MEMORANDUM-DECISION AND ORDER
New York State commenced this action in February, 1988, pursuant to the Comprehensive Environmental Response, Liability and Compensation Act of 1980 (“CERCLA”), various New York State environmental statutes, and state common law. The State alleges in pertinent part that between 1972 and 1986, defendants/third-party plaintiffs Abalene Pest Control Service (“Abalene”) and Walter T. Blank illegally caused hazardous contamination of certain land located in Saratoga County, New York. Abalene and Blank im-pleaded, among others, National Union Insurance Company and Capital Mutual Insurance Company (“Capital Mutual”), their respective insurance carriers, seeking a defense and indemnification from the State’s suit. Capital Mutual subsequently commenced a fourth-party action against, among others, New York Mutual Underwriters (“NYMU”), claiming that NYMU also provided Blank with insurance coverage during the periods of contamination and therefore should contribute to Capital Mutual’s defense and indemnification. This court has jurisdiction pursuant to 42 U.S.C. § 9618 (CERC-LA) and 28 U.S.C. § 1331 (federal question).
During the five years in which this case has been pending, the court has become quite familiar with the parties and their positions. The court has previously issued two lengthy decisions in this case and has adjudicated numerous other disputes, almost all of which related to the extent to which the insurers must defend Abalene and Blank.
See New York v. Blank,
No. 88-CV-163,
I. BACKGROUND
The court sets forth only those facts that are necessary for consideration of these motions; reference is made to prior decisions issued in this case for a more complete recitation of the facts. On October 10, 1991, this court rejected for the third time Capital Mutual’s argument that it has no duty to indemnify or defend Blank in the State’s underlying action. Capital Mutual had argued that it should be excused from the ease due to the existence of a “pollution exclusion clause” in Blank’s policy which excludes from coverage liability arising from occurrences of contamination.
1
This court rejected Capital Mutual’s
*701
arguments because the incidents alleged by the State rationally may be said to fall within the “sudden and accidental” exception to the pollution exclusion clause, thus invoking Capital Mutual’s duty to defend. The court further determined that Capital Mutual’s duty to indemnify must be determined at the trial on the merits, not during a summary judgment motion.
See generally Blank II,
Shortly after the court rendered its October 10, 1991 decision, Capital Mutual filed (with leave of the court) this fourth-party action against NYMU. Capital Mutual contends that NYMU had provided Blank with comprehensive insurance coverage from 1972 through 1975, time periods during which Blank allegedly contaminated the subject land. In fact, argues Capital Mutual, NYMU’s insurance policy provided Blank with coverage which was nearly identical to that provided by Capital Mutual. , In light of the apparently concurrent coverage and the fact that Blank had not sought indemnification or defense costs from NYMU, Capital Mutual commenced this fourth-party action, seeking contribution from NYMU for 50% of Capital Mutual’s indemnification costs and 50% of the costs that Capital Mutual incurs in defending Blank in the underlying action.
Capital Mutual now moves for summary judgment of the fourth-party action, as asserted against NYMU, on grounds that NYMU can present no evidence to refute Capital Mutual’s proof that NYMU issued insurance coverage to Blank during the relevant time periods and that the coverage applies to the State’s underlying claims. As mentioned above, none of the other fourth-party defendants are party to this motion. Capital Mutual acknowledges that its motion is made more difficult — -if not more intriguing — by both parties’ professed inability to locate the NYMU insurance policy that allegedly provided Blank the claimed coverage. NYMU contends that if that such a policy ever existed, then it would have been lost or destroyed pursuant to the company’s regular business practice. While acknowledging the absence of the subject policy, Capital Mutual argues that it nonetheless is able to rely upon circumstantial evidence to irrefutably prove the existence and terms of the coverage. Thus, contends Capital Mutual, it is entitled to summary judgment of the fourth-party action. NYMU cross-moves for summary judgment on grounds that the terms of any alleged policy would be such that NYMU would not be required to provide Blank with a defense or indemnification from the State’s claim, even if Capital Mutual were able to prove that coverage existed in the first place.
II. DISCUSSION
A. Capital Mutual’s motion for summary judgment
Capital Mutual’s inability to produce the alleged NYMU insurance policy does not by itself preclude it from prevailing on this motion. It is well settled that a party seeking recovery under an insurance policy need not produce the actual policy to prevail in a suit for coverage.
See, e.g., Boyce Thompson Inst. for Plant Research v. Insurance Co. of N. Am.,
1. Diligent Search
Even beforé presenting its circumstantial evidence to prove the terms of a missing policy, however, Capital Mutual must first satisfy the court that it has made a “ ‘diligent but unsuccessful search and inquiry’” for the missing document.
Burroughs Wellcome Co.,
Capital Mutual has clearly satisfied this threshold burden. Through the affidavits of its counsel, Alan J. Pierce, Capital Mutual has detailed the measures it took in searching for the NYMU policy (or policies) that covered Blank from 1972 through 1974. Specifically, counsel avers that he sent NYMU interrogatories, requests for document production, and requests for admissions, each of which revealed that the policies likely existed but that NYMU — the issuer of the policies — was itself unable to locate them. Pierce Aff. (2/12/93) ¶ 9. Notably, in response to two separate interrogatories NYMU asserted that “[i]f a policy was issued as alleged by [Capital Mutual], it would have been issued by NYMU and any copies of it which may have remained in NYMU’s possession would have been destroyed in the regular course of its business.” Id. ¶ 9(f) & exh. “4” at ¶¶ 7, 9. Capital Mutual’s counsel also attempted to contact the Ed Yates Insurance Agency, a Poughkeepsie, New York insurance agency that apparently issued the NYMU policy to Blank (see infra), in an effort to locate the missing policy. Pierce Aff. (2/12/93) ¶ 18. Counsel’s endeavors were fruitless, however, because the agency is no longer in existence and the telephone company has no information on an individual named Ed Yates in Poughkeepsie. See id. 2
This court is convinced that Capital Mutual has expended a good-faith, diligent effort to locate the alleged policies and that any policy that NYMU may have issued to Blank is lost or destroyed. It is difficult to fathom how Capital Mutual can be expected to produce a copy of a twenty year old policy when even the company that issued the policy does not have a copy. In any event, it is clear that the independent efforts undertaken by Capital Mutual to locate the missing NYMU policies were at least as thorough as those described in
Burroughs Wellcome Co.,
2. Existence and Terms of Policy
The court turns next to Capital Mutual’s evidence concerning the existence and terms of the alleged policy. Capital Mutual has proffered the affidavit of Serge A. Bervy, Sr., an insurance broker licensed to conduct business in New York State. Bervy attests that he served as Blank’s insurance broker from 1976 through 1987. Bervy Aff. (2/5/93) ¶ 3. While his affidavit might initially seem irrelevant — after all, he was not Blank’s broker during the years in which Blank, was allegedly covered by NYMU insurance— upon closer review it becomes clear that Ber-vy has some knowledge of Blank’s coverage from 1972 through 1975. Bervy has produced from his file a copy of a Declarations Page to a NYMU insurance policy held by Blank. Id. exh. “A”. The Declarations Page indicates that Blank and his spouse were the named insureds of a policy issued by NYMU and that the effective dates of the policy were from February 28,1972 through February 28,1975. Among the properties listed on the Declarations Page as being covered by the policy was the Saratoga County parcel that is the subject of this litigation. See id. Based upon his knowledge as an experienced insurance broker, Bervy asserts that a Declarations Page is an accurate indicator of the coverage provided in the corresponding policy. See id. According to Bervy, the only exception to this presumption of accuracy would arise when the coverage had been cancelled prior to the policy’s expiration date. Id. ¶ 6.
The Declarations Page, of course, speaks only to the existence of a policy; it provides no insight into the policy’s terms. To prove the terms of the policy, Capital Mutual relies upon NYMU’s concessions in its responses to interrogatories. In those responses, NYMU stated that “[i]f the insurance policy alleged by .[Capital Mutual] was issued, then it was issued by NYMU alone and without any participation of the other name fourth-party defendants.” Pierce Aff. (2/12/93) ¶¶ 9(c), (d) & exh. “5”. In addition, a sample policy provided by NYMU in response to Capital Mutual’s request for production of documents contains virtually the same pollution exclusion clause that appeared in Blank’s Capital Mutual policy. Significantly, NYMU does not contend that the exclusion clause in the policy it produced is distinguishable in any material respect from the exclusion contained in the Capital Mutual policy. NYMU’s concession as to the similarity between the two clauses is significant because, as mentioned above, this court has already construed that language as requiring insurers (including Capital Mutual) to defend and indemnify Blank in the State’s action.
See generally Blank II,
When considered altogether, Capital Mutual’s evidence establishes a prima-faeie ease showing that a policy existed and that the policy contained terms which require NYMU to defend and indemnify Blank in the State’s action. The Declarations Page shows that a NYMU policy existed from 1972 to 1975, and NYMU’s responses to Capital Mutual’s discovery demands show the terms of those policies. Combined, this evidence indicates that Capital Mutual has successfully dispatched its burden of establishing a prima facie case of the existence and terms of a governing insurance policy.
Cf. Union Fork & Hoe Co.,
With Capital Mutual having presented evidence to support a prima face ease showing of the existence and terms of the policy, the burden shifts to NYMU to show that a factual dispute exists as to Capital Mutual’s ability to prevail on the merits. In this regard, NYMU “must do more than simply show that there is some metaphysical doubt as to material facts.”
Matsushita
*704
Elec. Indus. Co. v. Zenith Radio Corp.,
The court has reviewed. NYMU’s opposition to Capital Mutual’s motion and concludes that NYMU has not carried its burden. Rather than present any evidence suggesting the existence of a factual dispute, NYMU chose instead to sit back and criticize the persuasiveness of Capital Mutual’s evidence. Stated in procedural terms, NYMU has offered no evidence indicating the presence of a genuine dispute as to the existence and terms of the policy. NYMU’s primary opposition to Capital Mutual’s motion is based upon one person’s speculation that Blank or NYMU
might
have cancelled the policy before its expiration, or that the Declarations Page
might
in some other respect be inaccurate. Wege Aff. (3/3/93) ¶ 8. In light of these suggestions, the court searched the record for some tangible evidence to support NYMU’s theories, but was simply unable to find any particular facts upon which a trier of fact could rely to support NYMU’s speculation. Having failed to present any evidence which arguably contradicts, or at least challenges, the accuracy of Capital Mutual’s case, NYMU cannot show the existence of a genuine factual dispute concerning the existence and terms of the policy.
Cf. Matsushita,
NYMU asserts that the evidence proffered by Capital Mutual would be inadmissible at trial and thus cannot support its motion for summary judgment. The argument runs that Capital Mutual’s evidence, primarily in the form of affidavits, is not based upon the affiants’ first-hand knowledge and therefore cannot be considered by the court in this motion.
See Chandler v. Coughlin,
*705 NYMU next argues that even if one were to assume that the policy existed and that the terms were identical to those alleged by Capital Mutual, summary judgment still would not be warranted because Blank is not eligible for coverage under these terms. 3 NYMU asserts three reasons why Blank would still be ineligible for coverage. Implicit in each of these arguments is NYMU’s presumption that if Blank is not eligible to receive coverage under the policy, then Capital Mutual cannot rely upon that policy to receive contribution. The court will discuss NYMU’s arguments seriatim.
(a) Pollution exclusion clause
The policy which NYMU issued to Blank contained what the parties agree to be a standard pollution exclusion clause. The clause essentially excludes from coverage all occurrences of environmental contamination except those which are “sudden and accidental.”
4
Pierce Aff. (2/12/93) exh. “5”. If the State’s underlying complaint alleges an occurrence that was sudden and accidental, then NYMU must provide Blank with a defense from that suit.
See, e.g., EAD Metallurgical, Inc. v. Aetna Cas. & Sur. Co.,
the duty to defend and the duty to indemnify are separate and distinct questions of law. The Insurers’ duty to defend arises solely on the basis of allegations set forth in the State’s complaint in the main action. So long as the claims alleged by the State rationally may be said to fall within the policy coverage, . the Insurers must come forward and defend; this is so even if the State’s allegations ultimately prove fruitless, thus absolving the Insurers of the duty to indemnify for damages.... [As] [t]his court noted in [Blank I,]
[t]o hold otherwise would be to inform insurance companies that their best course of action is to withhold payment for any defense costs, even in the fact of a court order, wait and see if they have any obligation to indemnify, and then claim that if there is no duty to indemnify, there could never have been any duty to defend. Such, in the opinion of the court, would be patently unfair.
NYMU contends that it has no duty to defend because the State’s complaint does not allege that contamination occurred suddenly and accidently; the State alleges only intentional contamination. Therefore, argues NYMU, it should not be required to defend Blank in the State action. As both parties are aware, this court has already spent considerable time reviewing the assertions in the State’s complaint, searching specifically for any allegation that the contamination may possible have occurred suddenly and acci-dently. The court has issued two lengthy decisions addressing this very issue, both times concluding that the complaint
does
allege the possibility that some of the contami
*706
nation was sudden and accidental.
See, e.g., Blank I,
Since CERCLA is a strict liability statute, the State need not limit its proof at trial to Abalene’s and Blank’s alleged intentional acts of contamination; a verdict against Abalene and Blank might be grounded in part upon evidence of accidental contamination. Based on its complaint, the State is seeking recovery for all contamination, regardless of intent. See Complaint at ¶ 10. By drafting its broad complaint, the State has left open the opportunity to present evidence at trial of unintentional contamination for which the Insurers would have a duty of indemnity. Since neither the Insurers nor this Court can guarantee that evidence of accidental contamination for which the' Insurers owe indemnity will not arise at trial, summary judgment is not warranted.
Blank II,
(b) Timely Notice and Forwarding of suit papers
NYMU next argues that it is not required to defend and indemnify Blank because Blank failed to give prompt written notice of the alleged occurrence as required by the policy.
See, e.g., Olin Corp. v. Insurance Co. of N. Am.,
By imposing upon Capital Mutual the policy’s procedural conditions, NYMU essentially treats this fourth-party suit as a subrogation action, with Capital Mutual acting as a subro-gee to Blank’s rights under the policy. NYMU’s implicit presumption that this is a subrogation suit is understandable, because in a subrogation action the insurer — here Capital Mutual — cannot recover unless the insured would have been able to recover had it brought the suit itself. The Second Circuit discussed the prerequisites to a subrogation suit in Gibbs v. Hawaiian Eugenia Corp., explaining:
Since the insurer-subrogee stands in the shoes of its insured, any defenses that are valid against the insured áre also applicable against the insurer. See Great Am. Ins. Co. v. United States,575 F.2d 1031 , 1034 (2d Cir.1978) (Subrogation “is an exclusively derivative remedy which depends upon the claim of the insured and is subject to whatever defenses the tortfeasor has against the insured.”); 16 [Couch on Insurance 2d § 61:212 (Rev.ed. 1983)]. Where the insured has no right of recovery, the insurer has no enforceable right of subrogation. See Federal Ins. Co. [v. Arthur Andersen & Co.], [75 N.Y.2d 366 ] [553 N.Y.S.2d 291 552 N.E.2d 870 (Ct.App. 1990) ].
Insofar as NYMU’s arguments are based upon principles that govern subro-gation suits, the court finds them to be without merit. NYMU’s subrogation-type argument is defeated by Capital Mutual’s unambiguous representation that it “is not suing as a subrogee of the rights of Walter Blank under [his] insurance policy. Rather, Capital Mutual is suing NYMU pursuant to its legal right to seek contribution from a co-insurer.” Pierce Reply Aff. (3/10/93) at 17. At oral argument, the court shared NYMU counsel’s concern over whether such a right to contribution — separate and apart from a suit for subrogation — actually exists. After all, one usually thinks of a right to contribution in the context of action between joint tortfea-sors, not insurers. Further research has revealed, however, that such a cause of action does indeed exist between co-insurers. ■ To be sure, it is well established in New York that “when several insurers cover the same risk and payment for the loss has been made by one, that carrier has a right to pro rata contribution from other insurers.”
Vigilant Ins. Co. v. Employers Ins. of Wausau,
Since its suit sounds in contribution and not subrogation, Capital Mutual is not bound by the formal claims requirements that Blank would have faced had he sought coverage under the policy. In so ruling, the court adopts the holding set forth by the New York Appellate Division in
Zurich American.
There, the insured similarly sought coverage from only one of its two insurance companies. In ruling that the second insurer must contribute to the coverage, the Appellate Division held that the paying insurer need not comply with the second insurer’s “formal request” requirement to trigger its right to contribution of defense costs.
(c) Apportionment of defense costs
Finally, NYMU urges that even if the court holds that Capital Mutual is entitled to contribution of defense costs, the costs should be equitably allocated ,so that the burden carried by each insurer bears some relation to the amount of time that it insured Blank vis-a-vis Blank’s entire insurance coverage. According to NYMU,
ordering the sharing of past and future defense costs on an equal sharing basis is inequitable. Sharing past defense costs with Capital Mutual on this basis would require NYMU to contribute to the defense costs incurred by Capital Mutual in the various “relitigations” of the pollution exclusion issue. To magnify the inequity of such an approach, this would mean that NYMU would have to contribute to the reimbursement of Capital Mutual for the sanctions imposed on Capital Mutual for unnecessary motion practice.
*708 More fundamentally, allocation of defense costs on an equal sharing basis means that NYMU would be reimbursing Capital Mutual for defense costs that might never have been necessary to incur had Capital Mutual prosecuted, perfected and successfully argued an appeal from this Court’s original decision and order on the pollution exclusion issue.
NYMU Mem. (3/3/93) at 16-17.
There are a number of flaws in NYMU’s argument. First and foremost, even NYMU concedes that “courts in New York and within the Second Circuit are now generally in agreement that defense costs should be divided equally among all of the insurers.”
Id.
at 16. In fact,' the Second Circuit rejected this very argument in
Federal Ins. Co. v. Cablevision Sys. Dev. Co.,
With respect to NYMU’s contention that its costs may have been lower had Capital Mutual successfully prosecuted an appeal from this court’s previous decisions on the pollution exclusion issue, the court finds this argument is wholly devoid of merit. As Capital Mutual correctly notes, those prior decisions were interlocutory orders and as such were not appealable absent the court’s certification of -the rulings pursuant to 28 U.S.C. § 1292(b) or Fed.R.Civ.P. 54(b). Certification of those decisions would have been inappropriate; the court would not have granted an application for such certification.
Cf. New York v. Amro Realty Corp.,
In1 short, the court is not swayed by NYMU’s argument that equity dictates an apportionment of defense costs other than by equal sharing. The arguments forwarded by NYMU would apply to any case in which multiple insurers provided coverage for the same event, and the Second Circuit and New York courts have already rejected those arguments.
See Federal Ins. Co.,
B. NYMU’s cross-motion
NYMU has cross-moved for summary judgment on grounds that even if the policy existed and its terms were exactly those proffered by Capital Mutual, NYMU would nonetheless be saved from contributing to the defense due to the presence of the pollution exclusion clause and because Blank, due to his failure to satisfy the formal claim requirements, is himself ineligible for coverage under the policy. As mentioned above, the court considered — and rejected — these arguments in opposition to Capital Mutual’s motion for summary judgment. See swpra pp. 706-08. The court relies upon the same rationale in finding that the arguments do not provide a basis for granting summary *709 judgment to NYMU. Accordingly, NYMU’s cross-motion for summary judgment of the fourth-party action is denied.
III. CONCLUSION
Capital Mutual’s motion for summary judgment of the fourth-party action as asserted against NYMU is granted, and NYMU’s cross-motion for summary judgment of the fourth-party action is denied. NYMU is ordered to pay Capital Mutual fifty percent (50%) of past defense expenditures incurred by Capital Mutual in defending Walter Blank in the underlying action, excluding expenditures incurred by Capital Mutual pursuant to the court’s October 9, 1991 order imposing sanctions pursuant to Fed.R.Civ.P. 11. New York NYMU is also ordered to pay Capital Mutual fifty percent (50%) of all future defense expenditures incurred by Capital Mutual in the continued defense of Walter Blank in this action.
IT IS SO ORDERED.
Notes
. The Capital Mutual policy contained the standard industry pollution exclusion clause, which states:
It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release, or escape of smoke, vapors, soot, fumes, acids, alkalies, *701 toxic chemicals, liquid or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
See Blank I,
. Counsel also represented to the court at oral argument that he inquired of Blank’s counsel as to the existence of an NYMU policy. Blank’s counsel apparently searched Blank's records and was unable to recover an NYMU policy. Of course, at that point Blank had no motivation to locate an NYMU policy, since this court had ruled by then that Blank was covered by Capital Mutual.
. As a technical matter, NYMU asserted this argument solely in support of its cross-motion for summary judgment, not in opposition to Capital Mutual's motion. As a practical matter, however, the argument, if valid, would also form a basis for defeating Capital Mutual’s motion. Therefore, the court will consider the argument as being asserted in opposition to Capital Mutual's motion, as well.
. NYMU's pollution exclusion clause is contained in an endorsement to the policy, and states;
It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse of body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
Pierce Aff. (2/12/93) exh. "5'' (section entitled "EXCLUSION (Contamination or Pollution)”).
. In that regard, counsel to NYMU should be cognizant of the fact that in Blank II this court issued sanctions pursuant to Fed.R.Civ.P. 11 based upon certain parties' impermissible attempt to relitigate their duty to defend. While it is true that the "law of the case” doctrine does not apply here, NYMU’s attempt to litigate its duty to defend is nonetheless questionable in light of the very clear manner in which this court has already resolved this issue in not one but two prior occasions.