Reese
Reese v. Travelers Insurance
Opinion
Lead Opinion
Fletcher, J.
Opinion by Judge FLETCHER; Concurrence by Judge BOOCHEVER.
Plaintiff John Chrisman filed a complaint against appellants Robert Reese, Gary Mra-zek, Joseph Tomlinson and Stephen Somo-gye, all former directors and officers or directors or officers of Keystone Metal Co., a metals reclamation operation. The complaint alleged environmental contamination, including groundwater contamination, arising out of the operation of Keystone. Appellant Reese filed a third-party complaint against Keystone’s general commercial liability insurer, The Travelers Insurance Company (Travelers), seeking a declaration that Travelers was obligated to defend him in the Chrisman action. Reese also brought claims against Travelers for indemnity, declaratory relief regarding the duty to indemnify, and breach of the implied covenant of good faith and fair dealing. The district court granted summary judgment in favor of Travelers, holding that Travelers had no duty to defend appellants in the underlying action. We have jurisdiction, 28 U.S.C. § 1291 , and we reverse and remand for further proceedings.
BACKGROUND
In 1993, John Chrisman commenced an action in federal district court against appellants asserting…
Concurring Opinion
Boochever, J.
concurring:
I concur in the majority’s result, and would agree with its reasoning concerning an insurer’s duty to defend were it not for California law to the contrary.
In this action for declaratory relief, if Travelers could have established by undisputed evidence that there was no possibility of groundwater contamination giving rise to damage to property other than that of its insured, California law would hold that there is no duty to defend. In Montrose Chemical Corp. v. Superior Court, 6 Cal.4th 287 , 24 Cal.Rptr.2d 467, 474 , 861 P.2d 1153, 1160 (1993), the California Supreme Court, concurring in and quoting the reasoning of the Court of Appeals, stated
(Emphasis added.)
Similarly, in Waller v. Truck Ins. Exch, 11 Cal.4th 1 , 44 Cal.Rptr.2d 370, 377-78 , 900 P.2d 619, 627 (1995), the court stated
(Citations omitted and emphasis added.)
Thus, if Travelers had established by undisputed evidence that there was no possibility of groundwater contamination so that damage was confined to property owned by the insured, under the law as stated by the California Supreme Court, Travelers would be entitled to a declaratory judgment that it had no duty to defend.