
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1707                            RICHARD A. MOTTOLO AND SERVICE                              PUMPING & DRAIN CO., INC.,                               Plaintiffs - Appellants,                                          v.                               FIREMAN'S FUND INSURANCE                                   COMPANY, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                           and Barbadoro,* District Judge.                                           ______________                                _____________________               James  H. Gambrill,  with whom  Engel, Gearreald  & Gardner,               __________________              ____________________________          P.A. was on brief for appellants.          ____               Kevin C.  Devine,  with whom  Devine  & Nyquist,  Joseph  S.               ________________              _________________   __________          Crociata, Stuart L. Peacock, Gilberg & Kurent, Stephen Dibble and          ________  _________________  ________________  ______________          Ouellette,  Hallisey, Dibble  & Tanguay,  P.A. were on  brief for          ______________________________________________          appellees.               Thomas W. Brunner, Laura  A. Foggan, Richard H.  Gordin, Lon               _________________  ________________  __________________  ___          A. Berk, Dennis  A. Tosh and Wiley, Rein &  Fielding on brief for          _______  _______________     _______________________          Insurance Environmental Litigation Association, amicus curiae.                                 ____________________                                   January 3, 1995                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA, Chief Judge.  Plaintiffs-appellants, Richard                    TORRUELLA, Chief Judge.                               ___________          Mottolo  ("Mottolo")  and Service  Pumping  and  Drain Co.,  Inc.          ("Service"), appeal the district court's  summary judgment ruling          that no coverage  was provided under insurance policies issued to          Mottolo by defendants-appellees, Fireman's Fund Insurance Company          ("Fireman's Fund"),  United States  Fidelity  & Guaranty  Company          ("USF  & G") and Aetna Casualty and Surety Company ("Aetna"), for          injury  to property caused by  the dumping of  hazardous waste by          Mottolo and Service.  For the reasons set forth below,  we affirm          the district court's entry of summary judgment.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                    On   September   8,  1983,   and   February  4,   1984,          respectively,  the United States  and the State  of New Hampshire          (together, "the  government") brought suits in  the United States          District Court  for New  Hampshire against Mottolo,  Service, and          others, pursuant  to  the Comprehensive  Environmental  Response,          Compensation and Liability  Act of 1980 ("CERCLA"),  42 U.S.C.             9601-9675,    amended   by    the   Superfund    Amendments   and                        ____________          Reauthorization Act of 1986,  Pub. L. No. 99-499, 100  Stat. 1613          (1986),  and state  law,  to recover  costs  associated with  the          cleanup of a site  used by Mottolo and Service to  dump hazardous          waste.   The two  cases were later  consolidated.  On  August 28,          1988, the  district court granted in part the government's motion          for  summary judgment,  finding Mottolo  and Service  jointly and          severally  responsible  for all  cleanup  costs  incurred by  the                                         -2-          government at the dump site.  United States v.                                        _____________          Mottolo, 695 F. Supp. 615, 631 (D.N.H. 1988).          _______                    Mottolo  and Service  then brought  this action  in the          United  States  District  Court   for  New  Hampshire  seeking  a          declaration  that the defendant insurance companies are obligated          to  indemnify them  for the costs  of cleaning up  the dump site.          Upon cross motions for summary judgment, the district court found          that  because   plaintiffs'  damages   did  not  arise   from  an          "occurrence,"  as  defined  by  defendants'  insurance  policies,          defendants  did not  have  a duty  to  indemnify the  plaintiffs.          Mottolo  v. Fireman's  Fund Ins.  Co., 830  F. Supp.  658 (D.N.H.          _______     _________________________          1993).   The district court therefore  granted defendants' motion          for  summary judgment  and  denied plaintiffs'  cross motion  for          summary judgment.  This appeal followed.                                         II.                                         II.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                    We review a district  court's grant of summary judgment          de novo and read the record in a light most favorable to the non-          __ ____          moving party,  drawing all  inferences in the  non-moving party's          favor.  LeBlanc v. Great Am. Ins. Co., 6  F.3d 836, 841 (1st Cir.                  _______    __________________          1993), cert. denied, __ U.S. __, 114 S. Ct. 1398,  128 L.Ed.2d 72                 _____ ______          (1994).   Summary  judgment is  appropriate when  "the pleadings,          depositions, answers to interrogatories, and  admissions on file,          together  with  the affidavits,  if any,  show  that there  is no          genuine issue as to  any material fact and that  the moving party                                         -3-                                          3          is entitled to  a judgment as a matter of law."   Fed. R. Civ. P.          56(c).   A "material" fact is one  "that might affect the outcome          of the suit under the governing law."  Anderson v. Liberty Lobby,                                                 ________    ______________          Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91  L.Ed.2d 202 (1986).          ____          A dispute about a material fact  is "genuine" if "the evidence is          such  that a  reasonable  jury could  return  a verdict  for  the          nonmoving party."  Id.                             __                    Essentially, Rule  56(c) mandates the entry  of summary          judgment  "against a party who fails to make a showing sufficient          to  establish the  existence  of  an  element essential  to  that          party's case, and  on which that  party will  bear the burden  of          proof at trial."   Celotex Corp. v.  Catrett, 477 U.S. 317,  325,                             _____________     _______          106 S. Ct.  2548, 91 L.Ed.2d 265  (1986).  As to  issues on which          the nonmovant has the burden of proof, the movant need do no more          than  aver  "an  absence of  evidence  to  support  the nonmoving          party's case."  Id. at 325.  The burden of production then shifts                          __          to  the nonmovant, who, to avoid summary judgment, must establish          the  existence of  at least  one question  of  fact that  is both          "genuine" and  "material."  See Anderson,  477 U.S. at 248.   The                                      ___ ________          nonmovant,  however,  may  not  rest  upon  mere  denial  of  the          pleadings.  Fed. R. Civ. P. 56.                                         III.                                         III.                                      DISCUSSION                                      DISCUSSION                    A.  Duty to Indemnify                    A.  Duty to Indemnify                        _________________                    Under New Hampshire law, an insurer's duty to indemnify          an insured may  be determined  by an analysis  of the  underlying                                         -4-                                          4          allegations against  the insured  and  the express  terms of  the          policy.  Great Lakes  Container v. National Union Fire  Ins., 727                   ______________________    _________________________          F.2d 30,  32  (1st Cir.  1984) (citing  Aetna Ins.  Co. v.  State                                                  _______________     _____          Motors,  Inc.,  109  N.H. 120,  244  A.2d  64  (1968)).   If  the          _____________          complaint in the underlying action does not on its face establish          lack of  coverage, however, inquiry may  proceed into independent          evidence.  M. Mooney Corp. v. United States Fidelity & Guar. Co.,                     _______________    ___________________________________          Inc., 136 N.H. 463, 469, 618  A.2d 793 (1992).  When interpreting          ____          the policy in light of these facts, a reviewing court  employs an          objective standard, inquiring whether  a reasonable person in the          insured's position  would have expected indemnity  for the claims          asserted against him.   See Merchants Ins. Group v.  Warchol, 132                                  ___ ____________________     _______          N.H. 23, 27, 560 A.2d 1162 (1989).                    B.  The "Occurrence" Policy Provision                    B.  The "Occurrence" Policy Provision                        _________________________________                    Mottolo seeks a declaration  of coverage from Fireman's          Fund,  USF & G and  Aetna under insurance  policies which provide          coverage  for  claims  brought  against  an  insured  because  of          property  damage   caused  by   an  "occurrence."     The  phrase          "occurrence,"  is  defined  in   each  policy  as  "an  accident,          including  continuous or  repeated exposure to  conditions, which          results in bodily injury or property damage neither  expected nor          intended from the standpoint of the insured."  The threshold, and          dispositive,  question   in  this   case  is   whether  Mottolo's          contamination  of property  was an  "accident," and  therefore an                                         -5-                                          5          "occurrence" covered by the relevant insurance policies.1                      The  New   Hampshire   Supreme  Court   has   addressed          "occurrence" policy provisions virtually  identical to the one at          bar in a line of cases beginning with Vermont Mutual  Ins. Co. v.                                                ________________________          Malcolm,  128 N.H.  521,  517 A.2d  800  (1986) and  ending  most          _______          recently  in Providence Mutual Fire Ins. Co. v. Scanlon, 138 N.H.                       _______________________________    _______          301, 638 A.2d 1246 (1994) and Green Mountain Ins. Co. v. Foreman,                                        _______________________    _______          138  N.H. 440,  641  A.2d 230  (1994).2   In  between, the  Court          decided  Jespersen v. U.S. Fidelity & Guaranty Co., 131 N.H. 257,                   _________    ____________________________          260, 551 A.2d 530 (1988) and  Fisher v. Fitchburg Mut. Ins.  Co.,                                        ______    ________________________          131  N.H. 769, 560  A.2d 630 (1989).   In those  cases, the Court          construed  the term  "accident"  in the  context of  "occurrence"          coverage to mean "'an  undesigned contingency, . . .  a happening          by  chance, something out of the usual course of things, unusual,          fortuitous, not anticipated, and  not naturally to be expected.'"          Jespersen, 131 N.H. at  260 (quoting Vermont Mutual, 128  N.H. at          _________                            ______________          523) (other  citations omitted).   The Jespersen  Court explained                                                 _________          that the question of whether the causal event was "fortuitous" is                                        ____________________          1   Because  we  agree with  the  district court  that  Mottolo's          actions did not constitute an "accident,"  and therefore were not          an  "occurrence" covered  by  the insurance  policies, we  do not          reach the question of whether the property damage was expected or          intended from  the standpoint of Mottolo,  although, as explained          infra, that inquiry is  at least partly subsumed by  our analysis          _____          of whether the contamination was an "accident."              2  The substantive law of New Hampshire controls this litigation.          See Klaxon Co. v. Stentor  Elec. Mfg. Co., 313 U.S. 487,  496, 61          ___ __________    _______________________          S.  Ct. 1020, 85  L.Ed. 1477 (1941)  (a federal  court sitting in          diversity must apply the substantive law that would be applied by          the state in which it sits); American Title Ins. Co. v. East West                                       _______________________    _________          Fin. Corp., 959 F.2d 345, 348 (1st Cir. 1992).            __________                                         -6-                                          6          answered  by considering not "'the character of the act viewed in          isolation,  but  . .  . the  character  of the  act  viewed, with          reference to the insured, as  a cause of injury.'"  Id.  (quoting                                                              __          Vermont Mutual, 128 N.H. at 524).          ______________                                         -7-                                          7                    In Scanlon, the New  Hampshire Supreme Court reiterated                       _______          the  test formulated  in Vermont  Mutual for  determining whether                                   _______________          there is an accident:                      "If the insured did not intend to inflict                      the   injury  on   the   victim  by   his                      intentional act,  and the act  was not so                      inherently injurious that the  injury was                      certain to  follow from it, the  act as a                      contributing  cause  of  injury would  be                      regarded    as    accidental    and    an                      'occurrence.'"          Scanlon,  638 A.2d at 1249  (quoting Vermont Mutual,  128 N.H. at          _______                              ______________          524).    An intentional  act is  "inherently  injurious if  it is          certain to  result in some  injury, although not  necessarily the          particular alleged injury."  Id.                                       __                    Mottolo's  actions in  dumping  materials  at the  site          were, of  course, intentional.   Therefore, his actions  were not          "accidental" if  either 1) he intended to  cause the injury or 2)          his actions  were "inherently injurious."   Mottolo has  sworn by          affidavit  that he did not  intend to injure  property by dumping          the  waste.    The  question,  therefore,  is  whether  Mottolo's          intentional acts  of dumping hazardous waste  were so "inherently          injurious" that they could  not be performed without a  certainty          that some degree of injury to property would result.   This is an          objective  inquiry  for which  Mottolo's  "intent"  to injure  is          irrelevant.   See  Jespersen,  131 N.H.  at  261 ("Because  their                        ___  _________          intentional act was inherently injurious, it is of no consequence          that the Jespersens have  sworn, without contradiction, that they          did not intend to cause the alleged injuries."); see also Fisher,                                                           ________ ______          131 N.H. at 773.                                         -8-                                          8                    C.  Underlying Allegations                    C.  Underlying Allegations                        ______________________                    The  United  States  Environmental   Protection  Agency          ("EPA") made the following allegations of pollution in paragraphs          10 and 11 of its Complaint in the underlying action:                       10.    Between  at  least  1975  and 1978                      Richard  Mottolo  buried  more than  1650                      drums   and   other  smaller   containers                      containing  waste,   including  hazardous                      substances, in the  southwest portion  of                      the  Mottolo  site.   These  wastes  were                      transported from K.J. Quinn and Co., Inc.                      and   Lewis   Chemical  Corporation   and                      disposed of at the Mottolo site.                      11.  The drums and  other containers were                      buried  in  an   area  in  the  southwest                      portion  of  the  site  adjacent  to  the                      intermittent stream.3                       Because   these   allegations    are   by    themselves          insufficient  to  determine  whether  there was  an  "occurrence"          within  the  meaning  of  the  insurance  policies  --  or,  more          precisely, whether  Mottolo's acts were  so inherently  injurious          that some degree of  injury to property was certain to  result --          we look to the facts underlying the complaint.4                    At all times relevant to this litigation, Mottolo owned          65 acres of land on Blueberry Hill Road  ("the site") in Raymond,          New Hampshire.   In 1973,  Mottolo purchased  Service, a  company          whose primary  business involved  cleaning out drains  and grease          traps,  and pumping  out  septic tanks  and  cesspools.   Service                                        ____________________          3    The  State  of  New  Hampshire  made  essentially  the  same          allegations in its Complaint.          4  We  review those facts in the light  most favorable to Mottolo          and Service.   See  Nereida-Gonz lez v. Tirado-Delgado,  990 F.2d                         ___  ________________    ______________          701, 702 (1st Cir. 1993).                                          -9-                                          9          disposed of waste accumulated  from these operations -- generally          sand, grease, and sewage  -- by taking the waste to a contractor,          or by discharging the  sewage into the city sewer  system through          licensed  spots.    In   1975  and  1977,  respectively,  Service          contracted  with K.J. Quinn  and Company ("Quinn")  and the Lewis          Chemical Corporation  ("Lewis") to pick  up and dispose  of waste          generated  by those companies.  Mottolo picked up waste for Quinn          and  Lewis until sometime in 1978, disposing approximately 200 to          300 barrels of  waste from Lewis  and 1,200 to  1,300 barrels  of          waste from Quinn.                    Mottolo or one of his  employees drove the Service dump          truck to  pick  up drums  and  barrels of  waste  at Quinn's  two          facilities  in Malden, Massachusetts and Seabrook, New Hampshire.          Mottolo  knew  Quinn  manufactured  shoe  polish  at  its  Malden          facility and  polyurethane at its Seabrook facility.  Mottolo was          informed at the Seabrook plant that Quinn "had polyurethane which          is very  thick -- it  looks like  wax."  Most  of the  containers          usually  had  the  words  "slop"  or  "waste"  written  on  them.          Although most  of the  drums  and barrels  Mottolo received  from          Quinn were sealed, Mottolo occasionally  had to replace covers on          the containers  and  observed  that  they held  a  thick  "goopy"          substance or "water slop."  On one  occasion, Service picked up a          cardboard container  from Quinn  which leaked a  "rancid" "super,          super strong"  smelling liquid  onto the  pavement  at the  site.          Mottolo  made no attempt to  ascertain the contents  of the waste          containers.                                         -10-                                          10                    Mottolo knew Lewis ran a solvent factory and knew  that          the  sludge  he  hauled  was  leftover  from  Lewis'  operations.          Mottolo's agreement with Lewis began when a Lewis official called          Mottolo and informed him that they had "a lot of solvent and were          looking . .  . to get rid of  it."  Mottolo informed him  that he          had a dump, but that he did not have a permit.  They nevertheless          agreed that Mottolo would  dispose of the containers.   The drums          and barrels Mottolo picked up at  Lewis were always sealed and he          never saw what was in them when he picked them up.                    Mottolo, or  one of his employees,  would transport the          drums and barrels  to the site on  Mottolo's truck and then  dump          them.   After ten to fifteen loads accumulated, George Frotten, a          Mottolo employee, would  bulldoze the containers in an attempt to          level off the site.   Dirt was then placed over them.  During the          bulldozing,  barrels and  drums would  be crushed  and flattened,          causing them to rupture  and spill their contents into  the soil.          Mottolo  knew that the containers broke during the bulldozing and          that  their contents would spill  into the soil.   Mottolo stated          that "[w]hen a drum broke open, you would have reds or blues. . .          .   It would look like shoe polish."   He stated that some of the          contents  would "sit there and  mass."  Mottolo  once brought two          tank  trucks of liquid waste from Quinn and pumped their contents          directly into the dump site.                    D.  The District Court's Analysis                    D.  The District Court's Analysis                        _____________________________                    In  finding  that   Mottolo's  acts  were   "inherently          injurious,"  the   district   court  applied   the   "exceptional                                         -11-                                          11          circumstances" test  articulated by the New  Jersey Supreme Court          in  Morton Int'l, Inc. v. General Accident  Ins. Co., 134 N.J. 1,              __________________    __________________________          629  A.2d 831  (1993),  rather than  New Hampshire's  "objective"          test.    Mottolo,  830 F.  Supp.  at  664.   The  district  court                   _______          distinguished the  Vermont Mutual-Scanlon line  of cases, stating                             ______________ _______          that "'environmental-pollution litigation should  generally [not]          be  included  in  that  category   of  cases  .  .  .   in  which          reprehensible  conduct justifies  a presumption  that injury  was          intended.'"   Id.  at  664 (quoting  Morton,  134 N.J.  at  86).5                        __                     ______          Applying   the   Morton  standard,   the  court   listed  several                           ______          "exceptional  circumstances" that enabled  it to  infer Mottolo's          subjective intent to injure.  Id. at 664-65.                                          __                    The  district court was bound  to apply the  law of New          Hampshire  and erred in  not doing so.6   It is perhaps plausible          that, in applying Morton,  the district court was expressing  its                            ______          belief that New Hampshire courts would distinguish Vermont Mutual                                                             ______________                                        ____________________          5   The  rationale for  the distinction  is that  "'insureds held          responsible  for environmental  pollution  vary significantly  in          their degree  of  culpability for  the harm  caused by  pollutant          discharge.'"  Mottolo, 830  F. Supp. at 664 (quoting  Morton, 134                        _______                                 ______          N.J.  at 86).   Therefore,  "'[a] general rule  in environmental-          pollution coverage litigation that  would permit intent to injure          to  be presumed  simply on  the basis of  a knowing  discharge of          pollutants would be unjustified.'"  Id. (quoting Morton, 134 N.J.                                              __           ______          at 86).   Regardless of the merits of this  proposition, there is          no basis in Vermont Mutual and its progeny for inferring that the                      ______________          New  Hampshire Supreme Court would adopt  it.  Rather, the law of          New Hampshire, as evolved from Vermont Mutual through Scanlon and                                         ______________         _______          Foreman,  is clear.    The Court  applies  an objective  test  to          _______          determine whether  the causation of injury was an "accident" and,          therefore, an "occurrence" for insurance coverage purposes.           6  We note that the "exceptional circumstances"  standard applied          by the district court was actually more favorable to Mottolo than          New Hampshire's objective, reasonable person standard.                                            -12-                                          12          and its  progeny and  apply the Morton  standard.   In any  case,                                          ______          however,  as  discussed below,  we  find  incorrect the  district          court's  premise for  distinguishing the  New Hampshire  cases --          that they relied  on the "reprehensible" nature of the claimant's          conduct  to justify the presumption  of intent to  injure.7  Once          the premise falls, so does the justification for using a standard          other than that expressly pronounced by the New Hampshire Supreme          Court.                    E.  Analysis                    E.  Analysis                        ________                    The  proper  question,  under  New  Hampshire  law,  is          whether a reasonable person in Mottolo's shoes would foresee that          his dumping of  waste was certain to cause  some degree of injury          to  property.  See Fisher, 131 N.H.  at 773 ("A reasonable person                         ___ ______          would foresee that entering  into two contracts to sell  the same          property would inevitably lead  to the breach of at  least one of                                        ____________________          7   Vermont  Mutual did  involve  "reprehensible" conduct.    See              _______________                                           ___          Vermont Mutual, 128 N.H. at 521 (act of sexually assaulting young          ______________          boy inherently injurious because psychological injury  certain to          result).   In Fisher,  however, the  New Hampshire  Supreme Court                        ______          held  that  the sellers'  act of  signing  two purchase  and sale          agreements  for his  home  was inherently  injurious because  the          sellers would  inevitably have  to breach  one of  the contracts.          Fisher, 131 N.H.  at 773.   Even a willful  breach of a  contract          ______          cannot properly  be termed "reprehensible" conduct; certainly not          on  par  with  the  conduct  at issue  in  Vermont  Mutual.    In                                                     _______________          Jespersen, the Court  held that the  claimant's discharge of  his          _________          business partner was inherently  injurious because some degree of          mental  and   physical  distress   was  a   natural  consequence.          Jespersen,  131 N.H.  at 261.   The  discharge  of a  partner, by          _________          itself, is not "reprehensible" conduct.  Moreover, the Court went          so  far as  to  note  that  even  a  justifiable  termination  is                                               ___________          inherently injurious.  Id. (emphasis added).  In summary, the New                                 __          Hampshire  Supreme   Court  has   never  linked   its  objective,          "inherently injurious" standard to the "reprehensible" nature  of          any of the claimants' conduct.                                         -13-                                          13          the  two   contracts.").     The  New  Hampshire   Supreme  Court          "determine[s] whether an injury was the result of an accident not          by considering 'the character of the act viewed in isolation, but          .  . .  the character of  the act  viewed, with  reference to the                                                     ______________________          insured, as  a cause  of injury.'"   Jespersen,  131 N.H.  at 260          _______                              _________          (emphasis  added)  (quoting Vermont  Mutual,  128  N.H. at  524).                                      _______________          "[T]he  Court does not look to the actor's subjective intent that          the  result in question occur,  but rather, the  Court 'may infer          that the  actor's state  of  mind was  the same  as a  reasonable          person's state of  mind would  have been.'"   King v.  Prudential                                                        ____     __________          Property and Cas. Ins.  Co., 684 F. Supp. 347, 349  (D.N.H. 1988)          ___________________________          (quoting W. Keeton,  D. Dobbs, R. Keeton, &  D. Owen, Prosser and                                                                ___________          Keeton on the Law of Torts   8, at 35-36).          __________________________                    Although the  district court applied an incorrect legal          standard, our application of  the proper legal standard leads  to          the same result as that reached by the district court.  Under New          Hampshire's  objective  standard,  Mottolo's  haphazard  dumping,          bulldozing and burying of  drums containing chemical waste would,          at  first blush,  appear objectively certain  to result  in "some          injury" to adjacent property.8   During the routine bulldozing of          the containers, they would  be crushed, flattened, and punctured,          causing  their  contents  to  spill  into  the  soil.    The  EPA          ultimately recovered  from  the site  more than  1,650 drums  and                                        ____________________          8  We note that it  is not necessary that it be certain  that the          act cause  the particular injury  alleged; it  is only  necessary          that it was certain to  cause some injury.  Scanlon, 638  A.2d at                                        ____          _______          1249.                                         -14-                                          14          other smaller containers which  held toxic, flammable, corrosive,          irritant and  explosive materials.9   Mottolo was aware  that the          containers  were leaking into the soil.  On one occasion, Mottolo          pumped two tanks of liquid waste directly into the soil.  Because          the  site is located adjacent  to an intermittent  stream, it was          foreseeable  that whatever  was being  dumped would find  its way          into the waters of the stream.10                      Mottolo  argues, however, that  he did not  know he was          dumping hazardous waste.   The  test under New  Hampshire law  is          whether a  reasonable person  under the circumstances  would have          known that he was dumping harmful substances.  See Jespersen, 131                                                         ___ _________          N.H. at  260; Fisher, 131  N.H. at 773.   The facts  presented on                        ______          summary judgment,  viewed most  favorably  to Mottolo,  establish          that a reasonable person under the circumstances would have known          that he was dumping some form of hazardous substances, or, at the          least, that the  substances that were injurious to the  land.  As          to this, there is no genuine factual dispute.                    Mottolo was  in the  business of cleaning,  among other          things, cesspools  and grease traps, for  approximately two years          prior to his contracting  with Quinn.  Mottolo disposed  of waste          accumulated from those operations  -- generally sand, grease, and                                        ____________________          9   The hazardous  chemicals identified by  the EPA  at the  site          included  acetone,  toluene,   trichlorethylene,  xylene,   butyl          acetate,  methanol,  methylene  chloride,   methyl  methacrylate,          methyl ethyl ketone, and methyl isobutyl ketone.          10   Investigators  discovered  an upswelling  of groundwater  in          several locations between the site and a creek downhill with odor          and color consistent with those at the site.                                           -15-                                          15          sewage -- by taking the waste to a contractor, or by  discharging          the sewage  into the  city sewer  system through  licensed spots.          Prior to  his relationships with  Quinn and Lewis,  then, Mottolo          had  at  least some  rudimentary  knowledge of  how  the official          system for disposing of waste operated.                    Mottolo  knew   Quinn  manufactured  shoe   polish  and          polyurethane  and that Lewis operated a solvent factory.  A Quinn          employee described  the polyurethane it needed  disposed as "very          thick  -- it  looks like  wax."   Mottolo's agreement  with Lewis          began when a Lewis employee called him and said that Lewis had "a          lot of  solvent and were looking  . . . to  get rid of  it."  The          Lewis employee  asked Mottolo if  he "had a  means to get  rid of          some solid stuff."  Mottolo told him that he had a dump, but that          he  did not have  a permit.  Apparently,  this was sufficient for          Lewis.  Lewis always paid Mottolo in cash, no invoices were used,          and Lewis never wanted any receipts.  Lewis' clandestine behavior          would  suggest to a reasonable business person that something was          amiss, but Mottolo made  no attempt to ascertain the  identity of          the waste he was hauling.                    Mottolo knew that the  containers were bulldozed at the          site, causing their  contents to spill out the soil.  He observed          drums leak  and burst at  the site and he  knew that some  of the          waste  that leaked  at  the site  consisted  of a  thick  "goopy"          substance and  a "rancid" "super, super  strong" smelling liquid.          Mottolo  disposed of  approximately 1,650  drums and  other small          containers of waste at the site over a three to four year period.                                         -16-                                          16                    Based  on these facts, we think there can be no genuine          dispute  that  a  reasonable  person  in  Mottolo's  shoes,  with          Mottolo's  experience,  would  have  known that  he  was  dumping          substances  that were certain to cause "some degree" of injury to          adjacent property.                                           -17-                                          17                    Mottolo  makes one  last stand,  however, arguing  that          regardless of what  is known  today, a reasonable  person in  the          mid-1970s  would not  have  believed that  dumping the  waste was          inherently injurious.   We agree  that the proper  test looks  to          what  a reasonable  person, at  the time,  would have  known with          respect  to  the injurious  nature of  his  acts.   The defendant          insurance companies have provided  evidence of the actual harmful          effects of the  dumping on  the site and  nearby water  supplies.          The  defendants have  also provided,  as noted  above, sufficient          evidence to  establish that a reasonable person  would have known          that he was dumping  hazardous materials.  This evidence  is more          than sufficient to shift  the burden to Mottolo to  establish the          existence  of a  genuine issue  of material  fact  concerning the          "state  of the  art" (or,  more precisely,  the state  of general          knowledge) with respect to hazardous waste in the mid-1970s.  See                                                                        ___          Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.  Ct. 2505, 91          ____________     _______          L.Ed.2d 202 (1986).11                      Such evidence might  include expert affidavit testimony          that the state of scientific evidence was insufficient during the          relevant time  period and  that such  dumping was  not considered          "inherently injurious."   Mottolo has presented no  such evidence                                        ____________________          11  Because the underlying action against Mottolo by the EPA  and          the  State of New Hampshire  was initiated in  federal court, the          burden shifting framework of New Hampshire's declaratory judgment          act, N.H. Rev. Stat. Ann.    491.22, does not apply.  See Town of                                                                ___ _______          Allenstown,  et al.  v. National  Casualty Company,  No. 94-1106,          ___________________     __________________________          slip op. at  8-9 (1st Cir. Sept. 30, 1994).   The ultimate burden          of  establishing coverage  therefore  remains on  the  plaintiff,          Mottolo.                                           -18-                                          18          and has failed to establish a genuine issue of material fact with          respect  to the  state  of the  art  regarding knowledge  of  the          dangers of hazardous waste  dumping in the 1970s.   His statement          that  he  did  not  believe  the  substances  were  hazardous  is          insufficient by itself to defeat the motion.  See Fed. R. Civ. P.                                                        ___          56.                                         IV.                                         IV.                                      CONCLUSION                                      CONCLUSION                    Although  we find  that the  district court  applied an          incorrect legal standard, we agree with its conclusion that there          is no genuine issue of material fact that the intentional dumping          of  hazardous  waste  by  the plaintiffs-appellants  was  not  an          "occurrence" covered  by the  pertinent insurance policies.   The          decision of  the  district court  granting  defendants-appellees'          motion for summary judgment is therefore                     Affirmed.                       Affirmed.                    ________                                         -19-                                          19
