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The Continental Ins. Co. v. George J. Beemsterboer, Inc.

United States District Court, N.D. Indiana, Hammond Division

December 8, 2015

THE CONTINENTAL INSURANCE COMPANY, Plaintiff,
v.
GEORGE J. BEEMSTERBOER, INC., BEEMSTERBOER SLAG & BALLAST CORPORATION, and CALUMET TRANSLOAD RAILROAD LLC, Defendants

          For Continental Insurance Company The, Plaintiff, Counter Defendant: Valerie L Walker Rodriguez PHV, LEAD ATTORNEY, PRO HAC VICE, Elenius Frost & Walsh, Chicago, IL; Dennis F Cantrell, Cantrell Strenski & Mehringer LLP, Indianapolis, IN.

         For George J Beemsterboer Inc, Beemsterboer Slag & Ballast Corporation, Calumet Transload Railroad LLC, Defendants: Michael O Nelson, LEAD ATTORNEY, Nelson Law Group LLC, Indianapolis, IN.

         For Calumet Transload Railroad LLC, George J Beemsterboer Inc, Beemsterboer Slag & Ballast Corporation, George J Beemsterboer Inc, Counter Claimants: Michael O Nelson, LEAD ATTORNEY, Nelson Law Group LLC, Indianapolis, IN.

         OPINION AND ORDER

         RUDY LOZANO, United States District Judge.

         This matter is before the Court on the Motion for Partial Summary Judgment filed by Plaintiff Continental Insurance Company (" Continental" ), on June 8, 2015 (DE# 23), and the Motion for Partial Summary Judgment against Plaintiff as to Liability on Count I of Plaintiff's Complaint and Counts I, II and IV of Defendants' Amended Counterclaims, filed by Defendants George J. Beemsterboer, Inc., Beemsterboer Slag & Ballast Corporation, and Calumet Transload Railroad LLC (collectively, " Beemsterboer" ) on June 8, 2015 (DE# 24). For the reasons set forth below, Continental's Motion for Partial Summary Judgment (DE# 23) is GRANTED. Beemsterboer's Motion for Partial Summary Judgment (DE# 24) is DENIED.

         FACTS

         For the purposes of these motions for partial summary judgment, the facts below are undisputed:

         Continental Insurance Policy

         Continental issued insurance policy numbers H0864659 and H0864870 (the " Policies" ) to Beemsterboer.[1] The declarations pages of the Policies indicate they are " hull" insurance policies with limits of $1 million. The Policies include the following coverage:

LANDING DOCK BAILEE LIABILITY
1. In consideration of the stipulations hereinafter named and the payment of premiums as hereinafter provided, and subject to the limits of the liability, exclusions, conditions and other terms of this policy, this Company agrees to indemnify the Insured to the extent of this policy's proportion as hereinafter stated of all sums which the Insured shall become obligated to pay:
A. By reason of the liabilities imposed upon the Insured by law for accidental:
(1) loss of or damage to barges and to towboats, their equipment, cargo, freight, and other interests on board . . ., the property of others while such property is in the custody of the Insured at their landing and mooring facilities described below, but excluding all liability for loss or damage resulting from loading or unloading operations performed by or for the Insured;
(2) loss of or damage to barges, their equipment, cargo, freight and other interests on board . . . the property of others, while such property is in the custody of the Insured at their landing and mooring facilities described below resulting from loading or unloading operations performed by or for the Insured;
(3) loss of or damage to property of others (other than as described above), including vessels of not exceeding 750 net registered tons approaching, at, and departing from the landing and mooring facilities described below, or for loss of life or personal injury; if arising out of only those operations covered above.
. . .
2. Coverage under Clauses lA(l) and 1A(2) attaches from the moment the said barges or towboats become at risk of the Insured at premises as specified below and covers continuously thereafter until removed from said premises, or until no longer at the risk of the Insured, whichever shall first occur. . . .
. . .
4. This policy applies only to the Insured's landing and mooring facilities on the MM [mile marker] 330, Calumet River at 106th St., Chicago, IL Calumet River at 10730 Burley Ave., Chicago, IL
. . .

(DE# 25-1 at 9-10.) Paragraph 5 includes the following relevant exclusion, " Exclusion K" :

5. Notwithstanding the foregoing, it is hereby expressly understood and agreed that this insurance does not cover against nor shall any liability at each hereunder:
. . .
K. For any loss, damage, cost, liability or expense of any kind or nature whatsoever, imposed on the Insured, directly or indirectly in consequence of, or with respect to, the actual or potential discharge, emission, spillage or leakage upon or into the seas, waters, land or air, of oil, petroleum products, chemicals or other substances of any kind or nature whatsoever.

(Id. at 11.) Paragraph 8 requires the Insured to log the arrival and departure of each vessel at risk under Section 1A(1) or 1A(2), which is then used to compute the earned premium for the Policies, as follows:

$6.45 per vessel per day or any part thereof for coverage provided by Clause 1A(1) and an additional premium of
$Incl. per vessel per day or any part thereof for coverage provided by Clause 1A(2) if such vessel was either loaded or unloaded by or for the Insured during the period of custody and an additional premium of
$Incl. per vessel per day or any part thereof for coverage provided by Clause 1A(3)
$125 per vessel berthing
. . .

( Id. ) The Policies also include the following relevant exclusion:

EXCLUSION - RESPIRABLE DUST
It is understood and agreed that this insurance does not apply to any liability for, or any loss, damage, injury or expense caused by, resulting from, or incurred by reason of any one or more of the following:
1. " Bodily injury" arising in whole or in part out of the actual, alleged or threatened respiration or ingestion at any time of " respirable dust" ; or
2. " Property damage" arising in whole or in part out of the actual, alleged or threatened presence of " respirable dust" ; or
3. " Personal and advertising injury" arising in whole or in part out of the actual, alleged or threatened exposure at any time to or the presence of " respirable dust" .

         The following definition applies herein:

" Respirable dust" means respirable particulate matter but does not include living organisms.

( Id. at 27.)

         The Class Action Litigation

         In 2013, a consolidated class action complaint (" Class Action Complaint" ) was filed against Beemsterboer and other defendants in the United States District Court for the Northern District of Illinois entitled, Rosalio Campos, et al. v. BP Products North America, Inc., et al., Case No. 1:13-cv-08376 (" Class Action Litigation" ).[2] (DE# 25-2.) According to the Class Action Complaint, defendants George J. Beemsterboer, Inc. (" Beemsterboer Inc." ) and Beemsterboer Slag & Ballast Corporation (" Beemsterboer Slag" ) own, maintain, and/or control a storage and transfer terminal at 2900 East 106th Street in Chicago, situated on the west bank of the Calumet River (" 106th Street Facility" or " Facility" ), and defendant Calumet Transload Railroad LLC owned, operated, maintained and controlled a storage transfer terminal located at 10730 South Burley ...


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