United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
insurer Defendant Illinois Union Insurance Co.
(“ILU”) refused to indemnify Plaintiff Sunflower
Redevelopment, LLC (“Sunflower”), Sunflower sued
for declaratory judgment and breach of contract.
parties' request, the Court agreed to separate the
litigation of this case into two phases (Doc. 29). The issue
in Phase I was whether certain pollution conditions within
particular areas of the Plant were excluded from coverage
under a Premise Pollution Liability (“PPL”)
insurance policy. The Court found none of the endorsements to
the PPL policy excluded coverage for these particular costs.
See (Doc. 65). Phase II consist of all other issues
to determine whether ILU has a duty to defend and indemnify
Sunflower under the PPL policy.
before is Sunflower's motion to exclude certain testimony
of ILU's expert Adam Love, Ph.D. (“Love”)
(Doc. 125). For the following reasons, the Court GRANTS IN
PART Plaintiff's motion.
heart of this dispute is the Sunflower Army Ammunition Plant
(“Plant”). The Army manufactured power and
propellant munitions, and nitric and sulfuric acids at the
its operation, spills and releases of propellant, heavy
metals, nitrate compounds, and other pollutants contaminated
various parts of the Plant property. Due to these activities,
numerous areas of the property were determined to be heavily
1998, the Army determined it no longer needed the Plant.
Sunflower sought to purchase the property with a vision to
clean up the pollutants and develop the land. On August 3,
2005, Sunflower entered into an agreement with the Army to
purchase the Plant. On the same day, Sunflower entered into a
Remediation Services Agreement (“RSA”) with the
United States, which obligated Sunflower to purchase
environmental insurance, secure the worksite, and perform
certain remediation work. In exchange, the Army would pay
Sunflower for the outlined remediation work. The Army and
Sunflower codified the specific remediation work covered by
the RSA into the “Remediation Plan.”
of the project financing, Sunflower purchased PPL and
Remediation Cost Containment (“RCC”) insurance
policies from ILU. Both policies were custom policies that
were the result of negotiations between the parties.
Generally, the PPL policy provides coverage for unknown, and
certain known, pre-existing pollution conditions at the Plant
and the RCC affords coverage for costs that exceed the
Remediation Plan. There are numerous exclusions and
endorsements to both policies. Relevant to this motion, the
PPL policy contains a self-insured retention amount of $250,
000 per pollution condition.
dispute between the parties was triggered by a letter KDHE
sent Sunflower. Sunflower believed KDHE was requiring it to
perform certain remediation work and that work was covered by
the PPL policy. ILU's interim coverage decision was that
the PPL policy had not been triggered. As a result of that
decision, Sunflower filed this two-count lawsuit for
declaratory judgment and breach of contract.
hired Love, an expert in environmental forensics, site
characterization, remediation of contamination, and the
movement of contamination through the environment to rebut
the opinions of Sunflower's expert Timothy Stecher
(“Stecher”). Love's expert report opines on
several specific pollution conditions, project costs, what
was required under the RSA, and applies the PPL policy's
definition of pollution condition to the various conditions
at issue. Love testified he does not make legal evaluations
of insurance policies.
Court determined, and the parties agree, the polices are
unambiguous (Doc. 65). The issue in Phase I was whether
certain pollution conditions at particular locations at the
Plant were excluded from coverage under the PPL policy. The
Court found none of the endorsements to the PPL Policy
excluded coverage for those conditions (Doc. 65). Phase II
concerns all other issues to determine whether ILU has a duty
to defend and indemnify Sunflower under the PPL policy. The
Court recently ruled on the parties' cross-motions for
summary judgment (Doc. 168).
Kansas law,  an insurance policy constitutes a contract
and the interpretation of a contract is a question of law.
AMCO Ins. Co. v. Beck,929 P.2d 162, 165 (Kan.
1996). Finding the policies are unambiguous, the court must
take unambiguous language in its plain and ordinary sense.
Warner v. Stover,153 P.3d 1245, 1247 (Kan. 2007).
Thus, “[i]f the terms of the contract are clear, there
is no room for rules of construction, and the intent of the