Century Indemnity Company v. The Marine Group, LLC et al

Filing 815

OPINION and ORDER - National Union's requests 671 and 762 , Granite State's request 674 , and ICSOP's request 686 for judicial notice are granted. The court will consider the documents, where relevant, in ruling on the parties' respective motions for summary judgment. DATED this 31st day of August, 2015, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

CENTURY INDEMNITY COMPANY,
a Pennsylvania Corporation,
Plaintiff,

Case No.: 3:08-CV-1375-AC
OPINION AND
ORDER

v.
THE MARINE GROUP, TLC, a California
limited liability company, as affiliated with
Northwest Marine, Inc.; NORTHWEST
MARINE, INC., an inactive Oregon
corporation, as affiliated with Northwest
Marine Iron Works; NORTHWEST
MAIUNE IRON WORKS, an inactive
Oregon corporation,
Defendants.
THE MARINE GROUP, LLC, a California
limited liability company, as affiliated with
Northwest Marine, Inc.; NORTHWEST
MARINE, INC., an inactive Oregon
corporation, as affiliated with Northwest

Page 1 - OPINION AND ORDER

{SIB}

Marine Iron Works; NORTHWEST
MARINE IRON WORKS, an inactive
Oregon corporation; and BAE SAN DIEGO
SHIP REPAIR, INC., a California
corporation,
Third-Party Plaintiffs,
v
AGRICULTURAL INSURANCE
COMPANY and AGRICULTURAL
EXCESS AND SURPLUS INSURANCE
COMPANY, each an Ohio corporation;
AMERICAN CENTENNIAL INSURANCE
COMPANY, a Delaware corporation;
CHICAGO INSURANCE COMPANY, an
Illinois corporation; CONTINENTAL
INSURANCE COMPANY, a Pennsylvania
corporation; EMPLOYERS MUTUAL
CASUALTY COMPANY, an Iowa
corporation; FEDERAL INSURANCE
COMPANY, an Indiana corporation;
GRANITE STATE INSURANCE
COMPANY, a Pennsylvania corporation;
HARTFORD INSURANCE COMPANY, a
Connecticut corporation; INSURANCE
COMPANY OF THE ST ATE OF
PENNSYLVANIA, a New Jersey
corporation; INSURANCE COMPANY OF
NORTH AMERICA, a Pennsylvania
corporation; CERTAIN UNDERWRITERS
AT LLOYD'S, LONDON and CERTAIN
LONDON MARKET INSURANCE
COMPANIES, each a foreign corporation;
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA, a
Pennsylvania corporation; NEW
ENGLAND REINSURANCE COMPANY,
a Connecticut corporation; OLD REPUBLIC
INSURANCE COMPANY, an Illinois
corporation; PACIFIC MUTUAL MARINE
OFFICE INC., a New York corporation;
RELIANCE INSURANCE COMPANY, a
Page 2 - OPINION AND ORDER

{SIB}

Pennsylvania corporation; ROY AL
INDEMNITY COMPANY, a Delaware
corporation; ST. PAUL FIRE & MARINE
INSURANCE COMPANY, individually
and as successor to ST. PAUL MERCURY
INDEMNITY COMPANY, a Minnesota
corporation; TWIN CITY FIRE
INSURANCE COMPANY, an Indiana
corporation; WATER QUALITY
INSURANCE SYNDICATE, a syndicate
of foreign corporations; WEST COAST
MARINE MANAGERS, INC., a New York
corporation; AMERICAN MANUFACTURER'S
MUTUAL INSURANCE COMPANY, an
Illinois corporation; DANIELSON
NATIONAL INSURANCE COMPANY,
successor to MISSION NATIONAL
INSURANCE COMPANY, a California
corporation; FM GLOBAL INSURANCE
AGENCY, successor to ARKWRIGHT
BOSTON MANUFACTURER'S MUTUAL
INSURANCE COMPANY, a Delaware
corporation; STERLING CASUALTY
INSURANCE COMPANY, successor to
NATIONAL AUTOMOBILE AND
CASUALTY COMPANY, a California
corporation; and JOHN DOE INSURANCE
COMPANIES,
Third-Party Defendants.

ACOSTA, Magistrate Judge:

I11trod11ctio11
Currently pending before the court are numerous summary judgment motions addressing
insurers duty to participate in the defense of their insureds with regard to the remediation of the
Portland Harbor Superfond Site. Various insurers have requested the court take judicial notice of
identified documents in support of their motions for partial summary judgment or opposition to a
Page 3 - OPINION AND ORDER

{SIB}

motion for summary judgment.
Specifically, National Union Fire Insurance Company of Pittsburgh, PA ("National Union")
asks the court to take judicial notice of the Complaint for Declaratory Judgment filed by Century
Indemnity Company on November 21, 2008, initiating this action (the "Complaint"); the Second
Amended Answer and Third-Party Complaint filed by The Marine Group, LLC, Northwest Marine,
Inc., Northwest Marine Iron Works, and BAE Systems San Diego Ship Repair, Inc. (the "Marine
Group"), on February l, 2010 (the "Third-Party Complaint"); and the Answer to the Third-Party
Complaint filed by Argonaut Insurance Company on October 8, 2010 (the "Answer"),in support of
its motion for partial summary judgment. Granite State Insurance Company ("Granite State") and
Insurance Company of the State of Pennsylvania ("ICOSP") also seek judicial notice of the
Complaint in support of their respective motions for partial summary judgment. ICOSP additionally
asks the court to take judicial notice of the unpublished Order Granting TIO Insurance Company's
Motion for Partial Summary Judgment Regarding Exhaustion of Underlying Indemnity Limits
entered by the Circuit Court of the State of Oregon for the County of Multnomah on October 13,
2014, in Allianz Global Risks US Ins. Co. v. Ace Property & Casualty Ins. Co., No. 1203-04552 (the
"Order") in support of its motion for partial summary judgment. Finally, National Union seeks
judicial notice ofthe Portland Harbor Natural Resource Trustee Council Fact Sheet available through
the United States Fish and Wildlife Service website (the "Fact Sheet") in support of its opposition
to the Marine Group's motion for summary judgment. No objections to the requests for judicial
notice have been filed.
Legal Standard

Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice ofa fact
Page 4 - OPINION AND ORDER

{SIB}

"that is not subject to reasonable dispute because it:(!) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and readily determination from sources whose
accuracy cannot reasonably be questioned." FED. R. Evm. 201 (2015). Courts readily take judicial
notice of"undisputed matters of public record" and "documents on file in federal or state courts."

Harris v. County of Orange, 682 F.3d 1126,1132 (9th Cir. 2012).
Discussion
I. The Complaint, Third-Party Complaint, and Answer

National Union, Granite State, and ICSOP seek judicial notice of the Complaint while
National Union seeks judicial notice of the Third-Party Complaint and Answer as well. Documents
previously filed with the court in the instant litigation are subject to judicial notice. See Asdar Group

v. Pillsb111J1, i\1adison and Sutro, 99 F.3d 289, 290 n. l (9th Cir. l 996)(takingjudicial notice of facts
contained in complaint and prior court orders in case). However, the court may not judicially notice
the truth of the disputed facts contained in such document. Lee v. City o/Los Angeles, 250 F.3d 668,
689 (9th Cir. 200 I).
National Union, Granite State, and ICSOP rely on paragraphs 5 and 6 of the Complaint as
evidentiary support for general background information relative to this action. As the Marine Group
admits the general background facts relied on by National Union, Granite State, and ICSOP, the
court may take judicial notice of these facts. The court will also take judicial notice of the
Complaint, Third-Party Complaint, and Answer 1 in their entirety, but will not treat the allegations
contained therein as established facts in the absence of similar admissions.

1

It is unclear why National Union seeks judicial notice of the Third-Party Complaint and the
Answer as it has not referred to them in its summary judgment briefing.
Page 5 - OPINION AND ORDER

(.'>!BJ

II. The Order
ICSOP asks the court to take judicial notice of the Order in which the state court found that
"[b]efore there is any potential for indemnity coverage under the Moving Defendants' policies for
the Underlying Environmental Claims ... , Allianz must prove exhaustion of the Insured's retained
limits and indemnity limits of liability of all triggered insurance policies in all years of responsive
coverage with limits ofliability less than the attachment points of the respective Moving Defendants'
policies" (Order at 1-2.) A court may take judicial notice of complaints, briefs, and opinions filed
in another case to determine what issues were before that court and were actually litigated. Reyn 's

Pasta Bella, lLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). However, a court may
not take judicial notice of facts presented in those documents or in court opinions for the purpose
of considering those facts to be established in the case currently before them. IYyalf v. Terhune, 315
F.3d 1108, 1114 (9th Cir. 2003)(citing lvf/V American Queen v. San Diego 1\1arine Conslr. Co111.,
708 F.2d 1483, 1491 (9th Cir. 1983)("As a general rule, a court may not take judicial notice of
proceedings or records in another case so as to supply, without formal introduction of evidence, facts
essential to support a contention in a cause before them.")).
The Order is undeniably a matter of public record appropriate for consideration by the court
for the limited purpose of determining the issues before, and ruling by, the state court. However, the
terms of the insurance policies at issue in the state court action were not identified in the Order,
preventing this court from considering the ruling anything other than a general statement oflaw. The
court will take judicial notice of the Order to this limited extent.
!IL The Fact Sheet
The Fact Sheet describes the purpose of the Portland Harbor Natural Resource Trustee.
Page 6 - OPINION AND ORDER

{SIB}

Council (the "Council"), identifies the current trustees serving on the Council, and summarizes the
legal authority of the Council. Government-agency websites, and the information contained therein,
are mallers of public record appropriate for judicial notice under Rule 201. A1o/ina v. Washington
Aiut. Bank, No. 09-CV-00894-IEG (AJI3), 2010 WL 431439, at *3 (S.D. Cal. Jan. 29, 2010)

("Information on government agency websites has often been treated as properly subject to judicial
notice.") The Fact Sheet, a page from the United States Fish and Wildlife Service website, is a
public record appropriate for judicial notice.
Conclusion

National Union's requests(# 671 and # 762), Granite State's request (#674), and ICSOP's
request (#686) for judicial notice are granted. The court will consider the documents, where
relevant, in ruling on the parties respective motions for summary judgment.
DATED this 31st day of August, 2015.

JOHN V. ACOSTA
Unit ''States Magistrate Judge

Page 7 - OPINION AND ORDER

{SIB}