                             FOURTH DIVISION
                             ELLINGTON, P. J.,
                        DILLARD and MCFADDEN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   August 31, 2016




In the Court of Appeals of Georgia
 A16A0705. COLUMBIA CASUALTY COMPANY                                         v. JE-027
     PLANTATION PIPE LINE COMPANY.

      ELLINGTON, Presiding Judge.

      Plantation Pipe Line Company filed this action in the Superior Court of Fulton

County against five of its excess liability insurers, including Columbia Casualty

Company, seeking relief including a declaratory judgment as to each insurer’s

respective share of Plantation’s losses arising from a pipeline leak. See Plantation

Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. 302 (780 SE2d 501) (2015), cert.

denied April 26, 2016 (appeal by Plantation from order granting summary judgment

in favor of another of Plantation’s excess liability insurers, Stonewall Insurance

Company). Plantation and Columbia filed cross-motions for summary judgment. The

trial court granted Plantation’s motion and denied Columbia’s cross-motion.
Columbia appeals both rulings, contending that the trial court erred in allocating all

of Plantation’s losses to the policies that were in place at the time of the fuel leak,

rather than allocating Plantation’s losses pro rata among the multiple, successive

policies that were issued to Plantation over the thirty-year period during which the

environmental contamination continued to accrue. When Plantation’s losses are

properly allocated, Columbia contends, the losses attributable to the policy period of

the Columbia policy as a matter of law did not reach the attachment point of the

policy, which is a prerequisite to coverage under the policy. For the reasons explained

below, we affirm.




                                          2
      The record shows the following relevant undisputed facts.1 On April 2, 1976,

Plantation employees discovered that turbine fuel had leaked from an underground

Plantation pipeline located in Cabarrus County, North Carolina. Plantation Pipe Line

Co. v. Stonewall Ins. Co., 335 Ga. App. at 303. Within 24 hours, Plantation repaired

the pipeline and cleaned up the leak. Id. Without resorting to insurance, it

compensated the only affected landowner $50. Id. More than thirty years later, on

April 3, 2007, one of Plantation’s workers found contaminated soil during



      1
         Summary judgment is proper “if 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 is entitled
to judgment as a matter of law [.]” OCGA § 9–11–56(c).
       Summary judgments enjoy no presumption of correctness on appeal, and
       an appellate court must satisfy itself de novo that the requirements of
       OCGA § 9–11–56(c) have been met. In our de novo review of the grant
       [or denial] of a motion for summary judgment, we must view the
       evidence, and all reasonable inferences drawn therefrom, in the light
       most favorable to the nonmovant.
(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a)
(697 SE2d 779) (2010).
       When, as in this case, the parties file cross-motions for summary
       judgment, “each party must show that there is no genuine issue of
       material fact regarding the resolution of the essential points of inquiry
       and that each, respectively, is entitled to summary judgment; either
       party, to prevail by summary judgment, must bear its burden of proof.
(Citation and punctuation omitted.) Plantation Pipe Line Co. v. Stonewall Ins. Co.,
335 Ga. App. at 302.

                                           3
maintenance of Plantation’s pipeline, and the contamination was traced to the 1976

leak.

        Plantation filed this action in 2012, seeking recovery for amounts it has spent

to settle third party claims, amounts it has expended for remediation, and projected

costs to complete remediation. A Plantation executive estimates that Plantation’s

costs through 2030 will total between $5.6 million and $8.6 million.

        The record shows that, at the time the initial fuel leak occurred in Cabarrus

County in April 1976, Plantation had $1,000,000 in primary coverage under a

comprehensive general liability (“CGL”) policy issued by American Reinsurance

Company (subject to a self-insured retention of $100,000), and had excess coverage,

including $1 million under an umbrella policy issued by Lexington Insurance

Company. Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. at 302. In late

1975, Columbia issued an “Excess Third Party Liability Policy” to Plantation for the

period of January 24, 1976 through November 30, 1976. Unless otherwise provided,




                                           4
the Columbia excess policy incorporated the terms of the Lexington umbrella policy.2

In the Insuring Agreements in the Lexington umbrella policy, Lexington agreed

      [t]o pay on behalf of [Plantation] the ultimate net loss in excess of the
      underlying insurance[ (the self-insured retention and the primary CGL
      policy issued by American)], which [Plantation] shall become legally
      obligated to pay as damages by reason of the liability imposed upon
      [Plantation] by law . . . because of . . . [p]roperty [d]amage . . . caused by
      or arising out of an occurrence.


      In the Insuring Agreements in the Columbia excess policy, Columbia agreed

to indemnify Plantation for loss in excess of the limits of liability of the Lexington




      2
        The Columbia policy provides:
      The provisions of the immediate underlying policy are incorporated as
      a part of this policy except for any obligation to investigate and defend
      and pay for costs and expenses incident to the same, the amount of the
      limits of liability, any “other insurance” provision and any other
      provisions therein which are inconsistent with the provisions of this
      policy.
The Columbia policy defines the “Immediate Underlying Policy” as “the policy of the
underlying insurance which provides the layer of coverage, whether primary or
excess, immediately preceding the layer of coverage provided by this policy.” It is
undisputed that the Lexington policy alone met this definition.

                                            5
policy, which was the “underlying insurance.”3 The Insuring Agreements in the

Columbia policy further provide as follows:

      This policy applies to injury or destruction taking place during this
      policy period, provided that when the immediate underlying policy
      insures occurrences taking place during its policy period, instead of
      injury or destruction taking place during its policy period, then this
      policy likewise applies to occurrences taking place during this policy
      period[,] and “occurrences” is substituted for “injury or destruction” in
      Part III of this policy [regarding reduction of the aggregate].


Because the Lexington policy “insures occurrences taking place during its policy

period,” therefore, the Columbia policy “likewise applies to occurrences taking place

during [the] policy period[.]” The Lexington policy, and therefore the Columbia

policy, covers “[p]roperty [d]amage . . . caused by or arising out of an occurrence.”

As the definitions for “property damage” and “occurrence” set forth in the Lexington

policy are specifically incorporated in the Columbia policy,

      [w]ith respect to . . . [p]roperty [d]amage[,] the term “[o]ccurrence”
      means an event, including continuous or repeated exposure to
      conditions, which result in . . . [p]roperty [d]amage neither expected nor


      3
        The Columbia policy defines the “Underlying Insurance” as “the insurance
policies listed in item 3 in the declarations[.]” The Lexington policy was listed in item
3.

                                           6
      intended from the standpoint of the insured. All such exposure to
      substantially the same general conditions shall be deemed one
      occurrence.


      The declarations page shows that the Columbia policy of excess umbrella

liability was in the amount of “$500,000 CSL [Combined Single Limit] per

occurrence/aggregate being 8% [sic4] of $4,000,000 CSL per occurrence/aggregate

excess of $1,000,000 CSL per occurrence/ aggregate.” It is undisputed that the

attachment point of the Columbia excess policy was $2 million.5

      1. Columbia contends that it is entitled to judgment as a matter of law that the

policy it issued to Plantation is not triggered by the claims at issue in this case.

      Columbia points to evidence that the environmental contamination caused by

the occurrence at issue, the April 1976 fuel leak, continued to unfold (and even to this

day continues to unfold), as the quantity of pollutant that Plantation failed to clean

up in 1976 migrated downward through the soil, reached flowing groundwater and

      4
         It is undisputed that $500,000 represents 12.5 percent, not 8 percent, of
$4,000,000, the total in excess coverage provided by Columbia and four other
carriers.
      5
        See J. Stephen Berry et al., Ga. Property & Liability Insurance Law, § 8:2
(updated August 2015) (explaining that excess liability policies are typically triggered
only by the exhaustion of all underlying limits and, therefore, liability of an excess
insurer generally will “attach” only when any underlying policies are exhausted).

                                           7
formed a plume in the water table, where it contaminated clean water that made

contact with the contaminated water, and that such contamination of previously clean

water will continue to occur until the remediation process is complete. Columbia

argues that this is typical of environmental contamination cases because

environmental contamination by its nature occurs over time, gradually or

progressively causing personal injury or property damage, which may be unknown

to the injured parties for years.

      Columbia points to evidence that from 1976 through 2005 several different

insurers issued liability policies to Plantation. Over time, the overall coverage profile

varied, as the limits of the different policies, the scheme of the different layers of

coverage (self-insured retention, primary coverage, umbrella coverage, excess

coverage, etc.), and areas of overlapping coverage all varied from year to year.

Columbia argues that it is typical of environmental contamination cases that, because

of the progressive nature of environmental contamination, the resulting personal

injury or property damage overlaps multiple successive insurance policy periods of

the insured’s liability coverage. And Columbia contends that in this case multiple

successive insurance policies were potentially triggered during later policy periods

by the unfolding environmental damage that originated with the 1976 pipeline leak

                                           8
and that Plantation’s losses from remediation costs6 and third-party claims should be

allocated among those policies by the Court.

      Columbia argues that the legal issue of the appropriate method of allocation is

one of first impression in Georgia. Columbia contends that

      the legal issue this Court must resolve is the appropriate trigger theory
      to apply to a claim involving progressive, latent “property damage” that
      took place over a three decade long period so that it can determine
      which policies are applicable to the damages at issue, as well as the
      extent of coverage owed, and the sequence in which the policies should
      apply.




      6
        Columbia does not dispute that the cost to Plantation to perform remediation
of the contamination is “property damage” under the policy, that is, money that
Plantation is legally obligated to pay as damages by reason of liability imposed by
law because of property damage caused by or arising out of the 1976 pipeline leak.
See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability
Among Triggered Insurance Policies,” 1999 BYU L. Rev. 1215, 1223-1224 (I) (A)
(1) (1999) (“[C]ourts have typically found contamination of the environment to fall
within the ambit of [CGL policies’] property damage clause. Similarly, most courts
conclude that any monies a [potentially responsible party] pays to comply with
government orders under [the federal Comprehensive Environmental Responsibility,
Compensation and Liability Act] constitute property damages covered under CGL
policies. This holds true even when the government orders cleanup of the [potentially
responsible party’s] own property.”) (footnotes omitted).

                                         9
Columbia urges the Court to adopt the so-called “continuous trigger theory.”7

      7
          According to one commentator, strategies for apportioning liability among
multiple insurance policies for losses from environmental contamination can all be
divided into two theoretical frameworks: horizontal allocation or vertical allocation.
See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental Liability
Among Triggered Insurance Policies,” 1999 BYU L. Rev. at 1231 (I) (B). In
horizontal allocation, including “continuous trigger” allocation, liability is assigned
along a horizontal time axis to all policy periods on the risk over the time period of
continuing environmental contamination; in vertical allocation, liability is assigned
along a vertical coverage axis to all insurers within a selected policy period, which
is not necessarily the policy period in which an event like a fuel spill occurred. Id. at
1231, 1233-1234, 1241, 1246-1247. See e.g. Towns v. Northern Security Ins. Co., 964
A2d 1150, 1163-1165 (III) (Paras. 25-31) (Vt. 2008) (The trial court properly applied
a continuous-trigger test to determine whether an injury-producing occurrence gave
rise to coverage under a policy in a case involving long term environmental damage
that occurred continuously from the date of exposure or initial injury through
successive policy periods even though the damage was not manifested until after the
policy had expired.).
        With a continuous trigger, a long-tail injury is deemed to have
        “occurred” at each and every point of time at which there was
        contributing contamination. Essentially, the courts create a rebuttable
        presumption that one injury or occurrence happened every year from the
        date the gradual injury began to the date of the claim. As a result, every
        insurance policy in effect during the course of the environmental injury
        is potentially liable on the claim. A continuous trigger has the effect of
        maximizing coverage because property damage that is continuous
        throughout successive policy periods will implicate all policies in effect
        during those periods.
(Footnotes omitted.) Rebecca M. Bratspies, “Splitting the Baby: Apportioning
Environmental Liability Among Triggered Insurance Policies,” 1999 BYU L. Rev.
at 1230-1231 (I) (B). We note that the Court of Appeals for the Eleventh Circuit
certified to the Supreme Court of Georgia a question regarding the trigger of coverage
in cases involving pollution. Boardman Petroleum v. Federated Mut. Ins. Co., 269
Ga. 326 (498 SE2d 492) (1998). The Supreme Court decided the case on other

                                           10
Columbia argues that Plantation’s total financial loss from the latent, continuous, and

progressive property damage that took place over three decades should be allocated

pro rata among each successive policy period from 1976 to 2007, when the

contamination was discovered and became “manifest.” When this is done, Columbia

argues, the amount of loss properly allocated to the policy period of the policy it

issued to Plantation is far less than the $2 million attachment point for the excess

coverage it provides.8 As a result, Columbia contends, its policy is not triggered as


grounds, leaving the trigger-of-coverage question unresolved.
      8
         Specifically, Columbia avers that successive policies were issued to
Plantation “from January 1, 1976 through April 30, 2005, a period of twenty-nine
(29) years” and argues that “[t]o reasonably allocate the amount of property damage
attributable to these successive policies this Court should employ a pro rata time on
the risk formula; i.e., divide $8.6 million . . . cost to remediate the site by the
twenty-nine (29) years of successive policy periods. This formula results in property
damage of $296,551.72 being allocated to each successive policy, starting with
Columbia’s policy period – clearly, a loss that will not trigger this excess Policy.” As
evidence that there are 29 years of successive policy periods among which the loss
can be that allocated, Columbia points to the affidavit of a long time employee of
Risk International Services, Inc. (“RIS”), a company that was hired to reconstruct
Plantation’s insurance coverage for the period 1950 to 2005 and to a chart prepared
by RIS showing the insurers and layers of coverage for each year. See Plantation
Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. at 304.
       Although it is not determinative of our decision for the reasons explained
below, we note that Columbia contends that it is not required to introduce the other
allegedly triggered policies to prevail on its “continuous trigger” argument. Even if
we were to hold that it is appropriate to employ any of the various strategies to
allocate a loss among triggered policies, as Columbia asks us to do, however, the

                                          11
a matter of law under the continuous trigger theory. Moreover, Columbia argues, the

result would be the same if the Court were to adopt in the alternative the so-called

“injury in fact” trigger theory.

      Even if this Court were inclined to adopt the continuous trigger theory,9

application of this theory is premised on the assumption that the Columbia policy

contains language that limits coverage to property damage that takes place during the




specific provisions of the various policies would be relevant. For example, by its
terms, any policy containing an absolute pollution exclusion would not be triggered
by the sort of environmental contamination injury at issue here. See Rebecca M.
Bratspies, “Splitting the Baby: Apportioning Environmental Liability Among
Triggered Insurance Policies,” 1999 BYU L. Rev. at 1225-1226 (I) (A) (1), 1259,
1262 (IV) (B) (In 1986, standard CGL policies began including an absolute pollution
exclusion, with the result that after that point an insured who could not or did not
purchase pollution coverage in addition to its CGL policy would be considered
uninsured or self-insured for such claims.). Columbia’s allocation of Plantation’s
projected loss of up to $8.6 million across 29 years of successive policies
unaccountably assumes that none of the other policies contained an absolute pollution
exclusion.
      9
        See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental
Liability Among Triggered Insurance Policies,” 1999 BYU L. Rev. at 1238-1239 (II)
(A) (3) (According to this commentator, one weakness of horizontal allocation
strategies, like the continuous trigger theory, is that they implicitly read a pro rata
allocation clause into the CGL policies, contrary to the general rule that pro rata
clauses, which serve to limit an insurer’s indemnity obligation to a insured, are
typically considered exclusionary provisions and, as such, should not be imputed into
an insurance contract.).

                                          12
policy period. But, unlike more contemporary standard CGL policies,10 the Columbia

policy and the provisions of the Lexington policy that it expressly incorporates do not

provide that the policy applies only to property damage that occurs during the policy

period. As quoted extensively above, the insuring agreement in the Columbia policy

provides that the policy applies to injury taking place during the policy period unless,

instead of insuring injury taking place during the policy period, the Lexington policy

insures occurrences taking place during the policy period, which it does. In this case,

then, the Columbia policy expressly “applies to occurrences taking place during [the]

policy period.” Columbia could have drafted the substitution clause to provide that,

if the underlying policy insures occurrences taking place during the policy period,

then the Columbia policy applies to occurrences taking place during the policy period



      10
          In a recent Supreme Court of Georgia decision, the Court noted that, in a
standard CGL policy, the insurer now expressly
       promise[s] to pay those sums that the insured becomes legally obligated
       to pay as damages because of bodily injury or property damage to which
       this insurance applies. The [standard] policy clarifies that this insurance
       applies to bodily injury and property damage only if: (1) [t]he bodily
       injury or property damage is caused by an occurrence that takes place in
       the coverage territory; and (2) [t]he bodily injury or property damage
       occurs during the policy period.
(Citations and punctuation omitted; emphasis supplied.) Taylor Morrison Svcs., Inc.
v. HDI-Gerling Am. Ins. Co., 293 Ga. 456, 457 (746 SE2d 587) (2013).

                                          13
to the extent of injury taking place during the policy period.11 It did not do so.

Therefore, contrary to Columbia’s assertion, this case does not present us with the

issue of how to allocate this type of loss among multiple, successive policies that each

cover property damage that occurs during the policy’s policy period. Instead, we are

presented with a policy that by its plain terms covers property damage caused by an

occurrence, provided the occurrence takes place during the policy period and

provided the insured’s loss exceeds the attachment point of the policy. And it is

undisputed that an occurrence took place during Columbia’s policy period (the fuel

leak in April 1976), that property damage occurred as a result of the occurrence, and

that Plantation’s losses have exceeded the $2 million attachment point of the policy’s




      11
         See Rebecca M. Bratspies, “Splitting the Baby: Apportioning Environmental
Liability Among Triggered Insurance Policies,” 1999 BYU L. Rev. at 1222 (I) (A)
(Between 1966 and 1986, most CGL policies defined occurrence as “an accident,
including injurious exposure to conditions, which results, during the policy period,
in bodily injury or property damage neither expected nor intended from the standpoint
of the insured.”) (punctuation and footnote omitted).

                                          14
excess coverage. Columbia’s argument that its policy was not triggered fails.12 The

trial court did not err in denying Columbia’s motion for summary judgment.

      2. Columbia contends that the trial court erred in granting Plantation’s motion

for summary judgment. Specifically, Columbia argues that “when the continuous

trigger and/or injury-in-fact theories of allocation are applied to this case” its policy

is not triggered as a matter of law. As explained in Division 1, supra, this argument,

fails because the Columbia policy does not contain language that limits coverage to

property damage that takes place during the policy period, which underpins


      12
         See Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 926 FSupp. 1566,
1577-1578 (2) (S.D. Ga. 1995) (Where a CGL policy defined an occurrence as
continuous or repeated exposure to a condition that results in property damage which
occurs during the policy period and that is not expected nor intended from the
standpoint of the insured, there was an occurrence at the moment gasoline was
released into the ground from an underground storage tank. Because the policy did
not expressly provide that it applied only where an occurrence was discovered during
the policy period, the insurer could not disclaim coverage on the basis that the
occurrence was not manifest during the policy period.), reversed on other grounds,
150 F3d 1327 (11th Cir. 1998); S. Carolina Ins. Co. v. Coody, 813 FSupp. 1570,
1575-1577 (1) (a) (M.D. Ga. 1993) (Where a CGL policy defined an occurrence as
an accident, including continuous or repeated exposure to substantially the same
general harmful conditions, where the policy unambiguously provided that there was
coverage only if an injury occurred within the policy period, and where improper
releases of toxic industrial waste into the soil occurred after the policy period went
into effect, which were discovered before the policy period ended, an occurrence took
place that triggered coverage, under any trigger-of-coverage rule – the exposure,
manifestation, double trigger, continuous trigger, or actual injury rule.).

                                           15
Columbia’s allocation argument. In a related vein, Columbia argues that Plantation

failed to identify any evidence that more than $2 million worth of property damage

occurred during the coverage period for the Columbia policy, again restating its

argument that its policy was not triggered. This argument likewise fails for the

reasons already explained above.

      In addition, Columbia contends that Plantation’s reliance on the so-called

“known loss” doctrine13 is misplaced because the doctrine is not the law of Georgia


      13
          As one court has explained the known loss doctrine:
       If the insured knows or has reason to know, when it purchases a CGL
       policy, that there is a substantial probability that it will suffer or has
       already suffered a loss, the risk ceases to be contingent and becomes a
       probable or known loss. Where the insured has evidence of a probable
       loss when it purchases a CGL policy, the loss is uninsurable under that
       policy (unless the parties otherwise contract) because the risk of liability
       is no longer unknown.
(Citations and punctuation omitted.) Outboard Marine Corp. v. Liberty Mut. Ins. Co.,
607 NE2d 1204, 1210 (Ill. 1992). See S. Carolina Ins. Co. v. Coody, 813 FSupp. at
1577-1578 (1) (b) (Where environmental damage was discovered during an official
investigation the year before the insured obtained coverage for its property, coverage
was not triggered under any of the five approaches used for determining whether an
occurrence took place during the policy period because, under every approach, an
insured is not entitled to coverage under a policy obtained after the insured is aware
of an occurrence prior to the policy period.); see also J. Stephen Berry et al., Ga.
Property & Liability Insurance Law, § 3:14 (updated August 2015) (explaining that
“Georgia courts have neither adopted nor rejected the ‘known loss’ doctrine” and
noting that many modern policies incorporate the doctrine through specific policy
language) (footnote omitted).

                                         16
and because the doctrine is inapplicable, given the fact that “Plantation judicially

admitted it did not know petroleum product and contaminants remained subsurface

at the Site after it repaired the leak in April, 1976.” It may be reasonable to argue that

a liability policy issued by an insurer after an insured becomes aware of an

occurrence should not provide coverage for losses arising from the occurrence. But

the issue whether some hypothetical insurer other than Columbia could successfully

assert a known-loss defense is not before us. Accordingly, this argument presents no

basis for reversing the trial court’s order granting Plantation’s motion for summary

judgment.

      Judgment affirmed. McFadden, J., concurs, and Dillard, J., concurs in

judgment only.




                                           17
 A16A0705.       COLUMBIA         CASUALTY          COMPANY          v.

       PLANTATION PIPE LINE COMPANY.



      DILLARD, Judge, concurring in judgment only.

      I concur in judgment only because I do not agree with all that is said in the

majority opinion. As a result, the majority’s opinion decides only the issues presented

in the case sub judice and may not be cited as binding precedent. See Court of

Appeals Rule 33 (a).
