Garrison Southfield Park, L.L.C. v. Aspen Specialty Ins. Co.
2022 Ohio 709
| Ohio Ct. App. | 2022Background
- Closed Loop leased two Watkins Road properties from Garrison and processed cathode ray tubes (CRTs), generating leaded glass and alleged contamination; leases required Closed Loop to maintain pollution liability insurance and name Garrison as additional insured.
- Closed Loop obtained a claims-made Commercial General Liability & Environmental Exposure (GLEE) policy from Aspen covering 4/12/2015–4/12/2016; policy required claims or pollution-incident notice during the policy period and contained exclusions and retroactive-date provisions.
- Ohio EPA issued multiple notices to Closed Loop (2013–2016) finding hazardous-waste violations and speculative accumulation of CRT glass; Ohio EPA issued a 4/11/2016 notice of violation and referred enforcement to the Attorney General.
- Garrison sued Closed Loop in August 2015 and March 2016 alleging abandonment/contamination and seeking millions for cleanup; Garrison sent Aspen a notice and claim on May 6, 2016 (after the GLEE policy expired).
- Trial court granted Aspen summary judgment, finding Garrison failed to timely report under the claims-made policy, some alleged incidents predated the retroactive date, and the losses were not covered as a pollution incident; on appeal the Tenth District affirmed, disposing the case on the timeliness ground and rendering other issues moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Watkins Road contamination qualified as a "pollution incident" under Coverage 3A | Garrison: abandonment/spillage of CRTs and leaded glass is a pollution incident entitling it to cleanup-cost coverage | Aspen: coverage issue aside, claim was not timely under the claims-made policy; trial court also found no covered pollution incident | Appellate court did not reach merits; disposition turned on untimeliness and other issues rendered moot |
| Whether Coverage 3A exclusions (expected/intended conduct or material change in use) bar coverage | Garrison: exclusions do not apply to this cleanup claim | Aspen: exclusions apply because contamination arose from insured's operations or expected conduct | Moot on appeal because claim fails for untimely notice |
| Whether alleged incidents at 1655 Watkins Road commenced after the policy retroactive date | Garrison: incidents post-date retroactive date so are within coverage period | Aspen: some contamination was known earlier and predated retroactive date | Moot on appeal because timeliness dispositive |
| Whether Garrison timely notified Aspen under the claims-made GLEE policy | Garrison: claim only ripe with Ohio EPA's 4/11/2016 notice and May 6, 2016 notice to Aspen should be treated as timely; invokes Helberg/"eleventh-hour" principle | Aspen: Garrison knew of contamination in 2015 and by March 2016, so May 6 notice came after policy expiration and is untimely | Held for Aspen: Garrison knew of the claims before policy end; May 6, 2016 notice was untimely; summary judgment affirmed on timeliness ground |
Key Cases Cited
- United States v. Strip, 868 F.2d 181 (6th Cir. 1989) (distinguishes occurrence and claims-made policies)
- Helberg v. Natl. Union Fire Ins. Co., 102 Ohio App.3d 679 (6th Dist. 1995) (addresses "eleventh-hour" reporting and ambiguity when policies contain continuous-renewal language)
- Gearing v. Nationwide Ins. Co., 76 Ohio St.3d 34 (1996) (insurer's obligations depend on whether conduct falls within policy coverage)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (explains moving party's summary judgment burden under Ohio law)
- LRC Realty, Inc. v. B.E.B. Properties, 160 Ohio St.3d 218 (2020) (appellate de novo review of summary judgment)