United States District Court, N.D. Indiana, LaFayette Division
LANDISᦄ INC., a Delaware Corporation, f/k/a LANDIS & GYR METERING, INC., Plaintiff,
ZURICH AMERICAN INSURANCE COMPANY, a New York Corporation, f/k/a ZURICH INSURANCE COMPANY, Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge.
matter is before the court on the Motion for Partial Summary
Judgment [DE 53] and the Motion to Strike Certain
Inadmissible Testimony Cited by Zurich [DE 84] filed by the
plaintiff, Landisᬪ Inc., on December 1, 2017 and March 22,
2018, and the Rule 56(D) Motion [DE 100] filed by the
defendant, Zurich American Insurance Company, on May 14,
2018. For the following reasons, the Motion for Partial
Summary Judgment [DE 53] is DENIED, the
Motion to Strike Certain Inadmissible Testimony Cited by
Zurich [DE 84] is DENIED, and the Rule 56(D)
Motion [DE 100] is DENIED.
plaintiff, Landisᬪ Inc., initiated this matter on October
7, 2016. Landis seeks to compel the defendant, Zurich
American Insurance Company, to defend and indemnify Landis
against the liability claims that the United States
Environmental Protection Agency (USEPA) and the Indiana
Department of Environmental Management (IDEM) brought over
environmental contamination. Landis asserts that the
allegations fall within the coverage of the primary and
umbrella policies that were issued by Zurich.
November of 1984, Landis was required to commence an
investigation under the Resource Conservation and Recovery
Act (RCRA) at the Sagamore Parkway Site (Site) located at
3601 Sagamore Parkway North in Lafayette, Indiana, in
response to demands from USEPA and IDEM. USEPA identified
Landis as a possible source of significant contamination at
the Site. Landis has indicated that the contamination was not
intended or expected, rather it resulted from historical,
inadvertent releases and/or spills of contaminants. Landis
asserts that the contamination resulted in property damage
during the Zurich policy years. Zurich had issued primary
commercial general liability insurance policies to Landis for
the years 1978 through 1988, and beginning in 1978 issued
Landis umbrella policies, as well as several excess policies.
1999, administration of the investigation and remediation at
the Site was transferred from USEPA to IDEM and was handled
by IDEM under the Voluntary Remediation Program (VRP). The
closure process dragged on for many years and finally came to
an end in April of 2017. Landis was granted regulatory
closure for the site and received a Covenant Not to Sue from
IDEM on April 4, 2017. Landis has incurred approximately $7
million in expenses in response to the EPA and IDEM's
demands, and with interest at the statutory rate, total costs
incurred were over $13 million.
has indicated that by at least mid-1995 it had provided
notice to Zurich concerning the environmental liability
claims that were pending against it. Landis asserts that it
re-engaged Zurich through a letter dated September 16, 2014.
Zurich's claim handler, David Olson, responded on
September 19, 2014 that Zurich was investigating coverage and
requested additional information. On October 17, 2014, Olson
sent a second letter indicating that Zurich still was
determining the availability of coverage and that he expected
to issue a coverage determination within 30 days.
one year later, Julie York, a different Zurich adjuster, sent
a letter to Landis indicating that she had taken over the
claim and was reviewing it. York represented to Landis that
the claim was flagged with the highest priority and that
Zurich would be responding with a coverage determination. On
July 10, 2016, Zurich still was reviewing the matter, and
Landis again asked for a coverage determination on August 1,
2016. Landis has indicated that when Zurich failed to respond
it filed its Complaint against Zurich on October 7, 2016.
Landis asserts that Zurich is obligated to pay for all past
and future liabilities associated with the contamination on
and around the Site, including costs to investigate, monitor,
and remediate the contamination, as well as legal defense
costs and fees.
has now moved for partial summary judgment on Zurich's
duties to defend and to indemnify it concerning the
environmental liability claims relating to the Sagamore Site.
Zurich filed a response in opposition on February 2, 2018,
and Landis filed a reply on March 22, 2018.
also has filed a motion requesting that the court strike
portions of the affidavits of Cherish Hairrell and Peter
Alvey that were submitted by Zurich. Landis has argued that
the affidavits consist of unsubstantiated speculation and do
not purport to be the product of a proper expert opinion.
Zurich filed a response in opposition on April 5, 2018, and
Landis filed a reply on April 12, 2018.
parties have filed Motions for Partial Summary Judgment on
Choice of Law that are still pending before the court. The
motions were fully briefed on August 28, 2018. The choice of
law analysis will not affect the outcome of the motions that
currently are before the court.
addressing Landis's motion for partial summary judgment,
the court first must determine what evidence it may evaluate
by addressing Landis's motion to strike certain testimony
cited by Zurich. In its response, Zurich cited and relied on
an affidavit from Cherish Hairrell to support its contention
that Landis did not notify Zurich of its initial claim
concerning the contamination at the Sagamore Parkway Site
prior to September 16, 2014. Moreover, Zurich relied on an
affidavit from Peter Alvey to support its contention that
Landis's late notice prejudiced Zurich.
has moved to strike paragraphs 5, 7, 8, 10, 11, 13, and 14 of
Hairrell's affidavit, as well as paragraphs 13, 14, and
15 of Alvey's affidavit. Landis asserts that the
paragraphs are not based on personal knowledge and consist of
unsubstantiated speculation and multiple levels of hearsay.
Thus, Landis has argued that the paragraphs are inadmissible
and cannot create a genuine issue of material fact under
Federal Rule of Civil Procedure 56.
Rule of Civil Procedure 56(c)(4) mandates that,
“[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated." The affiant may include reasonable inferences
drawn from his own observations but may not testify as to the
knowledge or observations of another. Payne v.
Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (quoting
Visser v. Packer Eng'g Assoc., 924 F.2d 655, 659
(7th Cir.1991) (en banc)) (“[A]lthough personal
knowledge may include reasonable inferences, those inferences
must be ‘grounded in observation or other first-hand
personal experience. They must not be flights of fancy,
speculations, hunches, intuitions, or rumors about matters
remote from that experience.'”); see also
Jenkins v. Heintz, 124 F.3d 824, 831 (7th Cir. 1997)
(affiant cannot testify as to the knowledge of another);
Davis v. House of Raeford Farms of Louisiana LLC,
2008 WL 2952477, *1 (W.D. La. 2008) (finding that witness was
not competent to testify to what another knew). On a motion
for summary judgment, a court must not consider those parts
of an affidavit that do not comply with the requirements as
set out in Rule 56. Adusumilli v. City of Chicago,
164 F.3d 353, 359 (7th Cir. 1998) (citing Friedel v. City
of Madison, 832 F.2d 965, 970 (7th Cir. 1987)).
Landis contends that the statements in paragraphs 5, 7, 8,
10, 11, 13, and 14 of Hairrell's affidavit are hearsay
and not based on personal knowledge, lack foundation, and are
speculative, making them inadmissible and insufficient to
establish a genuine issue of material fact. Hairrell's
affidavit indicated that she was an employee of Zurich for
over 15 years and was employed as a Claims Supervisor within
the claims department. [Hairrell Aff. ¶2]. Landis
contends that Hairrell has attested to facts dating back to
the 1980's and 90's, yet she did not have the
personal knowledge that was required under Rule 56(c)(4).
Landis has requested that the court strike the following
¶ 5 Zurich first received notice of the environmental
contamination and remediation at the Sagamore Site on
September 16, 2014, when Zurich received a letter from
Landisᬪ, Inc.'s counsel, Brent Huber of Ice Miller. In
that letter, Mr. Huber stated that Landis Gyr, Inc. had
previously given notice of the Sagamore Site to Zurich. By
letter dated September 25, 2014, Landis contended that Zurich
was notified of the Sagamore Site claim in 1987.
¶ 7 Zurich maintains a claims database that includes all
claims reported to Zurich from May 1, 1986 through the
present. Zurich does not delete claim information that is
entered into this database.
¶ 8 Zurich employees can search all of the claims that
have been reported to Zurich and entered into this database
through software known as “eZACCESS.”
¶ 10 If Zurich had received notice of the Sagamore Site
after May 1, 1986, a record of the claim would have been
maintained in the claim database.
¶ 11 Zurich has never systematically disposed of old
claim files from the 1980s and 1990s, even if Zurich's
relevant document retention policy would have permitted
Zurich to dispose of certain types of claim files under
certain circumstances. Instead, it has always been
Zurich's practice to transfer older claims files to
¶ 13 During this search, Zurich employees working under
my supervision did locate a claim related to Landis &
Gyr, Inc.'s disposal of hazardous wastes at a landfill
operated by Lakeland Disposal Services in Claypool, Indiana
(the “Lakeland Site”). The claim regarding the
Lakeland Site was reported to Zurich in 1987 and was
unrelated to the Sagamore Site. None of the correspondence or
documents in the Lakeland Site claim file referred to
environmental contamination or remediation at the Sagamore
¶ 14 Even if the physical claim file for the Sagamore
Site had been disposed of pursuant to Zurich's document
retention policies, a record of the claim would have remained
in the claim database and would be identifiable through a
search run on eZACCESS.
has argued that Hairrell does not have personal knowledge of
the above statements and that they are contradicted by
Zurich's written policies, practices, and procedures.
Moreover, Landis asserts that according to Hairrell's
deposition she gathered information from other Zurich
employees to investigate and prepare for her testimony, yet
she did not speak to anyone who had worked in the
Zurich's records group in 1985. Therefore, Landis
contends that the statements in Hairrell's affidavit are
has argued that Landis has ignored the fact that Hairrell was
designated as Zurich's corporate witness pursuant to
Federal Rule of Civil Procedure 30(b)(6). Hairrell learned
information about Zurich's claims handling and records
retention procedures during the course of her employment.
Moreover, Zurich asserts that Hairrell was entitled to
testify about information known ...