attained.”72 CON SID ERATION OF D ECLARATORY JU D GMEN T ACTION S Hanover has intervened to assert a declaratory judgm ent action against Masse and Allied. The Declaratory J udgm ent Act, 28 U.S.C. § 220 1, provides in pertinent part: In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, m ay declare the rights and other legal relations of any interested party seekin g such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force an d effect of a final judgm ent or decree an d shall be reviewable as such. 73 The Fifth Circuit has explained that, when considering a declaratory judgm ent action, a district court m ust engage in a three-step inquiry to determ ine whether to decide or 71 Deus v. Allstate Ins. Co., 15 F.3d 50 6, 525 (5th Cir. 1994) (“The intervention rule is intended to prevent m ultiple lawsuits where com m on questions of law or fact are in volved.”); In re En ron Corp. Sec., Derivative & “ERISA'” Litig., 229 F.R.D. 126, 129 (S.D. Tex. 20 0 5) (allowin g perm issive intervention where the Court found the intervenor did “n ot seek to create a whole new suit by its intervention , but for pragm atic reasons [sought] to preserve judicial econom y by sharing discovery m aterials that overlap with its own investigation . . . .”); Texas Educ. Agency , 138 F.R.D. at 50 8. 72 Ross v. Marshall, 426 F.3d 745, 753 (5th Cir. 20 0 5) (internal quotation m arks om itted). The Court notes that it dism issed Masse’s third-party dem ands as im proper under Rule 14. R. Doc. 321. Rule 14, which governs im pleader, sets forth a different standard than the standard for intervention set forth in Rule 24. Rule 14 requires that liability of the third-party defendant “be ‘dependent’ or ‘in som e way derivative’ of the outcom e of the m ain claim ,” Branch Consultants, L.L.C. v. Allstate Ins. Co., 265 F.R.D. 266, 272 (E.D. La. 20 10 ), while Rule 24 requires only that the party seekin g perm issive intervention have “a claim or defense that shares with the m ain action a com m on question of law or fact.” F ED. R. CIV. P. 24(b)(1)(B). 73 28 U.S.C. § 220 1. 12 dism iss a com plaint for declaratory relief. 74 First, the Court m ust determ ine whether the action is justiciable. 75 Second, the Court m ust determ ine whether it has the authority to grant declaratory relief. 76 Third, the Court must determ ine “how to exercise its broad discretion to decide or dism iss a declaratory judgm ent action.”77 If Hanover’s claim s survive this analysis, the Court will then consider whether Hanover has a duty to defen d the insured under the policies at issue. A. J usticiability The justiciability doctrines of standing, m ootness, political question, and ripen ess derive from Article III’s “case or controversy” requirem ent. 78 In a declaratory judgm ent action, justiciability often turns on ripeness. 79 This case is no exception. The ripeness doctrin e is drawn “both from Article III lim itations on judicial power and from prudential reasons for refusing to exercise jurisdiction.”80 The purpose of this doctrine is to forestall “entangl[em ent] . . . in abstract disagreem ents” through “avoidance of prem ature adjudication.”81 “The key considerations are ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’”82 74 Orix Credit All., Inc. v. W olfe, 212 F.3d 8 91, 8 95 (5th Cir. 20 0 0 ). See also Aggreko, LLC v. Am . Hom e Assur. Co., No. 14-1215, 20 14 WL 690 1376, at *3 (E.D. La. Dec. 5, 20 14). 75 Id. 76 Id. 77 Id. 78 Choice Inc. of Tex. v. Greenstein, 691 F.3d 710 , 714– 15 (5th Cir. 20 12). 79 See id; Orix, 212 F.3d at 895; Row an Cos., Inc. v. Griffin, 876 F.2d 26, 27– 28 (5th Cir. 198 9). 80 Reno v. Catholic Soc. Servs., Inc., 50 9 U.S. 43, 57 n.18 (1993). 81 Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). 82 N ew Orleans Public Serv., Inc. v. Counsel of City of N ew Orleans, 833 F.2d 58 3, 586 (5th Cir. 1987) (quotin g Abbott Labs., 387 U.S. at 149). 13 The Fifth Circuit has recognized that “applying the ripeness doctrine in the declaratory judgm ent context presents a unique challenge.”83 This stem s prim arily from the fact that declaratory relief often involves an ex ante determ ination of rights, i.e., a determ ination of rights before an injury has occurred, that “exists in som e tension with traditional notions of ripeness.”84 Fortunately, this challenge is not presented today, because the Court’s analysis is guided by a distinct subset of ripeness jurisprudence on disputes regarding the duty to defend. Because the duty to defend does not depend on the outcom e of the underlying law suit, 85 a duty-to-defend claim is ripe when the underlying suit is filed. 86 Accordingly, Hanover’s duty-to-defend claim is ripe, and the Court finds the action is justiciable. B. Authority to Grant Declaratory Relief The Fifth Circuit has explained that “when a state lawsuit is pendin g, m ore often than not, issuing a declaratory judgm ent will be tantam ount to issuing an injunction— providing the declaratory plaintiff an end run around the requirem ents of the AntiInjunction Act.”87 Therefore, the district court cannot consider the m erits of a declaratory judgm ent action when (1) a declaratory defendant has previously filed a cause of action in state court against the declaratory plaintiff; (2) the state case involves the sam e issues as 83 Orix, 212 F.3d at 8 96 (internal quotation m arks om itted). Id. 85 Suire v. Lafay ette City -Parish Consol. Gov’t, 90 7 So. 2d 37, 52 (La. 20 0 5). 86 See Colum bia Cas. Co. v. Ga. & Fla. RailN et, Inc., 542 F.3d 10 6, 110 (5th Cir. 20 0 8) (“An actual case or controversy exists before the resolution of an insured’s underlying suit concerning the insurer’s duty to defend.”) (em phasis in original); Morad v. Aviz, No. 12-2190 , 20 13 WL 140 3298, at *2 (E.D. La. Apr. 5, 20 13) (“Courts have routin ely held that courts m ay determ in e an insurer’s duty to defend even before the underlying suit is decided.”); Greenw ich Ins. Co. v. Capsco Indus., Inc., No. 1:14CV297-LG-J CG, 20 14 WL 50 25856, at *2 (S.D. Miss. Oct. 8, 20 14). 87 Travelers Ins. Co. v. Louisiana Farm Bureau Fed’n, Inc., 996 F.2d 774, 776 (5th Cir. 1993). The AntiInjunction Act states, “A court of the United States m ay not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgm ents.” 28 U.S.C. § 2283. 84 14 those involved in the federal case; and (3) the district court is prohibited from enjoining the state proceedings under the Anti-Injunction Act. 88 In Hanover’s com plaint in intervention, Hanover alleges that, pursuant to its policies, it is participating in Masse’s defense against the Adam s plaintiffs’ dem ands and third-party dem ands in the State-Court Lawsuits, “subject to a full reservation of rights.”89 Hanover does not assert that it is a party in the State-Court Lawsuits, and the Court is not aware of any state-court proceedings involving the sam e issues now being exam ined. Therefore, the Court finds that the Anti-Injunction Act does not apply, as there is no pen ding state-court action between Hanover and any of the defendants in this case. 90 Accordingly, the Court’s authority to grant declaratory relief on the duty-to-defend claim turns on whether subject-m atter jurisdiction is proper. 91 Hanover asserts the Court has subject-m atter jurisdiction over its intervention pursuant to 28 U.S.C. § 1332(a). 92 28 U.S.C. § 1332(a) provides that jurisdiction is proper where (1) the parties are com pletely diverse, and (2) the am ount in controversy exceeds $ 75,0 0 0 . 93 The parties are com pletely diverse when “the citizen ship of each plaintiff is diverse from the citizenship of each defendant.”94 All of the parties in this m atter are corporations. 95 For purposes of diversity jurisdiction, a corporation is a citizen of (1) its 88 Travelers, 996 F.2d at 776; Sherw in-W illiam s Co. v . H olm es Cty ., 343 F.3d 383, 387 (5th Cir. 20 0 3). R. Doc. 128 at 2. 90 See Sherw in -W illiam s, 343 F.3d at 387– 8 8 (“The district court also properly concluded that it had the authority to decide the declaratory judgm ent suit. Diversity jurisdiction was present and the AntiInjunction Act did not apply because there was no pen ding state court action between Sherwin-William s and any of the declaratory judgm ent defendants.”); Hudson Specialty Ins. Co. v. King Investm ents of Louisiana, Inc., No. 13-5990 , 20 14 WL 10 840 2, at *3 (E.D. La. J an. 10 , 20 14); N at’l Cas. Co. v . Tom ’s W elding, Inc., No. 11-310 1, 20 12 WL 20 64451, at *5 (E.D. La. J une 7, 20 12). 91 See Sherw in-W illiam s, 343 F.3d at 387– 8 8. 92 R. Doc. 128 at ¶ 6. 93 See 28 U.S.C. § 1332(a). 94 Caterpillar Inc. v. Lew is, 519 U.S. 61, 68 (1996). The parties have not disputed com plete diversity. Nonetheless, the Court has a duty to exam in e all aspects of subject m atter jurisdiction sua sponte. See Union Planters Bank N at’l Ass’n v . Salih, 369 F.3d 457, 460 (5th Cir. 20 0 4). 95 See R. Doc. 128 . 89 15 state of incorporation , and (2) the state in which its prin cipal place of busin ess is located. 96 According to the com plaint in intervention, Hanover is a citizen of New Ham pshire, the state of its incorporation, and Massachusetts, the state in which its principal place of business is located. 97 Defendant-in -intervention Masse is a citizen of Louisiana, the state of its incorporation and the state in which its principal place of business is located. 98 Defendant-in -intervention Allied is a citizen of Louisiana, the state of its incorporation and the state in which its principal place of business is located. 99 Because none of the defendants-in-intervention is a citizen of New Ham pshire or Massachusetts, the states in which Hanover is a citizen, there is com plete diversity. In addition to com plete diversity, Section 1332(a) requires that the am ount in controversy exceed $ 75,0 0 0 . As the party in voking federal jurisdiction, Hanover bears the burden of establishing the am ount in controversy by a preponderance of the eviden ce. 10 0 In order to determ ine whether that burden has been m et, the Court first inquires whether it is “facially apparent” from the com plaint that the am ount in controversy exceeds $ 75,0 0 0 . 10 1 If not, the Court m ay exam ine sum m ary judgm enttype evidence. 10 2 When an insurer seeks a declaratory judgm ent on coverage issues, the am ount in controversy is equal to the “[insurer’s] potential liability under the policy, plus potential attorneys’ fees, penalties, statutory dam ages, and punitive dam ages.”10 3 As set forth in 96 28 U.S.C. § 1332(c)(1). R. Doc. 128 at ¶ 3. 98 Id. at ¶ 4. 99 Id. at ¶ 5. 10 0 See Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 639 (5th Cir. 20 0 3). 10 1 See Hartford Ins. Grp. v. Lou-Con Inc., 293 F.3d 90 8, 910 (5th Cir. 20 0 2). 10 2 Id. 10 3 Id. (internal quotation m arks om itted). Unless the in surer seeks to void the entire insurance contract, the am ount in controversy is not m easured by the face am ount of the policy. Id. at 911. 97 16 the com plaint in this case and the petitions from the State-Court Lawsuits, the state-court plaintiffs allege they have suffered property dam age and severe bodily injury and have contracted diseases, including silicosis, Chronic Obstructive Pulm onary Disease, Wegener’s granulom atosis. Masse’s potential liability for these injuries—and thus Hanover’s derivative indem nity liability—could easily exceed $ 75,0 0 0 . 10 4 When coupled with Hanover’s poten tial defense obligations, the Court concludes the am ount in controversy exceeded the jurisdictional am ount at the tim e this action was filed. 10 5 Therefore, because the Court has diversity jurisdiction over this m atter and the Anti-Injunction action does not apply, the Court finds it has the authority to grant declaratory relief in this case. 10 6 C. Discretion to Exercise J urisdiction “Since its inception, the Declaratory J udgm ent Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants,” even when subject-m atter jurisdiction is otherwise proper. 10 7 The Fifth Circuit has developed seven factors—the so-called “Trejo factors”—that a district court should consider when deciding whether to exercise jurisdiction over a declaratory judgm ent action: (1) whether there is a pen ding state action in which all of the m atters in controversy m ay be fully litigated; (2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant; 10 4 The question arises whether Hanover’s indem n ity claim can count toward the am ount in controversy. The Fifth Circuit has held that the am ount in controversy is equal to the insurer’s “potential liability under [the] policy.” See St. Paul Reinsurance Co. Ltd., 134 F.3d 1250 , 1253 (5th Cir. 1998) (em phasis added); Hartford Ins. Grp., 293 F.3d at 912. 10 5 J urisdictional facts are judged as of the tim e the com plaint is filed. St. Paul, 134 F.3d at 1253. 10 6 See U.S. Fire Ins. Co. v. A-Port, LLC, No. 14-441, 20 15 WL 1416490 , at *3 (E.D. La. Mar. 26, 20 15); Hudson, 20 14 WL 10 840 2, at *3 (E.D. La. J an. 10 , 20 14); N at’l Cas. Co., 20 12 WL 20 64451, at *5. 10 7 W ilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). 17 (3) whether the plaintiff engaged in forum shopping in bringing the suit; (4) whether possible inequities in allowing the declaratory plaintiff to gain precedence in tim e or to change forum s exist; (5) whether the federal court is a convenient forum for the parties an d witnesses; (6) whether retaining the lawsuit would serve the purposes of judicial econom y; and (7) whether the federal court is being called on to construe a state judicial decree involving the sam e parties an d entered by the court before whom the parallel state suit between the sam e parties is pen ding. 10 8 As set forth below, the Trejo factors weigh in favor of exercisin g jurisdiction. Accordingly, the Court will exercise jurisdiction over this m atter. 1. N ature of Pending State Court Action The first Trejo factor requires com parison of the declaratory judgm ent action with the underlying state-court action. 10 9 If the declaratory judgm ent action presents the sam e issues as the state-court action, involves the sam e parties, and is not governed by federal law, the federal court should generally declin e to exercise jurisdiction. 110 If, on the other hand, the state-court action is not truly parallel because it does not involve all the sam e parties or issues as the declaratory judgm ent action, a federal court should consider the degree of sim ilarity between the two actions. 111 10 8 Sherw in-W illiam s, 343 F.3d at 388 . See id. at 393– 94. 110 See id.; W ilton, 515 U.S. at 283 (“[W]here another suit involving the sam e parties and presenting opportun ity for ventilation of the sam e state law issues is pendin g in state court, a district court m ight be indulgin g in ‘[g]ratuitous interference,’ if it perm itted the federal declaratory action to proceed.”) (second alteration in original) (internal citation om itted) (quoting Brillhart v. Excess Ins. Co. of Am ., 316 U.S. 491, 495 (1942)). 111 See Sherw in-W illiam s, 343 F.3d at 394 n.5. 10 9 18 Hanover is not a party to the State-Court Lawsuits. Moreover, whereas the StateCourt Lawsuits involve issues of fact, fault, and causation, the determ ination of whether there is a duty to defend involves a straightforward exam ination of the state-court pleadings and the in surance policies Hanover issued to the state-court defendants. Furtherm ore, the resolution of the State-Court Lawsuits will not determ ine Hanover’s duty to provide coverage. The state an d federal proceedings are clearly not parallel. “[T]he lack of a pending parallel state proceeding . . . weighs strongly again st dism issal.”112 The first Trejo factor weighs in favor of exercising jurisdiction. 2. Order of Filing The St. Pierre lawsuit was filed on Decem ber 8, 20 10 , 113 and the Adam s lawsuit was filed on Decem ber 28, 20 10 . 114 Arch filed the lawsuit presently before this Court on August 22, 20 14, 115 and Hanover filed its com plaint-in-intervention on J anuary 14, 20 15. 116 Hanover likely was aware that its insurance coverage of Superior and Masse would becom e an issue in the pending State-Court Lawsuits. Therefore, Hanover m ay have filed its com plaint in intervention in anticipation of becom ing a party to the pen ding State-Court Lawsuits. 117 The second Trejo factor weighs against exercising jurisdiction. 118 112 Id. at 394. See also Fed. In s. Co. v. Sw . Materials, Inc., No. 0 2-1787, 20 0 3 WL 21634945, at *3 (E.D. La. J uly 3, 20 0 3) (findin g abstention unwarranted in sim ilar circum stances). 113 R. Doc. 228-5 at 3. 114 R. Doc. 228-4 at 5. 115 No. 14-1933, R. Doc. 1. 116 R. Doc. 128. 117 See Great Am . Ins. Co. v . Cum berland Inv . Grp., LLC, No. 13-4763, 20 13 WL 5755641, at *4 (E.D. La. Oct. 23, 20 13) (notin g the plaintiff “was aware the issue of its insurance coverage of [the defendant] would be at issue in the pending state court proceedin g,” con cluding that “it can be assum ed that [the plaintiff] filed for Declaratory J udgm ent on J un e 10 , 20 13 in anticipation of becom in g a party to that pendin g state court action,” and findin g the second Trejo factor weighs against exercisin g jurisdiction). 118 See U.S. Fire, 20 15 WL 1416490 , at *4. 19 3. Forum Shopping That Hanover could have intervened and requested declaratory judgm ent in the State-Court Lawsuits does not necessarily dem onstrate forum shopping. 119 As a prelim inary m atter, there is no guarantee Hanover would have been allowed to intervene in the State-Court Lawsuits. 120 Moreover, courts are less likely to find forum shopping where, as here, (1) a foreign insurer files a diversity action in federal court, and (2) the selection of the federal forum does not change the applicable law. 121 “The record does not support a finding that [Hanover] engaged in im perm issible forum shopping by filing this declaratory judgm ent suit.”122 The third Trejo factor weighs in favor of exercising jurisdiction. 4. Inequities The Court cannot conceive of any inequities that flow from allowing Hanover to proceed in this action while the State-Court Lawsuits rem ain pending. As explain ed above, the State-Court Lawsuits and this action are not parallel in any m aterial sense. No party will be prejudiced if this action is resolved before the State-Court Lawsuits. The fourth Trejo factor weighs in favor of exercising jurisdiction. 5. Convenience of Federal Forum The State-Court Lawsuits are pending in the 17th J udicial District Court for the Parish of Lafourche, State of Louisiana. 123 The state courthouse for the 17th J udicial 119 See id. See LA. CODE CIV. P ROC. art. 10 91 (“A third person having an interest therein m ay interven e in a pendin g action to en force a right related to or connected w ith the object of the pending action against one or m ore of the parties thereto.” (em phasis added)). 121 See Sherw in-W illiam s, 343 F.3d at 399. 122 Id. at 40 0 . See also Ironshore Specialty Ins. Co. v. Tractor Supply Co., 624 F. App’x 159, 167 (5th Cir. 20 15) (per curiam ). 123 See R. Docs. 228-5, 228-6. 120 20 District Court for Lafourche Parish is approxim ately 60 m iles west of the federal courthouse in New Orleans. No party argues that this forum is inconvenient or that either forum is m ore convenient than the other for the parties or for the witnesses. This factor is neutral. 124 6. Judicial Econom y This action has been pending for m ore than 18 m onths. The duty-to-defen d issue has been fully briefed before this Court. It would be a waste of judicial resources to dism iss this action and require Hanover to refile in another forum . Exercising jurisdiction is clearly in the interest of judicial econom y. 125 This factor weighs in favor of exercising jurisdiction. 7. Interpretation of Decree from Parallel State Proceeding Again, the State-Court Lawsuits an d this action are clearly not parallel. This Court need not interpret any decree issued in the State-Court Lawsuits to determ ine whether Hanover has a duty to defend or provide coverage. The seventh Trejo factor weighs in favor of exercising jurisdiction. 126 124 See GlobalSantaFe Drilling Co. v. Quinn, No. 12-1987, 20 12 WL 4471578 , at *4 (E.D. La. Sept. 26, 20 12) (“It does not appear that the Eastern District of Louisiana is any m ore convenient or less convenient of a forum ; the parties are located outside the state but the witn esses are located within. Therefore, this factor is neutral.” (citations om itted)); Great Am . Ins. Co. v . Cum berland Inv. Grp., LLC, No. 13-4763, 20 13 WL 5755641, at *5 (E.D. La. Oct. 23, 20 13); Gem ini Ins. Co. v. Turn er Indus. Grp., LLC, No. 13-0 5922, 20 14 WL 3530 475, at *5 (E.D. La. J uly 16, 20 14). 125 See Ironshore, 624 F. App’x at 168 (finding that the judicial econom y factor weighed against dism issal when the parties had “already fully briefed the insuran ce coverage issues to the district court and entered into extensive factual stipulations”); Agora Sy ndicate, Inc. v. Robinson Janitorial Specialists, Inc., 149 F.3d 371, 373 (5th Cir. 1998) (finding that judicial econom y weighed against dism issal in part because “there [were] no factual disputes between the parties and . . . they have fully briefed the m erits of the insurance issues”). 126 Ironshore, 624 F. App’x at 168 (“The seventh and last factor . . . weighs against dism issal. There is no need to construe a state judicial decree to resolve the issues in this case.”). See also U.S. Fire, 20 15 WL 1416490 , at *5. 21 Five of the Trejo factors weigh in favor of exercising jurisdiction, while one weighs against and another is neutral. Accordingly, the Court will exercise its jurisdiction over this m atter. 127 LAW AN D AN ALYSIS A. The “Eight-Corners Rule” Under Louisiana law, an insurance policy is a contract and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. 128 A liability insurer’s duty to defend and the scope of its coverage are separate and distinct issues. 129 Under Louisiana law, an insurer’s duty to defend is broader than its obligation to indem nify for dam age claim s. 130 Louisiana courts apply the “eight-corners rule” to determ ine whether a liability insurer has the duty to defend a civil action against its insured; courts look to the “four corners” of the plaintiff’s petition in the civil action and the “four corners” of the insurance policy to determ ine whether the insurer owes its insured a duty to defend. 131 One Louisiana court explained as follows: Under [the “eight-corners”] analysis, the factual allegations of the plaintiff’s petition m ust be liberally interpreted to determ ine whether they set forth grounds which raise even the possibility of liability under the policy. In other words, the test is not whether the allegations unam biguously assert coverage, but rather whether they do not unam biguously exclude coverage. Sim ilarly, even though a plaintiff’s petition m ay allege num erous claim s for which coverage is excluded under an insurer’s policy, a duty to defend m ay nonetheless exist if there is at least a single allegation in the petition under which coverage is not unam biguously excluded. 132 127 Applyin g this sam e analysis to the declaratory judgm ent action filed by Arch against Masse and Allied (No. 14-1933) would result in the sam e conclusion . 128 Sher v. Lafay ette Ins. Co., 20 0 7-2441 (La. 4/ 8/ 0 8), 988 So. 2d 186, 192, on reh’g in part (J uly 7, 20 0 8 ). 129 Mossy Motors, Inc. v . Cam eras Am ., 20 0 4-0 726 (La. App. 4 Cir. 3/ 2/ 0 5), 898 So. 2d 60 2, 60 6, w rit denied, 20 0 5-1181 (La. 12/ 9/ 0 5), 916 So. 2d 10 57. 130 Henly v. Phillips Abita Lum ber Co., 20 0 6-1856 (La. App. 1 Cir. 10 / 3/ 0 7), 971 So. 2d 110 4, 110 9. 131 Mossy , 898 So. 2d at 60 6. 132 Id. (citations om itted). 22 The duty to defend “arises when ever the pleadings again st the insured disclose even a possibility of liability under the policy.”133 The insurer has a duty to defend unless the allegations in the petition for dam ages, as applied to the policy, unam biguously preclude coverage. 134 “Once a com plaint states one claim within the policy’s coverage, the insurer has a duty to accept defense of the entire lawsuit, even though other claim s in the com plaint fall outside the policy’s coverage.”135 When a party files a m otion for sum m ary judgm ent regarding the duty to defend, the Court m ay consider only the plaintiff’s petition and the face of the policies; the parties cannot present any evidence such as affidavits or depositions. 136 Factual inquiries beyond the petition for dam ages and the relevant insurance policy are prohibited with respect to the duty to defend. 137 Any am biguities within the policy are resolved in favor of the insured to effect, not deny, coverage. 138 B. The Policies Hanover issued three com m ercial lin es policies to Masse: on e that provided coverage from Novem ber 15, 20 0 9, through Novem ber 15, 20 10 (“the 20 0 9 policy”), 139 another that provided coverage from Novem ber 15, 20 10 , through Novem ber 15, 20 11 133 Steptore v. Masco Const. Co., 93-20 64 (La. 8/ 18/ 94), 643 So. 2d 1213, 1218 . See also United N at’l Ins. Co. v. Paul and Mar’s Inc., No. 10 -799, 20 10 WL 2690 615, at *2 (E.D. La. J uly 11, 20 11). 134 Martco Ltd. P’ship v. W ellons, Inc., 588 F.3d 8 64, 872 (5th Cir. 20 0 9). 135 Treadw ay v. Vaughn, 633 So. 2d 626, 628 (La. Ct. App. 1993), w rit denied, 635 So. 2d 233 (La. 1994). 136 Milano v. Bd. of Com m ’rs of Orleans Levee Dist., 96-1368 (La. App. 4 Cir. 3/ 26/ 97), 691 So. 2d 1311, 1314. 137 Martco, 58 8 F.3d at 872. 138 Doerr v. Mobil Oil Corp., 20 0 0 -0 947 (La. 12/ 19/ 0 0 ), 774 So. 2d 119, 124. Hanover argues that “neither Allied nor Masse can sustain their burden of establishing” that the state-court plaintiffs’ bodily injuries or property dam age occurred during Hanover’s policy periods. R. Doc. 228 -1 at 11. This, however, is not the correct standard for m otion s for sum m ary judgm ent on the duty to defend. 139 R. Doc. 228-8. 23 (“the 20 10 policy”), 140 and a third that provided coverage from Novem ber 15, 20 11, through Novem ber 15, 20 12 (“the 20 11 policy”). 141 1. General Liability The 20 0 9 an d 20 10 policies provide that Hanover “will pay on behalf of the insured all sum s which the insured shall becom e legally obligated to pay as dam ages because of . . . bodily injury [and] . . . property dam age to which this insuran ce applies, caused by an occurrence, and [Hanover] shall have the right and duty to defend any suit against the insured seeking dam ages . . . .”142 Sim ilarly, the 20 11 policy states that Hanover “will pay those sum s that the insured becom es legally obligated to pay as dam ages because of ‘bodily injury’ or ‘property dam age’ to which this insurance applies” and that Hanover “will have the right and duty to defen d the insured again st any ‘suit’ seeking those dam ages.”143 The 20 0 9 an d 20 10 policies defin e “bodily injury” as “bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any tim e resulting therefrom .”144 The 20 0 9 an d 20 10 policies defin e “property dam age” as “(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any tim e resulting therefrom , or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.”145 The policies defin e “occurrence” as “an accident, including continuous or repeated exposure in conditions, 140 R. Doc. 228-9. Doc. 228-10 . 142 R. Doc. 228-8 at 15; R. Doc. 228 -9 at 15. 143 R. Doc. 228-10 at 11. 144 R. Doc. 228-8 at 9; R. Doc. 228-9 at 9. 145 R. Doc. 228-8 at 11; R. Doc. 228 -9 at 11. 141 R. 24 which results in bodily injury or property dam age neither expected nor intended from the standpoint of the insured.”146 Sim ilarly, the 20 11 policy defin es “bodily injury” as “bodily injury, sickness or disease sustain ed by a person, including death resulting from any of these at any tim e.”147 The 20 11 policy states, “‘Property dam age’ m eans: (a) physical in jury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deem ed to occur at the tim e of the physical injury that caused it; or (b) Loss of use of tangible property that is not physically injured. All such loss of use shall be deem ed to occur at the tim e of the ‘occurrence’ that caused it.”148 The 20 11 policy defines “occurrence” as “all loss or dam age that is attributable directly or indirectly to: (a) One cause, act, event or series of sim ilar related causes, acts or events involving one or m ore persons; or (b) One cause, act or event, or a series of sim ilar related causes, acts or events not involving any person.”149 The 20 11 policy states, “This insurance applies to ‘bodily injury’ and ‘property dam age’ only if: (1) The ‘bodily injury’ or ‘property dam age’ is caused by an ‘occurrence’ that takes place in the ‘coverage territory’; and (2) The ‘bodily injury’ or ‘property dam age’ actually com m ences during the policy period.”150 The policy’s “coverage territory” includes the United States. 151 2. Silicon, Silica, and Silicate Exclusion All three policies contain an exclusion for silicon, silica, and silicate. The 20 0 9 and 20 10 policies provide as follows: 146 R. Doc. 228-8 at 11; R. Doc. 228 -9 at 11. R. Doc. 228-10 at 6. 148 Id. at 10 . 149 Id. at 9. 150 Id. at 11. 151 See id. at 6. 147 25 1. This insurance does not apply to any liability or loss, cost or expense arising out of the actual, alleged or threatened contam inative, pathogenic, toxic or other hazardous properties of Silicon. 2. This insurance does not apply to any loss, cost or expense arising out of any: a. [R]equest, dem and, order or regulatory or statutory requirem ent that any assured or others test for, m onitor, clean up, rem ove, contain, treat, detoxify or neutralize, or in any way respon d to, or assess the effects of Silicon[;] or b. Claim or proceeding by or on behalf of a governm ental authority or others for dam ages because of testing for, monitoring, cleaning up, rem oving, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of Silicon. As used in this exclusion, Silicon m eans the elem ent Silicon, includin g silica and other silicate com pounds, or its presence or use in an y other alloy, byproduct, com pound or other m aterial or waste. Waste includes m aterial to be recycled, reconditioned or reclaim ed. 152 The 20 11 policy contains a sim ilar exclusion: This insurance does not apply to any “bodily injury” or “property dam age”, or loss, cost or expense, however caused, arising out of the actual, alleged or threatened: (1) contam inative, pathogenic, toxic or other hazardous properties of Silicon. (2) request, dem and, order or regulatory or statutory requirem ent that any insured or others test for, m onitor, clean up, rem ove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of silicon; or (3) claim or proceeding by or on behalf of a governm ental authority or others for dam ages because of testing for, m onitoring, cleaning up, rem oving, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of Silicon. As used in this exclusion, Silicon m eans the elem ent Silicon, including silica an d other silicate com pounds, or its presen ce or use in any other alloy, by-product, com pound or other m aterial or waste. Waste includes m aterial to be recycled, reconditioned or reclaim ed. 153 3. Pollution Buy back Endorsem ent The policies also contain a Pollution Buyback Endorsem ent. In relevant part, the endorsem ent contained in the 20 0 9 an d 20 10 policies states as follows: It is hereby understood and agreed that this policy shall not apply to any claim arising out of the discharge, dispersal, release or escape of sm oke, vapors, soot, fum es, alkalis, toxic chem icals, liquids or gases, waste m aterials, oil or other 152 153 R. Doc. 228-8 at 43; R. Doc. 228-9 at 43. R. Doc. 228-10 at 23. 26 petroleum substance or derivative (including all oil refuse or oil m ixed wastes) or other irritants, contam inants or pollutants or upon land, the atm osphere, or an y watercourse or body of water. This exclusion shall not apply, however, provided that the Assured establishes that all of the following conditions have been m et[:] (a) the occurrence was accidental and was neither expected nor intended by the assured. An occurrence shall not be considered uninten ded or unexpected unless caused by som e intervening event neither foreseeable nor intended by the assured. (b) the occurrence can be identified as com m encing at a specific tim e and date during the term of the policy. (c) the occurren ce becam e known to the assured within 72 hours after it’s [sic] com m encem ent. (d) the occurrence was reported in writing to these underwriter [sic] within 30 days after having becom e known to the assured. (e) the occurrence did not result from the assured’s intentional and willful violation of any governm ent statute, rule or regulations. 154 The Pollution Buyback Endorsem ent in the 20 11 policy is worded slightly differently, as it states, “This policy shall apply to any claim arising out of the discharge, dispersal, release, or escape of sm oke, vapors, soot, fum es . . . provided that the insured establishes that all of the following conditions have been m et . . . .”155 The endorsem ent in the 20 11 policy contain s the sam e five tim e-elem ent conditions. 156 The differences in the language of the endorsem ent in the 20 11 policies are im m aterial, as the effect of the endorsem ent in the 20 11 policy is the sam e as the effect of the endorsem ent in the 20 0 9 and 20 10 policies. Hanover does not argue otherwise and indeed analyzes the policies together. 157 154 R. Doc. 228-8 at 33; R. Doc. 228-9 at 33. R. Doc. 228-10 at 63. 156 Id. 157 See R. Doc. 228-1 at 13– 17. 155 27 C. The Allegations of the State-Court Lawsuits In Adam s, et al. v. Allied Shipy ard, Inc., et al., the plaintiffs allege they “are residents of a n eighborhood that borders” Allied’s shipyard. 158 They further allege that Allied, whose shipyard has been operating since the 1960 s, has been operating “for decades without appropriate borders to stop the resulting dangerous silica dust produced by its sandblasting from perm eating the n eighborhood.”159 Allied’s alleged negligence has “expos[ed] the residents to dust containing silica sand, a very dangerous substance, as well as other toxic substances.”160 The petition alleges that the plaintiffs’ “long, consistent and protracted” exposure and “inhalation of the silica dust” has caused the plaintiffs to contract severe diseases and illnesses “that are painful and disabling,” including Wegener’s granulom atosis, rheum atoid arthritis, silicosis, and Chronic Obstructive Pulm onary Disease. 161 In the plaintiffs’ third am ended petition for dam ages, the plaintiffs nam ed Masse as a defendant. 162 The plain tiffs allege that Masse has “conducted sandblasting and painting operations and [has] allowed dangerous byproduct to drift into the neighborhood,” which “caused both personal injuries and property dam ages to all Plaintiffs.”163 In St. Pierre, et al. v. Allied Shipy ard, Inc., the plaintiffs allege they lived in a residence near Allied’s shipyard for approxim ately eight years preceding 20 10 . 164 The St. Pierre plaintiffs allege that Allied was negligent when perform ing its operations, which “resulted in the release into the atm osphere and environm ent in the neighborhoods 158 R. Doc. 228-4 at 1. Id. at 2. 160 Id. 161 Id. at 2– 3. 162 Id. at 12– 13. 163 Id. at 13. 164 R. Doc. 228-5 at 1. 159 28 surrounding the shipyard of hazardous substances, including, but not lim ited to, paint, sand and silica.”165 The petition alleges that, as a result, the plaintiffs were exposed to the hazardous substances and “have suffered personal injury, m ental anguish, health problem s, inconvenience, distress, loss of consortium , fear of disease, and other dam ages.”166 D. Hanover Argues the Dam ages Did Not Occur during the Policy Periods and, Thus, Recovery is Unam biguously Excluded under the Policies The Hanover policies im pose on Hanover a duty to pay on behalf of its insured any sum s the insured becom es legally obligated to pay as dam ages because of “bodily injury” or “property dam age” caused by an “occurrence” and to which the policies apply. 167 Under the 20 0 9 and 20 10 policies, the bodily injury or property dam age m ust “occur[] during the policy period.”168 Hanover argues that it has no duty to defend Masse or Allied because the StateCourt Lawsuits do not allege “bodily injury” or “property dam age” that “occurred” during the policy periods. 169 Hanover argues, “[N]either underlying plaintiffs nor Allied have alleged any injuries during Hanover’s Policy periods, m uch less that Masse was actually perform ing any work at Allied’s shipyard during Hanover’s Policy periods that could have caused underlying plaintiffs’ alleged dam ages during the relevant periods.”170 As previously explain ed, however, Hanover m isstates the standard for a m otion for sum m ary 165 Id. Id. 167 See R. Doc. 228-8 at 15; R. Doc. 228-9 at 15; R. Doc. 228-10 at 11. 168 R. Doc. 228-8 at 9, 11; R. Doc. 228-9 at 9, 11. Hanover argues it has no duty to defend under any of the three policies issued to Masse because the in jury did not occur during the policy period. The 20 11 policy defines an “occurrence” but also includes the term “com m ence.” R. Doc. 228-10 at 11 (“This insurance applies to ‘bodily injury’ an d ‘property dam age’ only if . . . [t]he ‘bodily in jury’ or ‘property dam age’ actually com m ences during the policy period.”). Hanover does not rely on the argum ent that the dam age did not com m ence during the policy period as a basis for its m otion. 169 R. Doc. 228-1 at 10 – 11. 170 Id. at 11. 166 29 judgm ent on the duty to defend. 171 To prevail on a m otion for sum m ary judgm ent that it has no duty to defend, an insurer m ust establish that coverage is unam biguously precluded based on review of the four corners of the petition for dam ages and the four corners of the com plaint. 172 The Hanover policy periods span Novem ber 15, 20 0 9, through Novem ber 15, 20 12. 173 The Adam s lawsuit was filed on Decem ber 28, 20 10 . 174 The petition in Adam s notes that Allied has operated “for decades without appropriate borders” to prevent dangerous silica dust from perm eating the neighborhood and that the exposure has been “prolonged” and “long, consistent and protracted.”175 Thus, the Adam s plaintiffs’ allege their exposure occurred over decades. The Adam s plaintiffs also allege that they contracted illnesses and diseases as a result of the exposure and that “[t]he dust is so constant and volum inous that residents m ust continuously wash their cars and houses, alm ost on a daily basis.”176 They seek dam ages for m edical expenses, loss of incom e, property dam age, and loss of value of property. 177 The St. Pierre lawsuit was filed on Decem ber 8 , 20 10 . 178 The St. Pierre petition alleges that “[f]or approxim ately eight (8) years, the plaintiffs have lived in a residence . . . located n ear the shipyard,” and during that tim e, they were exposed to the hazardous substances released by Allied. 179 Based on the allegations in the St. Pierre lawsuit, the St. Pierre plaintiffs’ exposure began in 20 0 2, eight years prior to the suit’s filing, an d 171 See supra Part A (The “Eight-Corn ers Rule”). Id. 173 R. Doc. 228-8 at 1; R. Doc. 228-9 at 1; R. Doc. 228-10 at 1. 174 See R. Doc. 228-4 at 5. 175 Id. at 2, 3. 176 Id. at 2– 3. 177 Id. at 4. 178 See R. Doc. 228-5 at 3. 179 R. Doc. 228-5 at 1. 172 30 continued at least until 20 10 , when the petition was filed. The St. Pierre plaintiffs allege that, as a result of the exposure, they “have suffered personal injury, m ental anguish, health problem s,” and other dam ages. 180 They seek dam ages for physical and m ental pain and suffering, m edical expen ses, dam age to personal property. 181 Although the state-court petitions do not identify a precise tim e period during which the plaintiffs were exposed to the hazardous substances causing bodily injury and property dam age, a review of the petitions and the policies does not unam biguously preclude a finding that the exposure occurred during the policy periods. “An in sured’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy.”182 The petitions clearly allege exposure that was ongoing and continuous for years, even decades in Adam s. The plaintiffs in St. Pierre allege that they were exposed to the hazardous substances from 20 0 2 to 20 10 . 183 The policies Hanover issued to Masse provide coverage during these tim e periods. 184 The eight corners of the state-court petitions and the policies do not unam biguously preclude the 180 Id. 181 Id. at 2. Steptore, 643 So. 2d at 1218. 183 To determ in e when property dam age or bodily in jury “occurs” due to long-term exposure to harm ful substances, Louisiana courts apply the exposure theory. See Cole v. Celotex Corp., 599 So. 2d 10 58, 10 76– 77 (La. 1992); N orfolk S. Corp. v . California Union In s. Co., 20 0 2-0 369 (La. App. 1 Cir. 9/ 12/ 0 3), 859 So. 2d 167, 192, w rit denied, 20 0 3-2742 (La. 12/ 19/ 0 3), 8 61 So. 2d 579; Grefer v. Travelers Ins. Co., 0 4-1428 (La. App. 5 Cir. 12/ 16/ 0 5), 919 So. 2d 758 , 765. Masse argues in its opposition that the exposure theory applies. See R. Doc. 254 at 14. Hanover does not dispute this but argues that “any reliance on exposure theory to suggest that Hanover’s defense obligation is triggered is m isleading in the absence of any allegation of actual exposure during Hanover’s policies.” R. Doc. 291 at 3. Under the exposure theory, “[e]ven where the dam age or injury was not m anifested until after an insurer’s policy period, if the insurer’s policy period fell either at the inception or durin g the course of exposure, the insurer would be liable.” Oxner v. Montgom ery , 34,727 (La. App. 2 Cir. 8/ 1/ 0 1), 794 So. 2d 86, 93, w rit denied, 8 0 3 So. 2d 36 (La. 20 0 1). Thus, applyin g the exposure theory, the state-court plaintiffs’ bodily injuries and property dam age “occurred” “during the entire course of [the plaintiffs’] exposure.” Id. Thus, “if the insurer’s policy period fell either at the inception or during the course of exposure, the insurer would be liable.” Id. 184 R. Doc. 228-8 at 1; R. Doc. 228-9 at 1. 182 31 possibility that the exposure causing the plain tiffs’ personal injuries and property dam age occurred during Hanover’s policy periods. 185 E. Hanover Argues the Policies’ Silicon, Silica, and Silicate Exclusion Unam biguously Excludes Coverage Hanover argues separately and alternatively that the eight corners of the petition and the silicon, silica, and silicate exclusion included in its policies taken together unam biguously bar coverage for any liability of the state-court plaintiffs’ injuries. 186 The silicon, silica, and silicate exclusion contained in all three policies precludes coverage for any liability or loss “arising out of the actual, alleged or threaten ed contam inative, pathogenic, toxic or other hazardous properties of Silicon.”187 In their origin al petition for dam ages, the Adam s plaintiffs allege that their exposure to “silica sand . . . as well as other toxic substances”188 and “silica dust and other harm ful products” caused their injuries. 189 The plaintiffs’ third am ended petition for dam ages alleges that the defendants “have conducted sandblasting and painting operations and have allowed dangerous byproduct to drift into the neighborhood” and “[t]he byproduct caused both personal injuries and property dam ages to all Plaintiffs.”190 The plaintiffs allege their exposure to hazardous substances, in addition to silica dust, caused their personal injuries and property dam age. The petition for dam ages does not 185 R. Docs. 228-4, 228-5. See also Duhon v. N itrogen Pum ping & Coiled Tubing Specialists, Inc., 611 So. 2d 158 , 161– 62 (La. Ct. App. 1992) (From a com m on sense reading of the plaintiffs’ petition, we cannot say that the allegations unam biguously rest on an occurrence which began before the policy period. Plaintiffs’ petition generally alleges a period of tim e when acts of liability took place. However, no particular accident is detailed, and no specific allegation is m ade that the plaintiffs were repeatedly exposed to the sam e harm ful condition prior to the effective date of Lloyd’s policies. . . . Accordingly, because plaintiffs’ petition does not unam biguously exclude that the occurrence began during the policy period, Lloyd’s m ust defend NPACT. . . .”). 186 R. Doc. 228-1 at 12– 13. 187 R. Doc. 228-8 at 43; R. Doc. 228-9 at 43; R. Doc. 228-10 at 23. 188 R. Doc. 228-4 at 2. 189 Id. at 3. 190 Id. at 13. 32 unam biguously lim it the cause of their injuries to “contam inative, pathogenic, toxic or other hazardous properties of Silicon,” to which the exclusion applies. 191 The St. Pierre petition for dam ages also does not unam biguously lim it the cause of the plaintiffs’ injuries to the hazardous properties of silicon, silica, or silicate. The St. Pierre plaintiffs allege that Allied’s operations “resulted in the release into the atm osphere and environm ent in the neighborhoods surrounding the shipyard of hazardous substances, including, but not lim ited to, paint, sand and silica,”192 which caused the plaintiffs’ personal injuries and property dam age. 193 Considering the Adam s petitions for dam ages, the St. Pierre petition for dam ages, and the language of the exclusion found in the policies, the Court does not find that the silicon, silica, and silicate exclusion unam biguously bars coverage of the dam ages alleged in the State-Court Lawsuits. F. Hanover Argues the Policies’ Pollution Buyback Endorsem ent Unam biguously Excludes Coverage Hanover further argues separately and alternatively that the eight corners of the petitions and the Pollution Buyback Endorsem ent found in its policies unam biguously preclude coverage. 194 The Pollution Buyback Endorsem ent excludes coverage for “any claim arising out of the discharge, dispersal, release or escape of sm oke, vapors, soot, fum es, alkalis, toxic chem icals, liquids or gases, waste m aterials, oil or other petroleum substance or derivative (including all oil refuse or oil m ixed wastes) or other irritants, contam inants or pollutants into or upon land, the atm osphere, or any watercourse or body 191 R. Doc. 228-8 at 43; R. Doc. 228-9 at 43; R. Doc. 228-10 at 23. R. Doc. 228-5 at 1. 193 Id. at 2. 194 R. Doc. 228-1 at 13– 17. 192 33 of water.”195 The insured m ay still be entitled to coverage, however, if it establishes five conditions. 196 The endorsem ent is a total pollution exclusion on dam ages caused by pollutants, with tim e-elem ent exceptions. 197 Hanover m ust establish that the exclusion unam biguously precludes coverage before the Court m ay consider whether the tim eelem ent conditions have been m et. 198 The Louisiana Suprem e Court has ruled that a literal application of a total pollution exclusion “would lead to . . . absurd results” and explained that, “[i]n light of the origin of pollution exclusions, as well as the am biguous nature and absurd consequences which attend a strict reading of these provisions,” a total pollution exclusion is “neither designed nor intended to be read strictly to exclude coverage for all interactions with irritants or contam inants of any kind.”199 As a result, the Louisiana Suprem e Court has instructed that courts m ust “attem pt to determ ine the true m eaning and interpretation of [the] pollution exclusion.”20 0 In Doerr v. Mobil Oil Corporation, the Louisiana Suprem e Court explain ed that the applicability of such an exclusion in any given case m ust necessarily turn on three considerations: (1) whether the insured is a “polluter” within the m eaning 195 R. Doc. 228-8 at 33; R. Doc. 228-9 at 33. The Pollution Buyback Endorsem ent in the 20 11 policy is worded slightly differently. See R. Doc. 228-10 at 63. (“This policy shall apply to any claim arisin g out of the discharge, dispersal, release, or escape of sm oke, vapors, soot, fum es . . . provided that the insured establishes that all of the following conditions have been m et . . . .”). Nevertheless, the effect of the endorsem ent in the 20 11 policy is the sam e as the effect of the endorsem ent in the 20 0 9 and 20 10 policies. Hanover does not argue otherwise and indeed analyzes the policies together. See R. Doc. 228-1 at 13– 17. 196 R. Doc. 228-8 at 33; R. Doc. 228-9 at 33; R. Doc. 228-10 at 63. 197 See R. Doc. 228-8 at 33 (“This exclusion shall not apply, however, provided that the Assured establishes that all of the followin g con ditions have been m et . . . .”); R. Doc. 228 -9 at 33 (sam e); R. Doc. 228-10 at 63 (“[T]his policy shall apply to any claim arising out of the discharge, dispersal, release or escape of sm oke, vapors, soot, fum es, alkalis, toxic chem icals, liquids or gases, waste m aterials, oil or other petroleum substance or derivative (in cluding all oil refuse or oil m ixed wastes) or other irritants, contam inants or pollutants into or upon land, the atm osphere, or any watercourse or body of water provided that the insured establishes that all of the following conditions have been m et . . . .”). 198 See Martco, 58 8 F.3d at 8 8 0 , 8 83– 84 (“[The insurer] bears the burden of proving the applicability of an exclusionary clause within the Policy. If [the insurer] cannot unam biguously show an exclusion applies, the Policy m ust be construed in favor of coverage.” (citations om itted)). 199 Doerr, 774 So. 2d at 135. 20 0 Id. at 125. 34 of the exclusion; (2) whether the injury-causing substance is a “pollutant” within the m eaning of the exclusion; and (3) whether there was a “discharge, dispersal, seepage, m igration, release or escape” of a pollutant by the insured within the m eaning of the policy. 20 1 If the insurer fails to show these three questions are answered in the affirm ative, the total pollution exclusion is not applicable and the court need not exam ine whether the tim e-elem ent conditions, or exceptions, contained in the endorsem ent are m et. 20 2 The Louisiana Suprem e Court expressly stated that these factors m ust be con sidered “in an y given case,”20 3 which this Court construes to include decisions involving a m otion for sum m ary judgm ent on the duty to defend, as well as m otions involving the duty to indem nify. Although the Doerr factors should be considered in the duty-to-defend context, the Court is nevertheless lim ited to the eight corners of the petitions and the policies when deciding whether to apply a total pollution exclusion as written. This is borne out by an exam ination of Louisiana state court cases facing this issue. In Lodw ick, L.L.C. v. Chevron U.S.A., Inc., for exam ple, a Louisiana appellate court found that, considering the four corners of the underlying petitions and the four corners of the tim e-elem ent pollution 20 1 Id. The exclusion in Doerr precluded coverage for bodily or personal injury, advertising injury, or property dam age that “would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, m igration, release or escape of pollutants at any tim e.” Doerr, 774 So. 2d at 122. The Doerr policy defin ed “pollutants” as “solid[,] liquid, gaseous, or therm al irritant or contam inan t including sm oke, vapor, soot, fum es, acid, alkalis, chem icals and waste.” Id. The court instead found it was “appropriate to construe a pollution exclusion clause in light of its general purpose, which is to exclude coverage for en viron m ental pollution, and under such interpretation, the clause will not be applied to all contact with substances that m ay be classified as pollutants.” Id. at 135. 20 2 See Sm ith v. Reliance Ins. Co. of Illinois, 0 1-8 8 8 (La. App. 5 Cir. 1/ 15/ 0 2), 80 7 So. 2d 10 10 , 10 20 (“[I]n light of the recent pronoun cem ent by the Suprem e Court in Doerr and after consideration of the abovem ention ed factors, we con clude that the insurer in this case failed to m eet its burden of proving the applicability of Exclusion 10 of the policy, the total pollution exclusion . Addition ally, although the parties extensively dispute the applicability of the lim ited buy-back endorsem ent to this exclusion , we find it unnecessary to reach this issue based on our holding that Exclusion 10 does not unam biguously exclude coverage based on the facts alleged in this case.”). 20 3 Doerr, 774 So. 2d at 135. 35 exclusion, the insurer had no duty to defend because the exclusion unam biguously precluded coverage. 20 4 The court in Lodw ick addressed Doerr as “the sem in al case addressing pollution exclusions” and applied the Doerr factors using only the four corners of the plaintiffs’ petition for dam ages. 20 5 For exam ple, the court found that the insureds were “‘polluters’ under the Doerr test” because “[t]hroughout the plaintiffs’ petition for dam ages, all defendants . . . are alleged to be oil field operators an d producers.”20 6 The court also found that the substances that caused the plaintiffs’ injuries were “pollutants” within the m eaning of the total pollution exclusion because the plaintiffs “allege[d] that their property was contam inated by . . . [substances that] qualify as chem icals, contam inants, irritants, or waste under the various exclusions.”20 7 The court concluded that “[p]laintiffs’ allegations m ake it clear that all three Doerr factors are m et.”20 8 The court thus found that the pollution exclusion in the policies at issue did unam biguously exclude coverage and granted sum m ary judgm ent declaring that the insurers had no duty to defend. 20 9 In Sm ith v. Reliance Insurance Com pany of Illinois, 210 the plaintiffs alleged that the release of noxious odors carried by the wind to the plaintiffs’ hom es and properties caused their dam ages. 211 Before the Sm ith court was a m otion for partial sum m ary judgm ent on the insurer’s duty to defend. 212 When ruling on the m otion, the court used 20 4 Lodw ick, L.L.C. v. Chev ron U.S.A., Inc., 48,312 (La. App. 2 Cir. 10 / 2/ 13), 126 So. 3d 544, w rit denied, 20 13-2898 (La. 2/ 28/ 14), 134 So. 3d 1176. The plaintiffs in Lodw ick alleged that the activities of n earby oil and gas operators “caused pollution dam ages on or adjacent to their property.” Id. at 547. 20 5 Lodw ick, 126 So. 3d at 560 . Hanover incorrectly argues that the court in Lodw ick “not[ed] that Doerr did not apply.” R. Doc. 228 -1 at 16. 20 6 Lodw ick, 126 So. 3d at 561. 20 7 Id. 20 8 Id. 20 9 Id. 210 Sm ith v. Reliance Ins. Co. of Illinois, 0 1-8 88 (La. App. 5 Cir. 1/ 15/ 0 2), 80 7 So. 2d 10 10 , 10 20 . 211 Id. at 10 13. 212 Id. 36 the eight-corners rule and exam ined a pollution exclusion with a buyback endorsem ent sim ilar to the exclusion and endorsem ent currently before this Court as well as the allegations contained in the plaintiff’s petition. 213 The court applied the Doerr factors based on the facts alleged in the petition and concluded that the insurer “failed to m eet its burden of proving the applicability” of the pollution exclusion. 214 The court explained that, “although the parties exten sively dispute[d] the applicability of the lim ited buy-back endorsem ent to th[e] exclusion,” it was unnecessary to reach the issue of whether the buyback endorsem ent applied because the court found the exclusion itself did not unam biguously exclude coverage given the Doerr analysis. 215 The court affirm ed the judgm ent of the trial court, which found that the insurer had a duty to defend. 216 To apply the Doerr factors in this case, the Court m ust first determ ine whether the insured is a “polluter” within the m eaning of the exclusion, using the eight corners of the petitions and the policies. The Doerr court described this issue as a fact-based determ ination for which courts should consider “the nature of the insured’s business, whether that type of business presents a risk of pollution, whether the insured has a separate policy covering the disputed claim , whether the insured should have known from a read of the exclusion that a separate policy covering pollution dam ages would be necessary for the insured’s business, who the insurer typically insures, any other claim s m ade under the policy, and any other factor the trier of fact deem s relevant to this conclusion.”217 Hanover is unable to establish from the eight corners that Masse is a 213 Id. at 10 19– 20 . See also id. at 10 15 (explainin g that the insurer’s duty to defend “is determ in ed by the allegations of the plaintiff’s petition with the insurer being obligated to furnish a defense unless the petition unam biguously excludes coverage”). 214 Id. at 10 20 . 215 Id. 216 Id. at 10 13. 217 Doerr, 774 So. 2d at 135. 37 “polluter” within the m eaning of the exclusion. For exam ple, Hanover is unable to point to any inform ation within the eight corners regarding the nature of Masse’s business, whether that type of business presents a risk of pollution, and whether Masse has a separate pollution policy. Accordingly, the Court is unable to conclude that Masse is a “polluter” within the m eaning of the exclusion. Second, the Court m ust determ ine whether the injury-causing substance is a “pollutant” within the m eaning of the exclusion. The Court should consider “the nature of the injury-causing substance, its typical usage, the quantity of the discharge, whether the substance was being used for its intended purpose when the injury took place, whether the substance is one that would be viewed as a pollutant as the term is gen erally understood, and any other factor the trier of fact deem s relevant to that conclusion.”218 Hanover is unable to establish from the eight corners that the substances the State-Court Lawsuit plaintiffs allege caused their personal injuries and property dam age are “pollutants” within the m eaning of the exclusion such that the exclusion unam biguously precludes coverage. In the Adam s and St. Pierre petitions for dam ages, the plaintiffs broadly describe the substances causing their injuries. The Adam s plaintiffs, for exam ple, allege that “silica dust and other harm ful products”219 and “dangerous byproduct”220 caused their injuries. The St. Pierre plaintiffs allege that “hazardous substances, including, but not lim ited to, paint, sand and silica” caused their injuries. 221 The Court is unable to determ ine the nature of the injury-causing substances, their typical usages, the quantity of any discharges, whether the substances were being used for their intended 218 Id. R. Doc. 228-4 at 3 (em phasis added). 220 Id. at 13. 221 R. Doc. 228-5 at 1. 219 38 purpose when the injury took place, or whether the substances are ones that would be viewed as pollutants as the term is generally understood. The Court reiterates that “any am biguity should be interpreted in favor of the insured.”222 Hanover has failed to establish that the injury-causing substance is a “pollutant” within the m eaning of the exclusion. Finally, the Court must consider whether there was a “discharge, dispersal, seepage, m igration, release or escape” of a pollutant by the insured within the m eaning of the policy, a fact-based determ in ation. 223 The Court “should consider whether the pollutant was intentionally or negligently discharged, the am ount of the injury-causing substance discharged, whether the actions of the alleged polluter were active or passive, and any other factor the trier of fact deem s relevant.”224 The Court is unable to determ ine from the eight corners whether a pollutant was intentionally or negligently discharged, the am ount of the injury-causing substance discharged, or whether the actions of the alleged polluter were active or passive. Hanover has failed to establish that there was a discharge, dispersal, seepage, m igration, release or escape of a pollutant by the insured within the m eaning of the policy. Because Hanover has failed to establish that Masse is a polluter, that the substance or substances to which the plaintiffs were exposed were pollutants, or that there was a discharge within the m eaning of the policies, Hanover has failed to establish that the pollution exclusion unam biguously precludes coverage. Therefore, the Court need not reach the issue of whether Masse m et the tim e-elem ent conditions necessary to establish 222 Doerr, 774 So. 2d at 125. Id. at 135. 224 Id. at 136. 223 39 the exception to the pollution exclusion. 225 Hanover’s m otion for sum m ary judgm ent on its duty to defend is denied. The Court notes that Hanover argues Doerr does not apply to this case because the exclusion in Hanover’s policies is not a total pollution exclusion as was the provision exam ined by the court in Doerr. 226 Hanover cites Bridger Lake, LLC v. Seneca Insurance Com pany , Inc. in support of its position, but this case is distinguishable from the m atter before the Court. 227 In Bridger Lake, the Western District of Louisiana found that the pollution exclusion for dam age “arising out of the actual, alleged or threatened discharge, dispersal, seepage, m igration, release or escape of ‘pollutants’” applied to a case in which a crude oil pipelin e ruptured, causing the release of m ore than 3,0 0 0 barrels of crude oil into the environm ent. 228 The court, however, applied Wyom ing law and thus was not bound by, and did not consider, the Louisiana Suprem e Court’s decision in Doerr. 229 CON CLU SION IT IS ORD ERED that Hanover’s m otion for partial sum m ary judgm ent is D EN IED . N e w Orle a n s , Lo u is ian a, th is 3 1s t d ay o f March , 2 0 16 . ___________________ _________ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 225 See Sm ith, 80 7 So. 2d at 10 20 (“[I]n light of the recent pronouncem ent by the Suprem e Court in Doerr and after consideration of the above-m ention ed factors, we conclude that the insurer in this case failed to m eet its burden of proving the applicability of Exclusion 10 of the policy, the total pollution exclusion. . . . Additionally, although the parties extensively dispute the applicability of the lim ited buy-back endorsem ent to this exclusion, we find it unnecessary to reach this issue based on our holding that Exclusion 10 does not unam biguously exclude coverage based on the facts alleged in this case.”). 226 R. Doc. 228-1 at 16– 18. 227 Bridger Lake, LLC v . Seneca Ins. Co., No. 11-0 342, 20 13 WL 2458758 (W.D. La. J une 6, 20 13). 228 Id. at *5. 229 See id. Hanover also cites Lodw ick, but as explained supra, Lodw ick indeed applied the Doerr factors when considering a m otion for sum m ary judgm ent on the duty to defend. 40

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