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A New Jersey district court ruled that a policyholder’s disposal of waste at numerous landfill sites constitutes multiple occurrences.  Penn Nat’l Ins. Co. v. Crum & Forster Ins. Co., 2017 WL 3835667 (D.N.J. Sept. 1, 2017).

Bittner, a waste hauling company, delivered waste to three separate landfills.  The dumping at each site gave rise to a separate superfund lawsuit against Bittner.  During the relevant time period, Bittner was insured under primary policies issued by Penn National and excess policies issued by North River.  After the three superfund suits settled, Penn Nation sued North River, seeking reimbursement for defense and indemnity incurred in the underlying actions.  North River argued that Penn National’s contribution claim with respect to one of the suits (which had settled in 1998) was time bared under New Jersey’s six-year statute of limitations.  Resolution of this issue turned on the accrual date of the contribution claim, which in turn, depended on whether the claims in the three suits arose out of multiple occurrences or a single occurrence. 

North River argued that Bittner’s disposal of waste at each landfill is a separate occurrence, and that the statute of limitations on any contribution claim that Penn National might have had with respect to each site began to accrue upon settlement of the claims for that site.  In contrast, Penn National contended that Bittner’s hauling activities at all three landfills constitute a single occurrence, such that its contribution claims against North River did not accrue until the last underlying settlement was finalized.

The court concluded that Bittner’s waste disposal at the three landfills are separate occurrences under New Jersey’s cause-based approach.  Focusing on the “temporal and spatial connection” between the events, the court emphasized that the landfills were in separate geographic locations and that the hauling occurred at different times over nearly a decade.  Additionally, the court noted that Penn National’s own conduct (and the testimony of its corporate designee) contradicted its single-occurrence argument.  In particular, Penn National brought the contribution claim two years before the last underlying settlement, thus belying its argument that its contribution claim was not ripe until after the last settlement. 

Having determined that the activities at each landfill constitute a separate occurrence, the court concluded that the contribution claim arising from a 1998 settlement of an underlying suit was time barred.  With respect to the other two suits, the court ruled that Penn Nation had failed to establish that its primary limits were exhausted – a prerequisite to contribution from North River under its excess policies.