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E. Concrete Materials, Inc. v. Ace Am. Ins. Co.

E. Concrete Materials, Inc. v. Ace Am. Ins. Co.

United States Court of Appeals for the Fifth Circuit

January 17, 2020, Filed

No. 18-11043

Opinion

 [*293]  EDITH H. JONES, Circuit Judge:

The issue raised here is whether an unplanned discharge of "rock fines," pellets produced during the course of quarry  [*294]  operations, is covered by a company's umbrella insurance policy or excluded by a pollution exclusion. Great American Insurance Company ("GAIC") sought a declaratory judgment that it is not required to defend or indemnify Eastern Concrete Materials, Inc. ("Eastern Concrete") because of a pollution exclusion in its insurance policy. [**2]  The federal district court denied Eastern Concrete's motion to dismiss for lack of personal jurisdiction and granted GAIC's motion for summary judgment. Eastern Concrete timely appealed. After careful review, we AFFIRM that federal jurisdiction exists and AFFIRM the district court's grant of summary judgment.

BACKGROUND

Eastern Concrete is a New Jersey corporation that operates rock quarries in New Jersey. It is a wholly-owned subsidiary of U.S. Concrete, a Delaware corporation with its principal place of business in Euless, Texas. Given the overlapping leadership between Eastern Concrete and U.S. Concrete, at least two of Eastern Concrete's officers—its president and secretary—live in Texas, where they also serve as officers for U.S. Concrete.

U.S. Concrete purchased a commercial umbrella insurance policy ("GAIC Policy") for itself and more than sixty subsidiaries, including Eastern Concrete, from GAIC, an Ohio Corporation. The GAIC Policy, which provides nationwide coverage to the named insureds, was negotiated, brokered, and issued in Texas. U.S. Concrete does not typically maintain insurance to cover environmental liabilities. True to form, the GAIC Policy includes an "absolute pollution [**3]  exclusion:"

This insurance does not apply to:

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948 F.3d 289 *; 2020 U.S. App. LEXIS 1680 **; 2020 WL 254822

EASTERN CONCRETE MATERIALS, INC., Plaintiff-Counter Claimant — Appellant v. ACE AMERICAN INSURANCE COMPANY, Defendant v. GREAT AMERICAN INSURANCE COMPANY, Counter Defendant — Appellee

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Texas.

Great Am. Ins. Co. v. Ace Am. Ins. Co., 325 F. Supp. 3d 719, 2018 U.S. Dist. LEXIS 114098 (N.D. Tex., July 10, 2018)Great Am. Ins. Co. v. ACE Am. Ins. Co., 2018 U.S. Dist. LEXIS 68022 (N.D. Tex., Apr. 20, 2018)

CORE TERMS

rock, fines, district court, contaminants, contacts, pollution exclusion, procure, coverage, personal jurisdiction, pollutants, insured, Creek, insurance policy, summary judgment, forum state, lawsuit, exercise of personal jurisdiction, insurance broker, waste material, allegations, nonresident, contends, irritant, courts, quarry, stream, stone

Civil Procedure, In Rem & Personal Jurisdiction, In Personam Actions, Challenges, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Due Process, Long Arm Jurisdiction, Minimum Contacts, Jurisdiction, In Personam Actions, Federal & State Interrelationships, Choice of Law, Forum & Place, Significant Relationships, Insurance Law, Choice of Law, Claim, Contract & Practice Issues, Policy Interpretation, Ordinary & Usual Meanings, Plain Language