Dick Anderson Construction v. National Fire Insurance Company of Hartford, No. 2:2010cv00035 - Document 34 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 32 Findings and Recommendations,, 21 Motion for Summary Judgment filed by National Fire Insurance Company of Hartford, 26 Motion for Summary Judgment filed by Dick Anderson Construction. IT IS ORD ERED that Defendant's motion for summary judgment is DENIED and Pla motion for summary judgment is GRANTED. Dft has a duty to defend and indemnify Pla because the "Limited Pollution Coverage-Work Sites" endorsement provides coverage for the claims asserted. The Clerk of Court shall notify the parties of the entry of this Order and enter Judgment accordingly. Signed by Judge Richard F. Cebull on 3/22/2011. (ELL, )
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Dick Anderson Construction v. National Fire Insurance Company of Hartford Doc. 34 IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF BUTTE DIVISION •. f" Plaintiff, v. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Defendant. pn rlnA 22 1 13 DY - - DE?UTY DICK ANDERSON CONSTRUCTION, ) :'. ) ) Cause No. CV-IO-35-BU-RFC-CSO ) ) ) ) ) ) ) ) ) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE ---------------------) United States Magistrate Judge Carolyn Ostby has entered Findings and Recommendation (Doc, 32) with respect to the parties' cross-motions for summary judgment. Because Judge Ostby concludes that the sewage lift station at issue in this lawsuit is not a "waste facility" as defined in the CGL policy issued by Defendant, the "waste facility" exclusion to the "Limited Pollution Coverage-Work Sites" endorsement does not apply. Judge Ostby therefore recommends Plaintiffs motion (Doc. 26) be granted and Defendant's motion (Doc. 21) be denied. Since Defendant filed timely objections to the Findings and 1 Dockets.Justia.com Recommendation, the Court must make ade novo determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.c. § 63 6(b)( 1). For the following reasons, Defendant's objections are overruled. Defendant objects to Judge Ostby's conclusion that the sewage lift station at issue qualifies as "waste facility" triggering the exclusion from the Limited Pollution Coverage-Work Sites endorsement. In support ofthis argument, Defendant essentially restates arguments already rejected by Judge Ostby. Under Montana law, exclusions from coverage must be "strictly construed" against the insurer. Leibrand v National Farmers Union Prop. & Cas. Co., 898 P.2d 1220, 1221 (Mont. 1995). The EPA definition of wastewater lift stations, which both parties cited in their respective arguments, make clear the lift stations are "designed to move wastewater from lower to higher elevation through pipes." Accordingly, Judge Ostby properly concluded the purpose of a lift station is to transport wastewater. Further, the policy defines "waste facility" as a site to which "waste is delivered for storage, disposal, processing or treatment." Strictly construing the exclusion against Defendants, Judge Ostby correctly concluded that transportation is distinct from "storage, disposal, processing or treatment." Although not technically an objection to the Findings and Recommendations, Defendant argues that the only issue that has been decided is 2 the duty to defend and that whether or not it has a duty to indemnifY remains for decision. The parties, however, filed cross-motions for summary judgment-not partial summary judgment-seeking judgment as a matter of law as to whether Defendant has a duty to defend and indemnifY. Doc. 21, p. 2; Doc. 26, p. 2. Presented with that question, Judge Ostby expressly determined that the Limited Pollution Coverage-Work Site endorsement provides coverage for the claims asserted and Defendant "has a duty to defend and indemnifY." Doc. 32, p. 15. Similarly, Defendant notes that Plaintiff did not argue, and the magistrate judge did not find, that any pollution incident commenced during the policy period as required by the policy. But Defendant did not raise this issue either, despite being presented with a cross-motion for summary judgment expressly seeking judgment as a matter of law that it had a duty to defend and indemnifY. In response to the cross-motion, Defendant argued the applicability of the pollution exclusion and that the Limited Pollution Coverage endorsement did not apply because the lift station was "waste facility," but no mention was ever made of there being no coverage because there was no pollution incident during the policy period. If Defendant had other arguments in opposition to Plaintiffs motion, it should have made them. After a de novo review, the Court determines the Findings and 3 Recommendation of Magistrate Judge Ostby are well grounded in law and fact and adopts them in their entirety. Accordingly, IT IS HEREBY ORDERED that Defendant's motion for summary judgment (Doc. 21) is DENIED and PlaintifFs motion for summary judgment (Doc. 26) is GRANTED: Defendant has a duty to defend and indemnify Plaintiff because the "Limited Pollution Coverage-Work Sites" endorsement provides coverage for the claims asserted. The Clerk of Court shall notify the parties of the entry of this Order and enter Judgment accordingj DATED this 7 of March, 2011. 4