Use this button to switch between dark and light mode.

Experience a New Era in Legal Research with Free Access to Lexis+

Burt Rigid Box v. Travelers Prop. Cas. Corp.

Burt Rigid Box v. Travelers Prop. Cas. Corp.

United States Court of Appeals for the Second Circuit

May 14, 2002, Argued ; August 16, 2002, Decided

Docket Nos. 01-7230(L), 01-7649(XAP)

Opinion

 [*85]  JOSE A. CABRANES, Circuit Judge:

Burt Rigid Box, Inc., a manufacturer of boxes and other containers, brought this action seeking a declaration that Travelers Casualty and Surety Company (formerly known as Aetna Casualty and Surety Company) 1 was obligated to provide insurance coverage under certain lost insurance policies issued to Burt's former parent company. Burt sought coverage related to claims brought against it for alleged improper disposal of toxic waste in the 1960s and early 1970s at four sites near Buffalo, New York: the Pfohl Brothers Landfill, the Booth Oil Landfill, the Sleepy Hollow campground, and the Alltift Realty Landfill.

 [**4]  In a comprehensive Decision and Order dated January 26, 2001, the United States District Court for the Western District of New York (Leslie G. Foschio, Magistrate Judge) 2 granted in part and denied in  [*86]  part cross-motions for summary judgment, thus disposing of all the parties' claims. See  Burt Rigid Box Inc. v. Travelers Prop. Cas. Corp., 126 F. Supp. 2d 596 (W.D.N.Y. 2001). Specifically, the District Court held, inter alia, that (1) Burt was entitled to summary judgment on the issue of the existence and terms of the policies because it had adduced sufficient unopposed evidence to establish these facts by a preponderance of the evidence; (2) Burt's notice of occurrence with respect to alleged contamination at the Pfohl and Sleepy Hollow sites was untimely, which untimeliness was not excused under the circumstances; (3) Aetna had not waived and was not estopped from asserting late notice defenses, except with respect to certain bodily injury claims for which it had failed to promptly disclaim coverage pursuant to section 3420(d) of the New York Insurance Law; and (4) Aetna was entitled to summary judgment as to certain claims which the undisputed evidence [**5]  showed were outside the coverage of the policies at issue.  Id. at 641. In a Supplemental Decision and Order dated April 24, 2001, the District Court granted Aetna's motion to amend the judgment to include all property damage claims related to the Pfohl site among those which Aetna was excused from defending because of Burt's late notice of occurrence. See  Burt Rigid Box Inc. v. Travelers Prop. Cas. Corp. No. 91-CV-303F, slip op. (W.D.N.Y. Apr. 24, 2001).

The parties now cross-appeal. Burt contends that the District Court erred in holding that its notice of the Pfohl site occurrence was untimely under the circumstances and that Aetna did not waive and was not estopped from asserting its late notice [**6]  defenses. Burt also argues that the District Court erred in considering evidence outside the four corners of the complaints filed against Burt to grant Aetna summary judgment on claims that are outside the scope of the coverage of the policies at issue. Aetna contends that the District Court erred in granting Burt summary judgment on the issue of the existence and terms of the policies by holding that Burt was required to prove those facts by a preponderance of the evidence, rather than by clear-and-convincing evidence. Aetna also argues that the District Court erred in holding that Aetna is required to defend certain bodily injury claims because (a) section 3420(d) of New York's Insurance Law is inapplicable inasmuch as the alleged injuries did not result from an "accident" within the meaning of that staute; and (b) even if section 3420(d) is applicable, (i) it was not required to disclaim because it claims that no insurance policy exists, (ii) its prompt disclaimers on grounds other than late notice were sufficient to preserve its right to later disclaim on the ground of late notice, and (iii) its disclaimers on the basis of late notice were timely under the circumstances.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

302 F.3d 83 *; 2002 U.S. App. LEXIS 16589 **; 33 ELR 20011; 59 Fed. R. Serv. 3d (Callaghan) 936

BURT RIGID BOX, INC., f/k/a F.N. Burt Company, Inc., Plaintiff-Appellant-Cross-Appellee, v. TRAVELERS PROPERTY CASUALTY CORP., f/k/a/ Aetna Casualty and Surety Company, Defendant-Appellee-Cross-Appellant,

Subsequent History:  [**1]  As Corrected September 9, 2002.

Prior History: Burt Rigid Box, Inc. brought this action seeking a declaration that Travelers Casualty and Surety Company (formerly known as Aetna Casualty and Surety Company) was obligated to provide insurance coverage under certain lost insurance policies issued to Burt's former parent company. In a comprehensive Decision and Order dated January 26, 2001, the United States District Court for the Western District of New York (Leslie G. Foschio, Magistrate Judge) granted in part and denied in part cross-motions for summary judgment, thus disposing of all the parties' claims. Specifically, the District Court held, inter alia, that (1) Burt was entitled to summary judgment on the issue of the existence and terms of the policies because it had adduced sufficient unopposed evidence to establish these facts by a preponderance of the evidence; (2) Burt's notice of occurrence with respect to certain claims was untimely, which untimeliness was not excused under the circumstances; (3) Aetna had not waived and was not estopped from asserting late notice defenses, except with respect to certain bodily injury claims for which it had failed to promptly disclaim coverage pursuant to section 3420(d) of the New York Insurance Law [**2]  ; and (4) Aetna was entitled to summary judgment as to certain claims which the undisputed evidence showed were outside the coverage of the policies at issue.

We hold that (1) even if an insured is required to prove the existence and terms of a lost insurance policy by clear-and-convincing evidence, Burt is nevertheless entitled to summary judgment on the issue of the existence and terms of the policies in this case because it has adduced sufficient unopposed evidence to meet that standard; (2) Aetna waived its late notice defenses by failing to include them among a series of affirmative defenses in its Answer, which contained its disclaimers of coverage based on other provisions of the polices; and (3) the District Court did not abuse its discretion or otherwise err in granting summary judgment to Aetna as to certain claims which the undisputed evidence showed were outside the coverage of the policies at issue.

 Burt Rigid Box Inc. v. Travelers Prop. Cas. Corp., 126 F. Supp. 2d 596, 2001 U.S. Dist. LEXIS 803 (W.D.N.Y. 2001).

Disposition: Affirmed in part and reversed in part.

CORE TERMS

district court, coverage, policies, insured, site, disclaim, late notice, summary judgment, notice, occurrence, insurance policy, waived, untimely notice, circumstances, parties, terms of the policy, hazardous waste, environmental, asserting, diligence, contends, untimely, terms, bodily injury, lawsuits, notified, carrier, defenses, argues, obligated to provide

Insurance Law, Commercial General Liability Insurance, Obligations of Parties, General Overview, Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment, Appellate Review, Standards of Review, Entitlement as Matter of Law, Genuine Disputes, Materiality of Facts, Opposing Materials, Judgments, Motions for Summary Judgment, Burdens of Proof, Supporting Materials, Substantial Evidence, Sufficiency of Evidence, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Choice of Law, Coverage, Evidence, Types of Evidence, Documentary Evidence, Best Evidence Rule, Policy Interpretation, Parol Evidence, Judicial Officers, Judges, Discretionary Powers, Procedural Matters, Preliminary Questions, Admissibility of Evidence, Abuse of Discretion, Criminal Law & Procedure, Abuse of Discretion, Evidence, Admissibility, Rulings on Evidence, Claim, Contract & Practice Issues, Estoppel & Waiver, Policy Coverage Issues, Liability & Performance Standards, Notice to Insurers, Good Faith & Fair Dealing, Duty to Defend, Business Insurance