Hanover Insurance Company v. Superior Labor Services, Inc. et al, No. 2:2011cv02375 - Document 347 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting State National's 242 Motion for Summary Judgment Finding No Duty to Defend Masse or Allied in the Underlying Adams Lawsuit and 244 Motion for Summary Judgment Finding No Duty to Defend Superior or Allied in the Underlying Adams Lawsuit AND denying State National's 243 Motion for Summary Judgment Finding No Duty to Defend Masse or Allied in the Underlying St. Pierre Lawsuit and 245 Motion for Summary Judgment Finding No Duty to Defend Superior or Allied in the Underlying St. Pierre Lawsuit, as stated herein. Signed by Judge Susie Morgan on 4/8/2016. (Reference: 11-2375, 14-1933) (tsf)

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Hanover Insurance Company v. Superior Labor Services, Inc. et al Doc. 347 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 : 11-2 3 75, 14 -19 3 3 ORD ER AN D REAS ON S Before the Court are four m otions for sum m ary judgm ent filed by State National Insurance Com pany regarding its duty to defend Superior and Masse as insureds and Allied as an additional insured under Superior’s and Masse’s policies. 1 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 1 R. Docs. 242, 243, 244, 245. Unless otherwise indicated, “R. Doc.” refers to record docum ents in the consolidated m atter, No. 11-2375. 2 The petitions for dam ages from each State-Court Lawsuit are attached to State National’s m otions for sum m ary judgm ent. See R. Docs. 242-7, 244-7 (Adam s Petition for Dam ages); R. Docs. 242-8, 244-8 (Adam s First Am ended Petition for Dam ages); R. Docs. 242-9, 244-9 (Adam s Second Am ended Petition for Dam ages); R. Docs. 242-10 , 244-10 (Adam s Third Am ended Petition for Dam ages); R. Docs. 242-11, 244-11 (Adam s Fourth Am ended Petition for Dam ages); R. Docs. 243-7, 245-7 (St. Pierre Petition for Dam ages). 3 See R. Docs. 242-7, 244-7, 243-7, 245-7. 1 Dockets.Justia.com suffering, m edical expenses, property dam age, and other dam ages as a result of their 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 insured status an d 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 4 See R. Docs. 242-7, 244-7, 243-7, 245-7. See R. Doc. 261-5. 6 See R. Docs. 244-12, 245-8 . 7 See R. Docs. 242-12, 242-13, 243-8, 243-9. 8 See R. Docs. 242-12, 242-13, 243-8, 243-9, 244-12, 245-8. 9 See R. Docs. 242-12, 242-13, 243-8, 243-9, 244-12, 245-8. 10 See R. Docs. 242-12, 242-13, 243-8, 243-9, 244-12, 245-8. See also R. Doc. 135 at ¶¶ 50 – 53. 11 See R. Doc. 242-10 , 244-10 . 12 R. Doc. 174-1 at 2. 5 2 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 1. N o. 11-2375 On Septem ber 21, 20 11, Hanover In surance 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 13 See R. Doc. 10 8. Hanover Ins. Co. v . Superior Labor Servs., Inc., et al., No. 11-2375. 15 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. 14 3 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 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, and other unidentified insuran ce 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 On March 8, 20 12, State National filed a crossclaim for declaratory judgm ent against Superior. 25 State National filed its first am ended crossclaim for declaratory judgm ent on Septem ber 27, 20 12. 26 State National filed a second am ended crossclaim for declaratory judgm ent on J anuary 14, 20 15, nam ing Allied as a defendant-in-crossclaim . 27 State National seeks judgm ent declaring that there is no coverage afforded to Superior under the State National policies issued to Superior and that State National has no duty to defend or indem nify Superior in the State-Court Lawsuits. 28 State National also seeks 21 R. Doc. 125. Id. at ¶ 79. 23 Id. at 9. 24 Id. 25 R. Doc. 29. 26 R. Doc. 67. 27 R. Doc. 135. 28 Id. at ¶ 19. 22 4 a declaration that the State National policies afford no coverage to Allied as a purported additional insured and that State National does not owe a duty to defend or indem n ify Allied in the State-Court Lawsuits. 29 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 indem nity in the State-Court Lawsuits. 30 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. 31 Arch seeks a declaration against Superior and Allied that Arch has no defense or indem nity obligation to Superior in the State-Court Lawsuits. 32 Arch also seeks recovery of the portion of defense costs already incurred by it on behalf of Superior. 33 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 in dem nity in the State-Court Lawsuits. 34 Arch also seeks a declaration of its rights 29 Id. No. 14-1930 , R. Doc. 1 at ¶ 3. 31 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. 32 Id. at ¶¶ 21, 47. 33 Id. at ¶ 47. 34 No. 14-1933, R. Doc. 1 at ¶ 3. 30 5 and responsibilities with respect to Allied’s request for additional assured status under the Masse policies and defense and in dem nity of Allied in the State-Court Lawsuits. 35 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. 36 On J anuary 14, 20 15, Hanover filed a com plaint in intervention in Case No. 141933 against Defendants Masse and Allied. 37 Hanover seeks judgm ent declaring that Hanover has no obligation to defend or indem nify Masse or Allied in the StateCourt Lawsuits. 38 State National Insurance Com pany (“State National”) also filed a petition for intervention for declaratory judgm ent on J anuary 14, 20 15. 39 State National issued two m arine gen eral liability policies to Masse that provided coverage from Novem ber 15, 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 . 40 Allied seeks additional insured status under the policies issued by State National to Masse. 41 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. 42 State National also seeks a declaration that “there is no coverage afforded to Allied under the [State National] policies as a 35 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. 36 Id. at ¶ 46. 37 R. Doc. 128. 38 Id. 39 R. Doc. 132. 40 Id. at ¶ 14. 41 Id. at ¶ 3. 42 Id. at ¶ 19. 6 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. 43 C. State National’s Motions for Sum m ary J udgm ent State National filed four m otions for sum mary judgm ent on Decem ber 1, 20 15, regarding its duty to defend Masse an d Superior as insureds and Allied as an additional insured under the policies issued to Masse and Superior. 44 The first m otion pertains to State National’s duty to defend Masse and Allied in the Adam s lawsuit. 45 State National argues it has no duty to defend Masse or Allied in Adam s under the policies. 46 State National argues in the alternative that, if the Court finds State National has a duty to defend Masse or Allied, the duty is subject to the rule of proration requiring allocation of defense costs based on the insurer’s tim e on the risk only. 47 The second m otion pertains to State National’s duty to defend Masse and Allied in the St. Pierre lawsuit. 48 State National argues it has no duty to defend Masse or Allied in St. Pierre under the policies. 49 State National argues in the alternative that, if the Court finds State National has a duty to defend Masse or Allied, the duty is subject to the rule of proration requiring allocation of defense costs based on the insurer’s tim e on the risk only. 50 The third m otion pertains to State National’s duty to defend Superior and Allied in the Adam s lawsuit. 51 State National argues it has no duty to defend Superior or Allied in 43 Id. R. Docs. 242, 243, 244, 245. 45 R. Doc. 242. 46 R. Doc. 242-1 at 23. 47 Id. The Court defers rulin g on whether the rule of proration applies. 48 R. Doc. 243. 49 Id. at 24. 50 Id. 51 R. Doc. 243. 44 7 Adam s under the policies. 52 State National argues in the alternative that, if the Court finds State National has a duty to defend Superior or Allied, the duty is subject to the rule of proration requiring allocation of defense costs based on the insurer’s tim e on the risk only. 53 The fourth m otion pertains to State National’s duty to defend Superior and Allied in the St. Pierre lawsuit. 54 State National argues that it has no duty to defend Superior or Allied in St. Pierre under the policies. 55 State National argues in the alternative that, if the Court finds State National has a duty to defend Superior or Allied, the duty is subject to the rule of proration requiring allocation of defense costs based on the insurer’s tim e on the risk only. 56 On Decem ber 8 , 20 15, Masse and Superior filed their respective oppositions. 57 Allied filed an opposition to the m otions on Decem ber 14, 20 15, adopting the oppositions filed by Masse and Superior. 58 State National filed a reply in support of its m otions for sum m ary judgm ent on Decem ber 15, 20 15. 59 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. 60 State National filed a response on March 1, 20 16, arguing that the deposition of Anthony Boudreaux has no bearing on the four pending m otions for sum m ary judgm ent. 61 52 Id. at 23. Id. 54 R. Doc. 245. 55 Id. at 23. 56 Id. 57 R. Doc. 258 (Masse’s Opposition); R. Doc. 261 (Superior’s Opposition). 58 R. Doc. 280 . 59 R. Doc. 295. 60 R. Doc. 312. 61 R. Doc. 319. 53 8 STATE N ATION AL’S IN TERVEN TION The Court m ust determ ine whether State National’s intervention in No. 14-1933 is perm issible under Rule 24. Rule 24(a) provides for intervention as of right, while Rule 24(b) provides for perm issive intervention. State National filed a supplem ental m em orandum on March 29, 20 16, arguing intervention is proper under both Rule 24(a) and Rule 24(b). 62 Masse argues the intervention is im proper. 63 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 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. 64 State National points to no federal statute giving it an unconditional right to intervene. “Absent a statute giving 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.”65 62 R. Doc. 335. R. Doc. 337. State National filed an ex parte m otion for leave to file a com plaint in intervention on J anuary 12, 20 15. R. Doc. 118 . Masse and Arch had no opposition to the intervention. R. Doc. 118 at 3. The Court granted the m otion for leave to intervene on J anuary 14, 20 15, R. Doc. 131, and State National filed its com plaint in intervention against Masse and Allied in No. 14-1933 on J anuary 14, 20 15. R. Doc. 132. 64 F ED . R. CIV. P. 24(a). 65 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). 63 9 To show it has an interest relating to the subject m atter of the m ain action, State National m ust dem onstrate it has “a direct, substantial, legally protectable interest in the action, m eaning ‘that the interest be one which the substantiv e law recognizes as belonging to or being owned by the applicant.’”66 State National argues that it has shown it has an interest relating to the subject m atter of the m ain action because it “asserts coverage defenses against Masse arising out of the sam e Adam s and St. Pierre underlying lawsuits for which Arch seeks to deny coverage.”67 State National argues, “[s]hould coverage be found under the [State National] policies, then [State National] has an interest in m aking sure coverage also exists under the Arch policies to support its argum ents on allocation or to subsequently pursue contribution and subrogation claim s against Arch and/ or potential reim bursem ent claim s against Arch and Masse.”68 State National 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.”69 State National’s purported interest is insufficient to establish an “interest” relating to the subject m atter of the m ain action under Rule 24(a). 70 State National 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 proceeding.”71 State National has failed to establish that its interest would be potentially im paired if the m ain action is resolved without it, as State National has not 66 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)). 67 R. Doc. 335 at 7. 68 Id. at 7– 8 . 69 Texas v. United States, 80 5 F.3d 653, 657 (5th Cir. 20 15). 70 See id. at 657– 60 . 71 Vallejo, 20 13 WL 391163, at *5. 10 dem onstrated that “the disposition of [the m ain] suit will . . . bar [State National] from asserting [its] rights in a separate action.”72 Because State National fails to dem onstrate at least two of the four prongs necessary to establish intervention of right, the Court finds State National 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. 73 “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.”74 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 courts have “broad discretion” in allowing intervention. 75 “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 origin al parties.’”76 The rule on perm issive intervention “should be liberally construed.”77 72 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.”). 73 F ED . R. CIV. P. 24(b)(1). 74 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). 75 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 . 76 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). 77 Moore v. Tangipahoa Parish Sch. Bd., 298 F. Supp. 288 , 292 (E.D. La. 1969). 11 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. 78 In Perlberg, Penn National issued a com m ercial general liability policy to the Perlbergs, defendants in an underlying personal injury lawsuit. 79 Penn National filed a federal declaratory judgm ent action against the Perlbergs, seeking a declaration that it owed no duty to defend or indem n ify the Perlbergs in the underlying lawsuit. 80 New Ham pshire, another in surer that provided a separate com m ercial general liability policy to the Perlbergs, had been defending the Perlbergs in the underlying lawsuit. 81 New Ham pshire filed a m otion to intervene in Penn National’s declaratory judgm ent action to protect its potential contribution rights. 82 The court granted the m otion to intervene, concluding that perm issive intervention under Rule 24(b) was appropriate. 83 The court explain ed that the 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. 84 The court also explained that the intervention would avoid a com peting suit in state court. 85 Several issues of law and fact in State National’s declaratory judgm ent action against Masse and Allied are com m on to those in Arch’s declaratory judgm ent action against those sam e entities. Both Arch and State National seek declaratory judgm ent that 78 Pennsy lvania N at. Mut. Cas. Ins. Co. v . Perlberg, 268 F.R.D. 218 , 226 (D. Md. 20 10 ). Id. at 220 . 80 Id. 81 Id. 82 Id. 83 Id. at 226. 84 Id. 85 Id. 79 12 they have no duty to defend or indem nify Masse or Allied in the State-Court Lawsuits. 86 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 State National are not identical, the m aterial factual disputes will m ost 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 State National’s declaratory judgm ent action in one proceedin g while allowing all parties to be heard. The Court finds the application of the approach taken by the court in Perlberg to this case 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. 87 The Court finds that judicial econom y will be served by allowing State National to intervene in this action and that allowing State National’s claim in intervention to proceed will not unduly delay or prejudice any parties. 88 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. Further, the issue of whether State National has a duty to defend Masse and Superior as 86 R. Doc. 132; No. 14-1933, R. Doc. 1. 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))). 88 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. 87 13 insureds and Allied as an additional in sured is fully briefed before this Court. State National’s claim in in tervention 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 on e would be hurt and greater justice could be attained.”89 C. Indepen dent Basis for J urisdiction State National m ust also establish an independent basis for jurisdiction to intervene in No. 14-1933. “It is well-established . . . that a party m ust have in dependent jurisdictional grounds to intervene perm issively under Rule 24(b).”90 State National avers that this Court has subject-m atter jurisdiction over its intervention pursuant to 28 U.S.C. § 1332(a). 91 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 . 92 The parties are com pletely diverse when “the citizen ship of each plaintiff is diverse from the citizenship of each defendant.”93 State National, Superior, and Allied are all 89 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). 90 Harris v. Am oco Prod. Co., 768 F.2d 669, 675 (5th Cir. 1985) (internal quotation m arks om itted). See also E.E.O.C. v . N at’l Children’s Ctr., Inc., 146 F.3d 10 42, 10 46 (D.C. Cir. 1998) (“The first requirem ent for perm issive intervention —an independent basis for jurisdiction—stem s not from any explicit lan guage in Rule 24(b), but rather from the basic principle that a court m ay not adjudicate claim s over which it lacks subject m atter jurisdiction.” (citin g F ED. R. CIV. P. 8 2)). 91 R. Doc. 132 at ¶ 6. 92 See 28 U.S.C. § 1332(a). 93 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). 14 corporations. 94 For purposes of diversity jurisdiction, a corporation is a citizen of (1) its state of incorporation , and (2) the state in which its prin cipal place of busin ess is located. 95 According to the com plaint in intervention, State National is a citizen of Texas, the state of its incorporation and the state in which its principal place of business is located. 96 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. 97 Defendant-in -interven tion Allied is a citizen of Louisiana, the state of its incorporation and the state in which its principal place of business is located. 98 Because neither defendant-in-intervention is a citizen of Texas, the state in which State National 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 invoking federal jurisdiction, State National bears the burden of establishing the am ount in controversy by a preponderance of the eviden ce. 99 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 0 If not, the Court m ay exam ine sum m ary judgm enttype evidence. 10 1 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 94 See R. Doc. 135. 28 U.S.C. § 1332(c)(1). 96 R. Doc. 132 at ¶ 4. 97 Id. at ¶ 5. 98 Id. 99 See Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 639 (5th Cir. 20 0 3). 10 0 See Hartford Ins. Grp. v. Lou-Con Inc., 293 F.3d 90 8, 910 (5th Cir. 20 0 2). 10 1 Id. 95 15 attorneys’ fees, penalties, statutory dam ages, and punitive dam ages.”10 2 As set forth in 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 State National’s derivative indem nity liability—could easily exceed $ 75,0 0 0 . When coupled with State National’s potential defense obligations, the Court concludes the am ount in controversy exceeded the jurisdictional am ount at the tim e this action was filed. 10 3 Therefore, the Court has an indepen dent basis for jurisdiction over State National’s com plaint in intervention pursuant to 28 U.S.C. § 1332(a). CON SID ERATION OF D ECLARATORY JU D GMEN T ACTION S State National has intervened to assert a declaratory judgm ent action again st Masse an d 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. 10 4 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 dism iss a com plaint for declaratory relief. 10 5 First, the Court m ust determ ine whether the 10 2 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. 10 3 J urisdictional facts are judged as of the tim e the com plaint is filed. St. Paul Reinsurance Co. Ltd., 134 F.3d 1250 , 1253 (5th Cir. 1998). 10 4 28 U.S.C. § 220 1. 10 5 Orix Credit All., Inc. v. W olfe, 212 F.3d 891, 895 (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). 16 action is justiciable. 10 6 Second, the Court m ust determ ine whether it has the authority to grant declaratory relief. 10 7 Third, the Court m ust determ ine “how to exercise its broad discretion to decide or dism iss a declaratory judgm ent action.”10 8 If State National’s claim s survive this analysis, the Court will then consider whether State National has a duty to defend 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. 10 9 In a declaratory judgm ent action, justiciability often turns on ripeness. 110 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.”111 The purpose of this doctrine is to forestall “entangl[em ent] . . . in abstract disagreem ents” through “avoidance of prem ature adjudication.”112 “The key considerations are ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’”113 The Fifth Circuit has recognized that “applying the ripeness doctrine in the declaratory judgm ent context presents a unique challenge.”114 This stem s prim arily from the fact that declaratory relief often involves an ex ante determ ination of rights, i.e., a 10 6 Id. Id. 10 8 Id. 10 9 Choice Inc. of Tex. v. Greenstein, 691 F.3d 710 , 714– 15 (5th Cir. 20 12). 110 See id; Orix, 212 F.3d at 895; Row an Cos., Inc. v. Griffin, 876 F.2d 26, 27– 28 (5th Cir. 198 9). 111 Reno v. Catholic Soc. Servs., Inc., 50 9 U.S. 43, 57 n.18 (1993). 112 Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). 113 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). 114 Orix, 212 F.3d at 8 96 (internal quotation m arks om itted). 10 7 17 determ ination of rights before an injury has occurred, that “exists in som e tension with traditional notions of ripeness.”115 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, 116 a duty-to-defend claim is ripe when the underlying suit is filed. 117 Accordingly, State National’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.”118 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 those involved in the federal case; and (3) the district court is prohibited from enjoining the state proceedings under the Anti-Injunction Act. 119 “The presen ce of all three factors m andates abstention. The want of any one factor defeats m andatory abstention.”120 115 Id. Suire v. Lafay ette City -Parish Consol. Gov’t, 90 7 So. 2d 37, 52 (La. 20 0 5). 117 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). 118 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. 119 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). 120 AIX Specialty Ins. Co. v. W . States Asset Mgm t., Inc., No. 12-4342, 20 13 WL 460 3775, at *2 (N.D. Tex. Aug. 29, 20 13). 116 18 On March 25, 20 16, the Court struck from the record Masse’s third-party com plaint and am ended third-party com plaint in which Masse n am ed several of its insurers, including State National. 121 Masse subsequently filed a third-party dem and in the State-Court Lawsuits against State Nation al and other insurers on March 28, 20 16. As a result, there is a state-court proceeding that involves som e of the sam e parties and issues currently before this Court. 122 State National’s intervention against Masse, however, has been pen ding since J anuary 20 15. 123 Thus, there was no “previously filed” cause of action in state court against State National at the tim e State National filed its intervention. Because all three factors have not been m et, the Court is not required to abstain from this m atter. 124 C. Discretion to Exercise J urisdiction The Court still m ust consider, in its discretion, whether to exercise jurisdiction over this m atter. “Since its inception, the Declaratory J udgm ent Act has been understood to confer on federal courts unique and substantial discretion in decidin g whether to declare the rights of litigants,” even when subject-m atter jurisdiction is otherwise proper. 125 In 121 R. Doc. 321 (Order); R. Doc. 130 (Third-Party Com plaint); R. Doc. 169 (Am ended Third-Party Com plaint). 122 Superior has not filed an action against State National in the State-Court Lawsuits. 123 R. Doc. 132. 124 Sealed v. Sealed, 33 F.3d 1379 (5th Cir. 1994) (“[W]e hold that the date at which appellee filed the declaratory action (J uly 6) is controlling as to the application of the m andatory abstention factors. Because appellant did not file its third-party dem and in the state court proceedin g until October 7, we find that there was no pendin g state court action addressing the sam e issue as that raised in the declaratory judgm ent and thus affirm the district court’s decision to reject m andatory abstention .”); St. Paul Fire & Marine Ins. Co., No. 94-253, 1994 WL 261935, at *2 (E.D. La. J une 3, 1994) (“St. Paul filed its com plaint for declaratory relief before the Lupins filed their third-party dem and against St. Paul in the state court action. Thus, this is not a case where the declaratory defendant has been first in raisin g the issue in state court against the declaratory plaintiff. Because the state court claim regarding coverage was not ‘previously filed’, the Court is not technically required to abstain from this case.”); Chevron U.S.A., Inc. v. Cureington, No. 10 -0 764, 20 11 WL 10 85661, at *6 (W.D. La. Feb. 18, 20 11), report and recom m endation adopted, No. 10 -0 764, 20 11 WL 10 44639 (W.D. La. Mar. 21, 20 11) (“[A]bstention is not required because [the plaintiff] filed the instant declaratory judgm ent action before the [defendants] com m enced their suit in state court.”). 125 W ilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). 19 W ilton v. Seven Falls Co., the Suprem e Court held that the discretionary standard of Brillhart v. Excess Ins. Co. of Am erica 126 governs a district court’s decision to stay a declaratory judgm ent action during the pendency of parallel state-court proceedings. 127 “Although Brillhart did not set out an exclusive list of factors governing the district court’s exercise of this discretion, it did provide som e useful guidance in that regard.”128 There are three overarching considerations in the Suprem e Court’s analysis in Brillhart: federalism , fairness, and efficiency. 129 “Despite the circuits’ different expressions of the Brillhart factors, each circuit’s form ulation addresses the sam e three aspects of the analysis.”130 The Fifth Circuit uses the Trejo factors to guide a district court’s exercise of discretion to accept or declin e jurisdiction over a declaratory judgm ent suit: (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; (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; an d 126 Brillhart v. Excess Ins. Co. of Am erica, 316 U.S. 491 (1942). W ilton v. Seven Falls Co., 515 U.S. 277, 284 (1995). 128 Id. at 28 2. 129 Sherw in-W illiam s, 343 F.3d at 390 . 130 Id. 127 20 (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. 131 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. 132 “If there is a pen ding related state proceeding but it is not ‘parallel’ because it does not involve all the sam e parties or issues, the federal district court properly considers the extent of sim ilarity between the pending state court and federal court cases in deciding which court should decide the dispute, rather than relying on a per se rule.”133 On March 28, 20 16, m ore than one year after State National filed its com plaint in intervention against Masse and Allied in federal court, Masse filed a third-party com plaint in the State-Court Lawsuits against State National and other insurers for declaratory judgm ent regarding the duty to defend and indem nify Masse. Whether State National has a duty to defend or indem nify Superior, however, is not before the state court; thus, the proceedings are not parallel with respect to those issues. Further, whereas the State-Court Lawsuits involve issues of fact, fault, and causation and num erous other parties, the determ in ation of whether State National has a duty to defend Masse, Superior, or Allied as an additional insured in volves a straightforward exam ination of the state-court petitions and the insurance policies State National issued to Masse an d 131 Sherw in-W illiam s, 343 F.3d at 388 , 390 . See id. at 393– 94. 133 See Sherw in-W illiam s, 343 F.3d at 394 n.5. 132 21 Superior. The issue of whether State National has a duty to defend Masse, Superior, or Allied under the policies State National issued to Masse and Superior has been fully briefed before this Court. Furtherm ore, the resolution of the State-Court Lawsuits, including Masse’s third-party claim against State National, will not determ ine State National’s duty to provide coverage to Superior, a determ ination this Court will have to m ake. The state and federal proceedings are clearly not parallel, as they do not involve all of the sam e parties and issues. 134 The extent of dissim ilarity between the state and federal cases convinces the Court that it should decide the dispute before it. 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 , 135 and the Adam s lawsuit was filed on Decem ber 28, 20 10 . 136 State National filed its crossclaim against Superior on March 8, 20 12, and filed its com plaint in intervention against Masse on J anuary 14, 20 15. 137 State National likely was aware that its insurance coverage of Superior and Masse would becom e an issue in the pending State-Court Lawsuits. Therefore, State National m ay have filed its crossclaim an d com plaint in intervention in anticipation of becom ing a party to the pending State-Court Lawsuits. 138 The second Trejo factor weighs against exercising jurisdiction. 139 134 Id. at 394 (finding that the lack of a pendin g parallel state proceedin g “weighs stron gly against dism issal”). 135 R. Doc. 228-5 at 3. 136 R. Doc. 228-4 at 5. 137 R. Doc. 132. 138 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). 139 See U.S. Fire, 20 15 WL 1416490 , at *4. 22 3. Forum Shopping That State National could have intervened and requested declaratory judgm ent in the State-Court Lawsuits does not necessarily dem onstrate forum shopping. 140 As a prelim inary m atter, there is no guarantee State National would have been allowed to intervene in the State-Court Lawsuits. 141 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. 142 “The record does not support a finding that [State National] engaged in im perm issible forum shopping by filing this declaratory judgm ent suit.”143 The third Trejo factor weighs in favor of exercising jurisdiction. 4. Inequities The Court cannot conceive of any inequities that flow from allowing State National to proceed in this action while the State-Court Lawsuits rem ain pen ding. 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. 144 The state courthouse for the 17th J udicial District Court for Lafourche Parish is approxim ately 60 m iles west of the federal 140 See id. LA. CODE CIV. P ROC. art. 10 91 (“A third person having an interest therein m ay interven e in a pending 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)). 142 See Sherw in-W illiam s, 343 F.3d at 399. 143 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 ). 144 See R. Docs. 228-5, 228-6. 141 See 23 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. 145 6. Judicial Econom y State National’s crossclaim s against Superior have been pending for m ore than four years, 146 and its crossclaim s against Allied have been pen ding for m ore than one year. 147 State National’s claim s in intervention against Masse have been pending for m ore than one year. 148 The issue of whether State National has a duty to defend Superior, Masse, or Allied as an additional insured in the State-Court Lawsuits has been fully briefed before this Court. It would be a waste of judicial resources to dism iss this action and require State National to refile in another forum . Exercising jurisdiction is clearly in the interest of judicial econom y. 149 This factor weighs in favor of exercising jurisdiction. 7. Interpretation of Decree from Parallel State Proceeding Although som e of the issues with respect to the duty to defend and provide coverage to Masse are before both the state court and this Court, there currently are no state-court rulings affecting this Court’s determ ination of whether State National has a duty to defend or indem nify Masse. Masse only recently filed its third-party dem and in 145 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). 146 R. Doc. 29. 147 R. Doc. 135. 148 R. Doc. 132. 149 See Ironshore, 624 F. App’x at 168 (findin g 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”). 24 state court on March 28, 20 16. Meanwhile, the issue of whether State National has a duty to defend or indem nify Masse has been pen ding before this Court for m ore than one year, and the parties have already fully briefed the issue of whether State National has a duty to defend Masse. More im portantly, the issue of whether State National owes Superior a duty to defend or indem nify is not at issue in state court, and the Court clearly will not need to interpret any decree issued in the State-Court Lawsuits with respect to Superior. The Court finds the seventh Trejo factor is neutral. 150 Four of the Trejo factors weigh in favor of exercising jurisdiction, while one weighs against and two are neutral. Accordingly, the Court will exercise jurisdiction over this m atter. 151 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. 152 A liability insurer’s duty to defend and the scope of its coverage are separate and distinct issues. 153 Under Louisiana law, an insurer’s duty to defend is broader than its obligation to indem nify for dam age claim s. 154 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 150 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. 151 Applyin g this sam e analysis to the declaratory judgm ent action filed by Hanover against Superior and State National (No. 11-2375) and to the declaratory judgm ent action filed by Arch against Masse and Allied (No. 14-1933) would result in the sam e conclusion . 152 Sher v. Lafay ette Ins. Co., 20 0 7-2441 (La. 4/ 8/ 0 8), 988 So. 2d 18 6, 192, on reh’g in part (J uly 7, 20 0 8 ). 153 Mossy Motors, Inc. v. Cam eras Am ., 20 0 4-0 726 (La. App. 4 Cir. 3/ 2/ 0 5), 8 98 So. 2d 60 2, 60 6, w rit denied, 20 0 5-1181 (La. 12/ 9/ 0 5), 916 So. 2d 10 57. 154 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. 25 and the “four corners” of the insurance policy to determ ine whether the insurer owes its insured a duty to defend. 155 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. 156 The duty to defend “arises when ever the pleadings again st the insured disclose even a possibility of liability under the policy.”157 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. 158 “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.”159 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. 160 Factual inquiries beyond the petition for dam ages and the relevant insurance policy are prohibited with respect to the duty to defend. 161 Any am biguities within the policy are resolved in favor of the insured to effect, not deny, coverage. 162 155 Mossy , 898 So. 2d at 60 6. Id. (citations om itted). 157 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). 158 Martco Ltd. P’ship v. W ellons, Inc., 588 F.3d 8 64, 872 (5th Cir. 20 0 9). 159 Treadw ay v. Vaughn, 633 So. 2d 626, 628 (La. Ct. App. 1993), w rit denied, 635 So. 2d 233 (La. 1994). 160 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. 161 Martco, 58 8 F.3d at 872. 162 Doerr v. Mobil Oil Corp., 20 0 0 -0 947 (La. 12/ 19/ 0 0 ), 774 So. 2d 119, 124. Hanover argues that “n either Allied nor Masse can sustain their burden of establishing” that the state-court plaintiffs’ bodily injuries or 156 26 B. The Policies State National issued two m arine general liability insurance policies to Masse: on e that provided coverage from Novem ber 15, 20 0 6, through Novem ber 15, 20 0 7, 163 an d another that provided coverage from Novem ber 15, 20 0 7, through Novem ber 15, 20 0 8 (collectively, “the Masse policies”). 164 State National issued two m arine general liability insurance policies to Superior: one that provided coverage from J uly 11, 20 0 7, through J uly 11, 20 0 8, 165 and another that provided coverage from J uly 11, 20 0 8, through J uly 11, 20 0 9 (collectively, “the Superior policies”). 166 1. General Liability The Masse policies and the Superior policies contain ed the following insuring agreem ent for bodily injury and property dam age liability: We 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 insuran ce applies. We will have the right and duty to defend the insured against any “suit” seeking those dam ages. However, we will have no duty to defend the insured against any ”suit” seeking dam ages for “bodily injury” or “property dam age” to which this insurance does not apply. 167 The policies define “suit” as “a civil proceeding in which dam ages because of ‘bodily injury’, ‘property dam age’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies are alleged.”168 The policies define “bodily injury” as “bodily injury, sickness or disease sustained by a person, in cluding death resulting from any of these at any tim e.”169 The policies provide the following definition of “property dam age”: “(a) Physical injury to 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. 163 R. Docs. 242-3, 242-4; R. Docs. 243-3, 243-4. 164 R. Docs. 242-5, 242-6; R. Docs. 243-5, 243-6. 165 R. Docs. 244-3, 244-4; R. Docs. 245-3, 245-4. 166 R. Docs. 244-5, 244-6; R. Docs. 245-5, 245-6. 167 R. Docs. 242-3 at 4, 242-5 at 4 (Masse policies); R. Docs. 244-3 at 7, 244-5 at 9 (Superior policies). 168 R. Docs. 242-3 at 16, 242-5 at 16 (Masse policies); R. Docs. 244-3 at 19, 244-5 at 21 (Superior policies). 169 R. Docs. 242-3 at 13, 242-5 at 13 (Masse policies); R. Docs. 244-3 at 16, 244-5 at 18 (Superior policies). 27 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.”170 The policies define “occurrence” as “an accident, including continuous or repeated exposure to substantially the sam e general harm ful conditions.”171 The policies further provide that they apply to bodily injury and property dam age only if the bodily in jury or property dam age “is caused by an occurrence which takes place during the policy period regardless [of] whether such occurrence is known to the insured” and the bodily injury or property dam age “first takes place during the policy period.”172 Under the policies, an y property dam age or bodily injury “arising from , caused by or contributed to by, or in consequen ce of an occurrence shall be deem ed to take place at the tim e of the first such dam age, . . . even though the occurrence causing such [b]odily [i]njury or [p]roperty [d]am age m ay be continuous or repeated exposure to substantially the sam e general harm .”173 2. Silicon, Silica, and Silicate Exclusion The Masse policies and the Superior policies contain the sam e exclusion for silica and silica-related dust: This insurance does not apply to: Silica Or Silica-Re late d D u s t a. “Bodily injury” arising, in whole or in part, out of the actual, alleged, threatened or suspected inhalation of, or ingestion of, “silica” or “silica-related dust”. 170 R. Docs. 242-3 at 16, 242-5 at 16 (Masse policies); R. Docs. 244-3 at 19, 244-5 at 21 (Superior policies). Docs. 242-3 at 15, 242-5 at 15 (Masse policies); R. Docs. 244-3 at 18, 244-5 at 20 (Superior policies). 172 R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). 173 R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). 171 R. 28 b. “Property dam age” arising, in whole or in part, out of the actual, alleged, threatened or suspected contact with, exposure to, existence of, or presence of, “silica” or “silica-related dust”. c. Any loss, cost or expense arising, in whole or in part, out of the abating, testing for, m onitoring, cleaning up, rem oving, containing, treating, detoxifying, n eutralizing, rem ediatin g or disposing of, or in any way responding to or assessing the effects of, “silica” or “silicarelated dust”, by an y insured or by an y other person or entity. 174 The exclusion defines “silica” as “silicon dioxide (occurring in crystalline, am orphous and im pure form s), silica particles, silica dust or silica com pounds” and defines “silica-related dust” as “a m ixture or com bination of silica and other dust or particles.”175 3. Pollution Exclusion and Pollution Buy back Endorsem ent The policies issued to Masse and Superior also contain the sam e pollution exclusion and Pollution Buyback Endorsem ent. The pollution exclusion provides in relevant part: 2. This insurance does not apply to . . . f. Po llu tio n (1) “Bodily injury” or “property dam age” arising out of the actual, alleged or threatened discharge, dispersal, seepage, m igration, release or escape of pollutants: (a) At or from any prem ises, site or location which is or was at any tim e owned or occupied by[,] or rented or loaned to, any insured; (b) At or from any prem ises, site or location which is or was at any tim e used by or for an y insured or others for the handling, storage, disposal, processing or treatm ent of waste; (c) Which are or were at any tim e transported, handled, stored, treated, disposed of, or processed as waste by or for any insured or any person or organization for whom you m ay be legally responsible; or 174 175 R. Docs. 242-4 at 28, 242-6 at 21 (Masse policies); R. Docs. 244-4 at 26, 244-6 at 27 (Superior policies). R. Docs. 242-4 at 28, 242-6 at 21 (Masse policies); R. Docs. 244-4 at 26, 244-6 at 27 (Superior policies). 29 (d) At or from any prem ises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are perform ing operations: (i) If the pollutants are brought on or to the prem ises, site or location in connection with such operation s by such insured, contractor or subcontractor; or (ii) If the operations are to test for, m onitor, clean up, rem ove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants. 176 The exclusion defin es “pollutant” as “any solid, liquid, gaseous or therm al irritant or contam inant, including sm oke, vapor, soot, fum es, acids, alkalis, chem icals and waste.”177 The Pollution Buyback Endorsem ent contained in the Masse and Superior policies provide in relevant part: Notwithstanding any Pollution Exclusion attached to this policy, the exclusion(s) shall not apply provided that the insured establishes that all of the following conditions have been m et: A. The “occurrence” was accidental and was neither expected nor intended by the Insured. An accident shall not be considered unintended or unexpected unless caused by som e intervening event neither expected nor inten ded by the Insured. B. The “occurrence” can be identified as com m encing at a specific tim e and date during the term of this policy. C. The “occurrence” becam e known to the Insured within 72 hours after its com m encem ent and is reported to the Com pany within 21 days thereafter. D. The “occurrence” did not result from the Insured’s intentional and willful violation of any governm ent statute, rule or regulation. 178 176 R. Docs. 242-3 at 4– 5, 242-5 at 4– 5 (Masse policies); R. Docs. 244-3 at 7– 8 , 244-5 at 9– 10 (Superior policies). 177 R. Docs. 242-3 at 6, 242-5 at 6 (Masse policies); R. Docs. 244-3 at 9, 244-5 at 11 (Superior policies). 178 R. Docs. 242-4 at 13, 242-6 at 8 (Masse policies); R. Docs. 244-4 at 13, 244-6 at 14 (Superior policies). 30 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 neighborhood that borders” Allied’s shipyard. 179 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 san dblasting from perm eating the neighborhood.”180 Allied’s alleged negligence has “expos[ed] the residents to dust containing silica sand, a very dangerous substance, as well as other toxic substances.”181 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. 182 In the plaintiffs’ third am ended petition for dam ages, the plaintiffs nam ed Masse as a defendant. 183 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.”184 In St. Pierre, et al. v. Allied Shipy ard, Inc., the plaintiffs allege they lived in a residence n ear Allied’s shipyard for approxim ately eight years preceding 20 10 . 185 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 179 R. Doc. 242-7 at 2. Id. at 3. 181 Id. 182 Id. at 3– 4. 183 R. Doc. 242-10 . 184 Id. at 4. 185 R. Doc. 243-7 at 2. 180 31 surrounding the shipyard of hazardous substances, including, but not lim ited to, paint, sand an d silica.”186 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.”187 D. State National Argues that Allied’s Third-Party Dem ands Against Masse and Superior Do Not Allege an “Occurrence” an d, Thus, Coverage is Unam biguously Excluded The State National policies apply to bodily injury and property dam age only if the bodily injury or property dam age “is caused by an occurrence which takes place during the policy period regardless [of] whether such occurrence is known to the insured.”188 The policies define “occurrence” as “an accident, including continuous or repeated exposure to substantially the sam e general harm ful conditions.”189 The policies do not define the term “accident.” Allied filed third-party dem ands against Masse and Superior in both the Adam s and St. Pierre lawsuits. State National argues that Allied’s third-party dem ands against Masse and Superior in the State-Court Lawsuits do not allege an “occurrence” within the m eaning of the policies because they do not allege an “accident” and, therefore, that coverage for Masse and Superior is unam biguously excluded. 190 In effect, State National is asking that the Court consider not only the petitions filed in Adam s and St. Pierre but also the third-party dem ands filed by Allied. In Louisiana, the issue of whether an insurer has a duty to defend is determ ined solely by the “‘four corners’ of the plaintiff’s petition 186 Id. Id. 188 R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). 189 R. Docs. 242-3 at 15, 242-5 at 15 (Masse policies); R. Docs. 244-3 at 18, 244-5 at 20 (Superior policies). 190 R. Doc. 243-1 at 11– 12; R. Doc. 245-1 at 11. 187 32 and the ‘four corners’ of [the insurance] policy.”191 State National has not cited any authority, and the Court is not aware of any, that provides that the Court m ay look beyond the “eight corners” of the petitions filed by the plaintiffs in Adam s and St. Pierre and the insurance policies issued by State National to determ ine whether State National owes a duty to defend. 192 State National’s argum ent that the third-party dem ands against Masse and Superior in the State-Court Lawsuits do not allege an “occurrence” within the m eaning of the policies pertains only to Allied’s third-party dem ands. Because the Court cannot consider Allied’s third-party dem ands, State National’s argum ent fails. E. State National Argues the Policies’ Silica or Silica-Related Dust Exclusion Unam biguously Excludes Coverage State National argues that the eight corners of the petition and the silica or silicarelated dust exclusion included in its policies taken together unam biguously bar coverage for any liability of the state-court plaintiffs’ injuries. 193 The silica or silica-related dust exclusion contained in the Masse policies and the Superior policies precludes coverage for bodily injury “arising, in whole or in part, out of the actual, alleged, threatened, or suspected in halation of, or ingestion of, ‘silica’ or ‘silicarelated dust’” and for property dam age “arising, in whole or in part, out of the actual, alleged, threatened, or suspected contact with, exposure to, existence of, or presence of, ‘silica’ or ‘silica-related dust.’”194 191 Mossy Motors, 898 So. 2d at 60 6. See R. Doc. 243 and 245. In a supplem ental m em orandum on the application of the “eight-corn ers rule,” State National argued as follows: “In determ inin g whether an insurer owes a duty to defend, Louisiana utilizes the eight corn ers rule, ‘which m eans that the court m ust look at the four corners of the petition and the four corners of the policy in question.’ Louisiana law is absolutely unequivocal on this issue. Whether the insurer owes a duty to defend ‘is d e t e r m in e d s o le ly fr o m t h e p la in t iff’s p le a d in g s and the face of the policy, without consideration of extraneous evidence.” R. Doc. 336 at 1– 2 (em phasis in original) (citations om itted). 193 R. Doc. 242-1 at 12– 15; R. Doc. 243-1 at 12– 15; R. Doc. 244-1 at 12– 15; R. Doc. 245-1 at 11– 14. 194 R. Docs. 242-4 at 28, 242-6 at 21 (Masse policies); R. Docs. 244-4 at 26, 244-6 at 27 (Superior policies). 192 33 In their original petition for dam ages, the Adam s plaintiffs allege that they have been exposed to “silica sand . . . as well as other toxic substances”195 and “silica dust and other harm ful products.”196 The plaintiffs allege that, as a result of Allied’s operations, the plaintiffs “have been exposed and m ade ill by in halation of the silica dust.”197 The plaintiffs’ third am en ded 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.”198 The plaintiffs unam biguously allege their personal injuries and property dam age were caused at least in part by silica dust. Therefore, based on the four corners of the Adam s petition for dam ages and the four corners of the silica or silica-related dust exclusion contained in the policies issued to Superior and Masse, which together unam biguously bar coverage for dam ages arising “in whole or in part” out of inhalation of or exposure to silica or silica-related dust, 199 the Court finds coverage for the bodily injury and property dam age the Adam s plaintiffs allege is unam biguously excluded by the policies. As a result, State National has no duty to defend Masse, Superior, or Allied as an additional insured in the Adam s lawsuit. 20 0 The St. Pierre plaintiffs allege that Allied’s operations “resulted in the release into the atm osphere and environm ent in the n eighborhoods surrounding the shipyard of hazardous substances, including, but not lim ited to, paint, sand and silica.”20 1 The St. 195 R. Doc. 242-7 at 3. Id. at 4. 197 Id. at 3. 198 R. Doc. 242-10 at 4. 199 R. Docs. 242-4 at 28, 242-6 at 21 (Masse policies); R. Docs. 244-4 at 26, 244-6 at 27 (Superior policies). 20 0 There is no n eed for the Court to analyze the other argum ents of State National regarding its duty to defend Masse, Superior, or Allied in the Adam s lawsuit. 20 1 R. Doc. 243-7 at 2. 196 34 Pierre plaintiffs allege that they were “exposed to these substances and have suffered personal injury . . . and other dam ages.”20 2 The plaintiffs, however, never specify which substances caused their injuries. The petition alleges as follows: “The Defendant owed a duty of care to the plaintiffs and breached that duty of care by releasing hazardous substances into the neighborhood environm ent. This breach is the legal cause of the harm suffered by the plaintiffs and entitles plaintiffs to dam ages.”20 3 Thus, it is not unam biguously clear that silica or silica-related dust caused the St. Pierre plaintiffs’ dam ages in whole or in part. Considering the four corners St. Pierre petition for dam ages and the four corners of the exclusion found in the policies, the Court does not find that the silica exclusion unam biguously bars coverage of the dam ages alleged in St. Pierre. F. State National Argues the Alleged Dam ages Occurred Prior to the Policy Periods and, Thus, Recovery is Unam biguously Excluded under the Policies The State National policies im pose on State National 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” to which the policies apply. 20 4 The policies further provide that they apply to bodily injury and property dam age only if the bodily injury or property dam age “is caused by an occurrence which takes place during the policy period regardless [of] whether such occurrence is known to the insured” and the bodily injury or property dam age “first takes place during the policy period.”20 5 The policies contain a socalled “Deem er Clause,” which states that any property dam age or bodily injury “arising from , caused by or contributed to by, or in consequence of an occurrence shall be deem ed to take place at the tim e of the first such dam age, . . . even though the occurren ce causing 20 2 Id. at 3. Id. 20 4 See R. Docs. 242-3 at 4, 242-5 at 4 (Masse policies); R. Docs. 244-3 at 7, 244-5 at 9 (Superior policies). 20 5 R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). 20 3 35 such [b]odily [i]njury or [p]roperty [d]am age m ay be continuous or repeated exposure to substantially the sam e general harm .”20 6 State National argues that the policies State National issued to Masse and Superior “were not the policies on the risk at the tim e of the first injurious exposure, [and] therefore the [State National] policies do not provide coverage” to Masse an d Superior in St. Pierre. 20 7 The St. Pierre lawsuit was filed on Decem ber 8 , 20 10 . 20 8 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. 20 9 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 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. 210 They seek dam ages for physical and m ental pain and suffering, m edical expen ses, dam age to personal property. 211 State National argues that the Deem er Clause “m eans that all dam ages are deem ed to have occurred . . . at the tim e of the first injurious exposure.”212 This reading, however, m isinterprets the plain language of the clause. The Deem er Clause states that all property dam age or bodily injury, even if caused by “continuous or repeated exposure to substantially the sam e general harm ,” is “deem ed to take place at the tim e of the first such 20 6 R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). R. Doc. 243-1 at 9; R. Doc. 245-1 at 8 – 9. 20 8 See R. Doc. 243-7 at 4. 20 9 Id. at 2. 210 Id. 211 Id. at 3. 212 R. Doc. 243-1 at 9; R. Doc. 245-1 at 8 – 9. 20 7 36 dam age,”213 not the first tim e there was exposure to harm ful substances. The policies require only that the injury or dam ages first take place during the policy periods. 214 With respect to the cause of those injuries or dam ages, the policies provide only that the occurrence causing the alleged bodily injury or property dam age—in this case, the alleged exposure to harm ful substances—m ust “take[] place during the policy period.”215 A review of the petitions and the policies does not unam biguously preclude a finding that the “first such dam age” took place during the policy periods. The Masse policies provided coverage from Novem ber 15, 20 0 6, through Novem ber 15, 20 0 8. The Superior policies provided coverage from J uly 11, 20 0 7, through J uly 11, 20 0 9. Although the four corners of the St. Pierre petition state that the plaintiffs’ exposure began in 20 0 2, 216 it is not unam biguously clear when the bodily injury or property dam age first took place. For exam ple, the petitions do not state when the plain tiffs developed their alleged “personal in jur[ies]” and “health problem s.”217 “An insured’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy.”218 Therefore, the eight corners of the state-court petitions and the policies do 213 R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). 215 R. Docs. 242-4 at 3, 242-5 at 21 (Masse policies); R. Docs. 244-4 at 3, 244-6 at 3 (Superior policies). 216 To determ in e when property dam age or bodily injury “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. 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 during 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 den ied, 80 3 So. 2d 36 (La. 20 0 1). Thus, applying the exposure theory, the state-court plaintiffs’ bodily injuries and property dam age “occurred” “during the entire course of [the plaintiffs’] exposure.”216 Thus, “if the insurer’s policy period fell either at the inception or during the course of exposure, the insurer would be liable.” Id. 217 See R. Doc. 243-7; R. Doc. 245-7. 218 Steptore, 643 So. 2d at 1218. 214 37 not unam biguously preclude the possibility that the plaintiffs’ “first such dam age” took place during the State National policy periods. 219 G. State National Argues the Policies’ Pollution Exclusion and Pollution Buyback Endorsem ent Unam biguously Exclude Coverage State National further argues that the eight corners of the petitions an d the pollution exclusion and Pollution Buyback Endorsem ent found in its policies unam biguously preclude coverage. 220 The policies exclude coverage for “any ‘[b]odily injury’ or ‘property dam age’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, m igration, release or escape of pollutants.”221 The policies defin e “pollutants” as “any solid, liquid, gaseous or therm al irritant or contam inant, including sm oke, vapor, soot, fum es, acids, alkalis, chem icals and waste.”222 The insured m ay still be entitled to coverage, however, if it establishes the four conditions enum erated in the Pollution Buyback Endorsem ent. 223 The endorsem ent provides an exception to the total pollution exclusion contained in the policies. 224 State National m ust establish that the 219 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. . . .”). 220 R. Doc. 243-1 at 15– 20 ; R. Doc. 245-1 at 15– 20 . 221 R. Docs. 242-3 at 4– 5, 242-5 at 4– 5 (Masse policies); R. Docs. 244-3 at 7– 8, 244-5 at 9– 10 (Superior policies). 222 R. Docs. 242-3 at 6, 242-5 at 6 (Masse policies); R. Docs. 244-3 at 9, 244-5 at 11 (Superior policies). 223 R. Doc. 242-4 at 13 (“Notwithstandin g any Pollution Exclusion attached to this policy, the exclusion(s) shall not apply provided that the insured establishes that all of the followin g conditions have been m et . . . .”); R. Doc. 242-6 at 8 (sam e); R. Doc. 244-4 at 13 (sam e), 244-6 at 14 (sam e). 224 See R. Docs. 242-4 at 13, 242-6 at 8 (Masse policies); R. Docs. 244-4 at 13, 244-6 at 14 (Superior policies). 38 exclusion unam biguously precludes coverage before the Court m ay consider whether the tim e-elem ent conditions have been m et. 225 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 an y kind.”226 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.”227 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 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. 228 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 225 See Martco, 588 F.3d at 8 8 0 , 883– 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)). 226 Doerr, 774 So. 2d at 135. 227 Id. at 125. 228 Id. The exclusion in Doerr precluded coverage for bodily or personal injury, advertising in jury, 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. 39 tim e-elem ent conditions, or exceptions, contained in the endorsem ent are m et. 229 The Louisiana Suprem e Court expressly stated that these factors m ust be con sidered “in an y given case,”230 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 exclusion, the insurer had no duty to defend because the exclusion unam biguously precluded coverage. 231 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. 232 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 and producers.”233 The 229 See Sm ith v . Reliance Ins. Co. of Illinois, 0 1-88 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.”). 230 Doerr, 774 So. 2d at 135. 231 Lodw ick, L.L.C. v. Chevron 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. 232 Lodw ick, 126 So. 3d at 560 . 233 Id. at 561. 40 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.”234 The court concluded that “[p]laintiffs’ allegations m ake it clear that all three Doerr factors are m et.”235 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. 236 In Sm ith v. Reliance Insurance Com pany of Illinois, 237 the plaintiffs alleged that the release of noxious odors carried by the wind to the plaintiffs’ hom es and properties caused their dam ages. 238 Before the Sm ith court was a m otion for partial sum m ary judgm ent on the insurer’s duty to defend. 239 When ruling on the m otion, the court used 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. 240 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. 241 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 234 Id. Id. 236 Id. 237 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 . 238 Id. at 10 13. 239 Id. 240 Id. at 10 19– 20 . See also id. at 10 15 (explaining that the insurer’s duty to defend “is determ ined by the allegations of the plaintiff’s petition with the insurer being obligated to furnish a defense unless the petition unam biguously excludes coverage”). 241 Id. at 10 20 . 235 41 buyback endorsem ent applied because the court found the exclusion itself did not unam biguously exclude coverage given the Doerr analysis. 242 The court affirm ed the judgm ent of the trial court, which found that the insurer had a duty to defend. 243 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.”244 State National is unable to establish from the eight corners that either Superior or Masse is a “polluter” within the meaning of the exclusion. For exam ple, State National is unable to point to any inform ation within the eight corners regarding the nature of Superior’s or Masse’s business, whether that type of business presents a risk of pollution, and whether Superior or Masse has a separate pollution policy. Accordingly, the Court is unable to conclude that Superior and Masse are “polluters” within the m eaning of the exclusion contained in the policies. 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 242 Id. Id. at 10 13. 244 Doerr, 774 So. 2d at 135. 243 42 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.”245 State National is unable to establish from the eight corners that the substances the St. Pierre 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 St. Pierre petitions for dam ages, the plaintiffs broadly describe the substances causin g their injuries. The St. Pierre plaintiffs allege that they were exposed to “hazardous substances, including, but not lim ited to, paint, sand and silica.”246 The St. Pierre plaintiffs allege that Allied breached its “duty of care by releasing hazardous substances into the neighborhood environm ent, . . . [which] is the legal cause of the harm suffered by the plaintiffs.”247 The Court is unable to determ ine the nature of the injurycausing substances, their typical usages, the quantity of any discharges, whether the substances were being used for their inten ded 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.”248 State National has failed to establish that the injury-causing substance in St. Pierre 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. 249 The Court “should con sider whether the 245 Id. R. Doc. 243-7 at 2. 247 Id. at 3. 248 Doerr, 774 So. 2d at 125. 249 Id. at 135. 246 43 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 an y other factor the trier of fact deem s relevant.”250 The Court is unable to determ in e 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. State National 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 State National has failed to establish that Masse and Superior are polluters, that the substance or substances to which the St. Pierre plaintiffs were exposed were pollutants, or that there was a discharge within the m eaning of the policies, State National has failed to establish that the pollution exclusion unam biguously precludes coverage. Therefore, the Court need not reach the issue of whether Masse or Superior m et the tim e-elem ent conditions necessary to establish the exception to the pollution exclusion. 251 State National’s m otion for summ ary judgm ent on its duty to defend Superior, Masse, or Allied in the St. Pierre suit is denied. CON CLU SION IT IS ORD ERED that State National’s Motion for Sum m ary J udgm ent Finding No Duty to Defend Masse or Allied in the Underlying Adam s Lawsuit is GRAN TED . 252 250 Id. at 136. 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.”). 252 R. Doc. 242. 251 44 IT IS FU RTH ER ORD ERED that State National’s Motion for Sum m ary J udgm ent Finding No Duty to Defend Superior or Allied in the Underlying Adam s Lawsuit is GRAN TED . 253 IT IS FU RTH ER ORD ERED that State National’s Motion for Sum m ary J udgm ent Finding No Duty to Defend Masse or Allied in the Underlying St. Pierre Lawsuit is D EN IED . 254 IT IS FU RTH ER ORD ERED that State National’s Motion for Sum m ary J udgm ent Finding No Duty to Defend Superior or Allied in the Underlying St. Pierre Lawsuit is D EN IED . 255 N e w Orle a n s , Lo u is ian a, th is 8 th d ay o f Ap ril, 2 0 16 . ______________________ ______ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 253 R. Doc. 244. R. Doc. 243. 255 R. Doc. 245. 254 45

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