HOME INDEM. CO. v. HOECHST CELANESE CORP.

No. COA97-459.

494 S.E.2d 774 (1998)

The HOME INDEMNITY COMPANY, The Home Insurance Company, and City Insurance Company, Plaintiffs, v. HOECHST CELANESE CORPORATION; Aetna Casualty & Surety Company; AIU Insurance Company; Allstate Insurance Company; American Centennial Insurance Company; American Home Assurance Company; American Motorist Insurance Company; American Professionals Insurance Company; American Re-Insurance Company; Associated International Insurance Company; Birmingham Fire Insurance Company of Pennsylvania; California Union Insurance Company; Centennial Insurance Company; Certain Underwriters at Lloyds London and Certain London Market Insurance Companies; Certain Underwriting Syndicates of the Illinois Insurance Exchange; Certain Underwriting Syndicates of the Insurance Exchange of the Americas; Cigna Insurance Company; Columbia Casualty Company; Commercial Union Insurance Companies; Continental Casualty Company; Continental Insurance Company; Crum & Forster Insurance Company; Employers Insurance of Wausau, a Mutual Company; Employers Mutual Casualty Company; Eric Reinsurance Company; Excess Insurance Company, Limited; Federal Insurance Company; Fireman's Fund Insurance Company; First State Insurance Company; Fremont Indemnity Insurance Company; Gibraltar Casualty Company; Government Employees Insurance Company (GEICO); Harbor Insurance Company; Hartford Accident and Indemnity Company; Highlands Insurance Company; Hudson Insurance Company; Insurance Company of North America; Insurance Company of the State of Pennsylvania; International Surplus Lines Insurance Company; Lexington Insurance Company; London Guarantee and Accident Company of New York; Lumbermen's Mutual Casualty Insurance Company; Meadows Syndicate, Inc.; National Casualty Company; National Union Fire Insurance Company of Pittsburgh, P.A.; New England Insurance Company; New England Reinsurance Company; North River Insurance Company; North Star Reinsurance Corporation; Northwestern National Casualty Company; Northwestern National Insurance Company; Pacific Insurance Company; Progressive American Insurance Company; Prudential Reinsurance Company; Royal Indemnity Company; Signal Insurance Company; St. Paul Fire and Marine Insurance Company; Stonewall Insurance Company; Tortuga Casualty Insurance Company; The Travelers Indemnity Company; Twin City Fire Insurance Company; Vik Re Syndicate, Inc., Underwriters Reinsurance Company; United Insurance Companies, Inc.; X.L. Insurance Company Limited; Zurich Insurance Company, Defendants.

Court of Appeals of North Carolina.

January 6, 1998.


Attorney(s) appearing for the Case

Parker, Poe, Adams & Bernstein, L.L.P. by Irvin W. Hankins, III and Josephine H. Hicks, Charlotte, for defendant-appellant Hoechst Celanese Corporation.

Lowenstein, Sandler, Kohl, Fisher & Boylan by Michael Dore and David Field, Roseland, NJ, for defendant-appellant Hoechst Celanese Corporation.

The Bishop Law Firm, P.A. by J. Daniel Bishop, Charlotte, for defendant-appellee Travelers Casualty and Surety Company formerly known as The Aetna Casualty and Surety Company.

Weissman, Nowack, Curry & Wilco by Linda B. Foster, Atlanta, GA, for defendant-appellee Travelers Casualty and Surety Company formerly known as The Aetna Casualty and Surety Company.

Underwood, Kinsey, Warren & Tucker, P.A. by Ralph Kinsey, Charlotte, for defendant-appellee Aetna Casualty and Surety Company.

Cozen & O'Connor, P.C. by Sheldon Karasik, New York, NY, for defendant-appellees American International Underwriter's Inc., American Home Assurance Company, Birmingham Fire Insurance Company of Pennsylvania, Insurance Company of the State of Pennsylvania, Lexington Insurance Company and National Union Fire Company of Pittsburgh, PA.

Robinson, Bradshaw & Hinson, P.A., R. Steven DeGeorge, Charlotte, for defendant-appellees AIU Insurance Company, Birmingham Fire Insurance Company of Pennsylvania, The Insurance Company of the State of Pennsylvania, Lexington Insurance Company, and National Union Fire Insurance Company of Pittsburgh, Pa.

Jackson & Campbell, P.C. by Richard S. Kuhl, Washington, DC, for defendant-appellees AIU Insurance Company, Birmingham Fire Insurance Company of Pennsylvania, The Insurance Company of the State of Pennsylvania, Lexington Insurance Company, and National Union Fire Insurance Company of Pittsburgh, Pa.

Stott, Hollowell, Palmer & Windham by Martha R. Thompson, Gastonia, for defendant-appellees American Motorists Insurance Company and Lumbermen's Mutual Casualty Company.

Tressler, Soderstrom, Maloney & Priess by Judith Fournie Helms, Sherrin Ross Ingram and James Pinderski, Chicaqo, IL, for defendant-appellees American Motorists Insurance Company and Lumbermen's Mutual Casualty Company.

Smith, Stratton, Wise, Heher & Brennan by Wendy L. Mager, Princeton, NJ, for defendant-appellee Centennial Insurance Company.

Frazier, Frazier & Mahler by Torin L. Fury, Greensboro, for defendant-appellee Centennial Insurance Company.

Cohn & Russell by Vicky Kaiser Russell, Chicago, IL, for defendant-appellee Century Indemnity Company, successor to CCI Insurance Company, successor to Insurance Company of North America.

Law Office of Mark A. Michael by Mark A. Michael, Charlotte, for defendant-appellee Century Indemnity Company, successor to CCI Insurance Company, successor to Insurance Company of North America.

Mendes & Mount, LLP by Gary P. Schulz and Henry Lee, New York, NY, for defendant-appellee Certain Underwriters at Lloyds London and Certain London Market Insurance Companies.

Kilpatrick Stockton, LLP by Jackson N. Steele and Richard E. Morton, Charlotte, for defendant-appellee Certain Underwriters at Lloyd's, London and Certain London Market Insurance Companies.

Rivkin, Radler & Kremer by Richard S. Feldman and Leonard B. Cooper, Uniondale, NY, for defendant-appellees Commercial Union Insurance Company and Fireman's Fund Insurance Company.

Bennett, Dawson & Guthrie by Richard Bennett, Winston-Salem, for defendant-appellees Commercial Union Insurance Company and Fireman's Fund Insurance Company.

McElroy, Deutsch & Mulvaney by Laurence McHeffey and Robert S. Albert, Denver, CO, for defendant-appellees North River Insurance Company, Carum & Forster Insurance Company and International Surplus Lines Insurance Company.

Hill, Evans, Duncan, Jordan & Davis by Lindsay R. Davis, Jr., Greensboro, for defendant-appellees North River Insurance Company, Carum & Forster Insurance Company and International Surplus Lines Insurance Company.

Tuggle, Duggins & Meschan, P.A. by J. Reed Johnston, Jr., Greensboro, for defendant-appellee Employers Mutual Casualty Company.

Robins, Kaplan, Miller & Ceresi by Thomas B. Keegan and Timothy M. Block, Chicago, IL, for defendant-appellee Employers Mutual Casualty Company.

Cranfill, Sumner & Hartzog, L.L.P. by Stephanie Hutchins Autry, Raleigh, for defendant-appellee Federal Insurance Company.

Melito & Adolfsen, P.C. by Louis G. Adolfsen, New York, NY, for defendant-appellees Hartford Accident & Indemnity Company, First State Insurance Company, New England Insurance Company and Twin City Fire Insurance Company.

Cansler, Lockhart, Campbell, Evans, Bryant & Garlitz, P.A. by Hugh B. Campbell, Charlotte, for defendant-appellees Hartford Accident & Indemnity Company, First State Insurance Company, New England Insurance Company and Twin City Fire Insurance Company.

Leboeuf, Lamb, Greene & MacRae by David R. Poe and Elizabeth B. Sandza, Washington, DC, for defendant-appellee Hudson Insurance Company.

German, Gallagher & Murtagh by Michael D. Gallagher and Jeffrey N. German, Philadelphia, PA, for defendant-appellee Stonewall Insurance Company.

Rudisill & Brackett by J. Steven Brackett, Hickory, for defendant-appellee Stonewall Insurance Company.

Hedrick, Eatman, Gardner & Kincheloe by John Brem Smith, Charlotte, for defendant-appellees Associated International Insurance Company and Progressive American Insurance Companies.


EAGLES, Judge.

I

We first consider whether the trial court erred in granting partial summary judgment on the grounds that coverage under the policies was not triggered by claims arising from property damage that occurred during the years in which the policies were in effect because the contamination was not discovered until after the policies expired.

In our companion opinion (96-1435) we have reaffirmed that West American Ins. Co. v. Tufco Flooring...

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