15-2047(L)
Olin Corp. v. OneBeacon Am. Ins. Co.


                                    In the
                        United States Court of Appeals
                           For the Second Circuit
                                       __________________

                                       August Term, 2016

                (Argued: January 12, 2017           Decided: July 18, 2017)

        Docket No. 15-2047(L); 15-2057 (XAP); 15-2757 (CON); 15-2763 (XAP)
                                __________________

                                       OLIN CORPORATION,

                 Plaintiff-Counter-Defendant-Appellee-Cross-Appellant,

                                               V.


   ONEBEACON AMERICA INSURANCE COMPANY, REFERRED TO IN THIS LITIGATION AS
                 COMMERCIAL UNION INSURANCE COMPANY,

                           Defendant-Appellant-Cross-Appellee,

  INSURANCE COMPANY OF NORTH AMERICA, HANOVER INSURANCE COMPANY, AS SUC-
    CESSOR TO MASSACHUSETTS BONDING AND INSURANCE COMPANY, AMERICAN RE-
   INSURANCE COMPANY, CERTAIN UNDERWRITERS AT LLOYDS LONDON AND LONDON
MARKET INSURANCE COMPANIES, LONDON MARKET INSURANCE COMPANIES, COMMER-
   CIAL UNION INSURANCE COMPANY, AS SUCCESSOR TO EMPLOYERS LIABILITY ASSUR-
ANCE CORPORATION LTD. AND EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY
AMERICA, CONTINENTAL CASUALTY COMPANY, C.E. HEALTH COMPENSATION & LIABIL-
  ITY INSURANCE CO., AS SUCCESSOR TO FALCON INSURANCE COMPANY, SUCCESSOR TO
  EMPLOYERS SURPLUS LINES INSURANCE COMPANY, FEDERAL INSURANCE COMPANY,
FIREMAN’S FUND INSURANCE COMPANY, GREAT AMERICAN INSURANCE COMPANY, LEX-
INGTON INSURANCE COMPANY, LONDON & EDINBURGH INSURANCE COMPANY LIMITED,
 CAPITAL MARKETS ASSURANCE CORP., AS SUCCESSOR TO NATIONAL AMERICAN INSUR-
ANCE COMPANY OF NEW YORK, SUCCESSOR TO STUYVESANT INSURANCE COMPANY, NA-
   TIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, NORTH
RIVER INSURANCE COMPANY, ALLSTATE INSURANCE COMPANY A/S/O MARCO DEL GADO,
AS SUCCESSOR TO NORTHBROOK EXCESS AND SURPLUS INSURANCE COMPANY, EMPLOY-
 ERS INSURANCE COMPANY OF WAUSAU, ONEBEACON AMERICA INSURANCE COMPANY,
 FORMERLY REFERRED TO IN THIS LITIGATION AS COMMERCIAL UNION INSURANCE COM-
 PANY, AETNA CASUALTY & SURETY COMPANY, GENERAL REINSURANCE CORPORATION,
 GOVERNMENT EMPLOYEES INSURANCE COMPANY, GRANITE STATE INSURANCE COMPA-
 NY, HOME INSURANCE COMPANY, INDEMNITY INSURANCE COMPANY OF NORTH AMERI-
 CA, INTEGRITY INSURANCE COMPANY, GREENWICH INSURANCE COMPANY, AS SUCCES-
 SOR TO HARBOR INSURANCE COMPANY, NATIONAL CASUALTY COMPANY, TRANSIT CAS-
 UALTY COMPANY, AIU INSURANCE COMPANY, CONTINENTAL CORPORATION, GOVERN-
 MENT EMPLOYEES INSURANCE COMPANY, GRANITE STATE INSURANCE COMPANY, HAR-
BOR INSURANCE COMPANY, NATIONAL AMERICAN INSURANCE COMPANY OF CALIFORNIA,
AS SUCCESSOR TO STUYVESANT INSURANCE COMPANY, NATIONAL CASUALTY COMPANY,
  NEW YORK PROPERTY/CASUALTY INSURANCE SECURITY FUND, AMERICAN HOME AS-
                SURANCE COMPANY, CENTURY INDEMNITY COMPANY,


                                    Defendants,

                 OLIN-HUNT SPECIALTY PRODUCTS INCORPORATED,

                              Third-Party-Defendant.

                                __________________

Before:     HALL, LIVINGSTON, and DRONEY, Circuit Judges.
                              __________________

      Defendant-Appellant-Cross-Appellee OneBeacon American Insurance Com-
      pany (“OneBeacon”) appeals from two final judgments entered in favor of
      Plaintiff-Counter-Defendant-Appellee-Cross-Appellant       Olin    Corporation
      (“Olin”) in the United States District Court for the Southern District of New
      York (Griesa, J.). Olin cross-appeals from a grant of summary judgment in
      favor of OneBeacon on Olin’s bad faith claim brought under Massachusetts
      law. Olin pursued this insurance-coverage action against its insurers, includ-
      ing OneBeacon, concerning environmental contamination at Olin manufac-
      turing sites throughout the United States. This appeal arises from proceed-
      ings related to five particular manufacturing sites, and requires us to deter-
      mine, inter alia, the proper method for allocating loss at each site and decide
      whether OneBeacon may reduce the limits of its liability by those of any prior
      insurance policies within the same layer of coverage.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

                                __________________

                                CRAIG C. MARTIN (Mathew E. Price, Brian S. Scar-
                                brough, and Matthew J. Thomas, on the brief), Jen-
                                ner & Block LLP, Chicago, Illinois, for Plaintiff-
                                Counter-Defendant-Appellee-Cross-Appellant.

                                         2
                                BRYCE L. FRIEDMAN (Summer Craig, on the brief),
                                Simpson Thacher & Bartlett LLP, New York, New
                                York, for Defendant-Appellant-Cross-Appellee.
                                __________________


HALL, Circuit Judge:

      In this consolidated appeal, Defendant-Appellant-Cross-Appellee OneBeacon

American Insurance Company (“OneBeacon”) appeals from two judgments entered

pursuant to Federal Rule of Civil Procedure 54(b) in favor of Plaintiff-Counter-

Defendant-Appellee-Cross-Appellant Olin Corporation (“Olin”) in the United States

District Court for the Southern District of New York (Griesa, J.), awarding Olin

over $80 million in indemnification costs. OneBeacon appeals the district court’s

denials of its motions for summary judgment and the district court’s ruling adopting

particular special verdict interrogatories. Olin cross-appeals from a grant of sum-

mary judgment in favor of OneBeacon on Olin’s bad faith claim brought pursuant

Massachusetts General Laws Chapter 93A, Mass. Gen. Laws ch. 93A, § 2(a) (“Chap-

ter 93A”).

      Olin, a large chemical manufacturing company, brought this coverage action

against its insurers, including OneBeacon, seeking indemnification for environmen-

tal contamination at Olin manufacturing sites throughout the United States. This

case requires us to resolve, among other issues, the proper method for allocating

loss at each site when damage continues across a number of years and to decide

whether OneBeacon may reduce the limits of its liability by those of any other prior

insurance policies within the same layer of coverage.

                                         3
      For the reasons set forth below, the judgments of the district court are AF-

FIRMED IN PART, VACATED IN PART, AND REMANDED for                    further proceedings.1

                                      I.      BACKGROUND

          This appeal presents yet another round in a protracted insurance-coverage

dispute between the Olin Corporation (“Olin”) and its insurers, including OneBea-

con American Insurance Company (“OneBeacon”),2 for numerous environmental in-

surance claims. Olin first filed an insurance-coverage action in 1983 in the District

Court for the District of Columbia seeking indemnification for environmental dam-

age at Olin manufacturing sites throughout the United States, and the action was

transferred to the Southern District of New York. Because of the volume of claims

and locations involved, the district court chose to address coverage on a site-by-site

basis. This appeal arises out of the most recent of these site-specific proceedings,

concerning contamination at five Olin manufacturing sites: (1) McIntosh, Alabama

(“McIntosh”); (2) Fields Brook/Ashtabula, Ohio (“Fields Brook”); (3) Augusta, Geor-

gia (“Augusta”); (4) Rochester, New York (“Rochester”); and (5) Bridgeport Rental &

Oil Services in Bridgeport, New Jersey (“BROS”).




1More specifically, we affirm the jury and summary judgment findings as to OneBeacon’s liability to
Olin for costs incurred at all five of the manufacturing sites at issue here, but remand for calculation
of damages under the all sums approach dictated by In re Viking Pump, Inc., 52 N.E.3d 1144 (N.Y.
2016), and associated prejudgment interest. We further vacate and remand for the district court to
apply the OneBeacon insurance policies’ prior insurance provision and to determine the effect of
Olin’s prior settlements with its London Market Insurers on the recovery available under the One-
Beacon policies, in accordance with the analysis set forth in Part II.E of this opinion. Finally, we
affirm the judgment of the district court with respect to Olin’s Chapter 93A claim.

2   The term “OneBeacon” as used in this opinion refers also to each of that company’s predecessors.

                                                    4
    A.      THE MANUFACTURING SITES

         The McIntosh site is an Alabama property that was added to the National

Priority List (“NPL”) pursuant to the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (“CERCLA”), in 1984. The

NPL identifies polluted or potentially polluted sites for purposes of CERCLA en-

forcement by the United States Environmental Protection Agency (“EPA”). The

EPA divided the McIntosh site into two “operable units” relevant to this appeal: Op-

erable Unit 1 (“OU1”) and Operable Unit 2 (“OU2”).3 OU1 contains Olin manufac-

turing plants producing chlorine, caustic soda, and crop chemicals. OU2 encom-

passes a 65-acre natural basin adjacent to the plant, into which wastewater from

the plant was regularly discharged. Olin’s third-amended complaint, the operative

complaint here, relates exclusively to OU2. At trial, the parties stipulated that Olin

incurred $15,656,076.07 in cleanup and remediation costs for OU2 through Decem-

ber 31, 2014.

         The Fields Brooks site is located in Ohio and houses a plant that once pro-

duced the chemical “TDI.” Property damage at Fields Brook began in 1964 due to

the discharge of contaminated wastewater into a brook running through the proper-

ty, which in turn contaminated the brook’s sediments. 4 The parties stipulated that

Olin incurred $5,105,238.27 in costs through December 31, 2014.



3An “operable unit” is a “[t]erm for each of a number of separate activities undertaken as part of a
Superfund site cleanup.” App’x at 685.

4The parties stipulated that property damage at Fields Brook began in 1964, and the jury found that
the damage ended in 1978. App’x at 1829.


                                                 5
       The Augusta site holds a Georgia chlor-alkali plant that produced chlorine

and caustic soda. The operations at this site led to the continuous mercury contam-

ination of the surrounding groundwater and the ecosystem around the plant’s in-

take canal. The parties stipulated that Olin incurred $13,754,618.69 in costs for the

groundwater contamination and an additional $2,964,074.78 for cleanup of the in-

take canal through December 31, 2014.

       The Rochester site housed a plant that produced specialty organic chemicals.

Operations resulted in the continuous and repeated exposure of groundwater to

chemical contaminants. The parties stipulated that Olin incurred $16,418,746.53 in

relevant costs at this site through December 31, 2014.

       The BROS site involves a New Jersey property where Olin stored spent sul-

furic acid between 1968 and 1974.5 Olin and OneBeacon stipulated that Olin in-

curred $300,000 in costs through December 31, 2014.

       Beginning in 1984, Olin sent formal notices to OneBeacon and its other in-

surers identifying government orders requiring investigation and cleanup at various

Olin sites, including Fields Brook, Augusta, and McIntosh. In 1986, Olin sent One-

Beacon and other insurers a supplemental notice of claims concerning additional

sites, including the BROS and Rochester sites. The notices detailed Olin’s damages

at each site and described Olin’s remediation measures.              The notices also invited

insurers, including OneBeacon, to investigate Olin’s claims. Olin regularly supple-

mented these notices with updated information about damages, costs, and remedial

5 The district court granted Olin’s motion for partial summary judgment as to the BROS site and
concluded as a matter of law that property damage occurred from 1968 through 1974. It later denied
OneBeacon’s request for a jury trial regarding allocation of damages at the BROS site.

                                                6
measures at each site. Between February 1984 and January 1992, Olin sent One-

Beacon fifteen claims notices that related to, at least in part, one or more of the five

sites.

         According to Olin, OneBeacon never responded. It was not until Olin amend-

ed its complaint in 1993, adding coverage claims against OneBeacon for the five

sites, that OneBeacon acknowledged receipt of Olin’s claims notices. In its answer

to this complaint, OneBeacon asserted various defenses denying coverage. Discov-

ery later requested by Olin revealed that OneBeacon had neglected to conduct any

investigation into Olin’s coverage claims. Discovery also exposed that OneBeacon

lacked factual support for numerous affirmative defenses and had delegated its

claims handling responsibilities to one of its reinsurers. Last, through discovery in

a related case, Olin learned that OneBeacon imposed “dollar targets” on its claims

adjusters and would seek to litigate, rather than pay, claims because it was “cheap-

er” to do so.

   B.       THE ONEBEACON POLICIES

         OneBeacon issued Olin three excess umbrella insurance policies for the peri-

od of 1970 through 1972. Because the OneBeacon policies are “excess” policies, each

policy provides coverage only where the underlying insurance policies have been

“exhausted” or have had their limits per occurrence paid out. The OneBeacon poli-

cies “attach” at various points above an underlying “primary” commercial general

liability policy issued by the Insurance Company of North America (“INA”), which

covered the first $300,000 of loss attributable to property damage at the manufac-



                                           7
turing sites. The first OneBeacon policy attaches at $300,000 and has a per occur-

rence limit of $1 million. The next OneBeacon policy attaches at $1.3 million and

has a $4 million per occurrence limit. Finally, the third OneBeacon policy attaches

at $5.3 million and provides $15 million in coverage. In short, OneBeacon’s policies

provide up to $20 million in coverage, in excess of $300,000, per occurrence. Effec-

tive January 1, 1971, OneBeacon’s three excess policies included a pollution exclu-

sion.6 Accordingly, for the purposes of this appeal, the policy period for Olin’s cov-

erage under the three OneBeacon excess policies is January 1, 1970 through De-

cember 31, 1970.

          The OneBeacon policies provide coverage for “all sums which the Insured

shall be obligated to pay by reason of the liability . . . imposed upon the Insured by

law . . . for damages, direct or consequential and expenses . . . on account

of . . . Property Damage . . . caused by or arising out of each occurrence . . . .”7

App’x at 2131. An “occurrence” is defined as “an accident or a happening or event or

a continuous or repeated exposure to conditions which unexpectedly and uninten-

tionally result[s] in . . . property damage . . . during the policy period.” See, e.g.,

App’x at 2134. Each OneBeacon policy also contains a condition on coverage known

as a “prior insurance” provision (or “noncumulation” clause) and a “continuing cov-

erage” clause. Both clauses are found in Condition C of the policies.

          Condition C specifically provides:


6   We express no view on the correct interpretation of this provision.

7The policies define “Property Damage” as “loss of or direct damage to or destruction of tangible
property.” App’x at 2133.

                                                     8
              It is agreed that if any loss covered hereunder is also cov-
              ered in whole or in part under any other excess policy is-
              sued to the Insured prior to the inception date hereof, the
              limit of liability hereon . . . shall be reduced by any
              amounts due to the Insured on account of such loss under
              such prior insurance.

              Subject to the foregoing paragraph and to all other terms
              and conditions of this Policy in the event that personal in-
              jury or property damage arising out of an occurrence cov-
              ered hereunder is continuing at the time of termination of
              this Policy, [OneBeacon] will continue to protect the In-
              sured for liability in respect of such personal injury or
              property damage without payment of additional premium.

App’x at 2138. The first paragraph constitutes the prior insurance provision and

the second is the continuing coverage clause.

        Finally, the “loss payable” provision (Condition J) governs when the OneBea-

con policies are triggered. “Liability under this Policy with respect to any occur-

rence shall not attach unless and until the Insured, or the Insured’s Underlying In-

surer, shall have paid the amount of the Underlying Limits on account of such oc-

currence.” App’x at 2140. In other words, under Condition J, the OneBeacon excess

policies will not attach until the $300,000 primary INA layer is exhausted.

   C.      THE PRIOR EXCESS POLICIES

        Each of the OneBeacon policies at issue is preceded in time by prior insur-

ance in the same layer of coverage (the “Prior Excess Policies”). The Prior Excess

Policies include policies issued by certain underwriters at Lloyd’s, London (the

“London Market Insurers”). The first two layers of the OneBeacon policies, for ex-

ample, are preceded in the same layer by excess policies issued by the London Mar-

ket Insurers dating from the 1950s through 1969. The Prior Excess Policies provide

                                           9
substantially the same coverage as that provided by the OneBeacon policies for the

sites at issue. Like the OneBeacon policies, the Prior Excess Policies generally pro-

vide coverage for all sums Olin becomes legally obligated to pay for property dam-

age during the policy period caused by an occurrence

   D.      OUR COURT’S PRIOR OLIN DECISIONS

        There have been a number of related appeals concerning Olin’s environmen-

tal insurance claims stemming from other contaminated sites, which implicated

other insurers and policies. Several of those decisions set the stage for this appeal.

First, in Olin Corp. v. Insurance Co. of North America (“Olin I”), 221 F.3d 307 (2d

Cir. 2000), we addressed Olin’s claim for coverage from its primary insurer (INA) for

soil and groundwater contamination that occurred over a 35-year period at a pesti-

cide manufacturing plant in North Carolina. There, we determined that the appro-

priate method for “allocating” responsibility for “on-going and progressive injury

that spans many years” is to do so “pro rata.” Id. at 322–24. Under this pro rata

method, the total property damage is divided into equal annual shares for each year

in which such damage took place. This annual share is then treated as the total

property damage attributable to that occurrence for that year, and the insurer

providing coverage for that year is responsible for indemnifying an insured only to

the extent of its contractual liability for such deemed property damage.

        In Olin Corp. v. Certain Underwriters at Lloyd’s London (“Olin II”), 468 F.3d

120 (2d Cir. 2006), we decided a claim seeking coverage from an excess insurer for

soil and groundwater contamination resulting from operations at a chemical manu-



                                          10
facturing plant in upstate New York. The principal issue on appeal was how to

identify the policies triggered as a result of the continuing environmental harm. In

rejecting Olin’s proposed model, we concluded that “property damage occurs as long

as contamination continues to increase or spread,” and includes not only “contami-

nation . . . based on active pollution” but also “the passive migration of contamina-

tion into the soil and groundwater.” Id. at 131. We further clarified that, under the

pro rata approach, in the absence of specific evidence to the contrary, the default is

to allocate loss equally across the years during which “continuous” property damage

was sustained. Id. at 127. We explained, however, that “if it could be determined

exactly how much property damage occurred in each year, then the indemnifiable

remediation costs could be allocated” to the specific years in which the damage oc-

curred, rather than equally across all years in which the progressive environmental

harm was continuing. Id.

      Last, in Olin Corp. v. American Home Assurance Co. (“Olin III”), 704 F.3d 89

(2d Cir. 2012), we addressed the application of a similar prior insurance provision to

that implicated here. Olin III concerned Olin’s coverage-claim against American

Home Assurance Company (“American Home”) for its Morgan Hill, California man-

ufacturing site, which had become contaminated as a result of Olin’s discharge of

chemicals into soil and groundwater over a period of 31 years. 704 F.3d at 93. At

issue were two consecutive American Home excess policies covering periods from

1966 through 1968 and 1969 through 1971, attaching at $30.3 million. Both policies




                                         11
included a provision identical in all material ways to the version of Condition C in-

cluded in the OneBeacon policies implicated here. Id. at 94.

      We concluded that while our prior decisions require the pro rata allocation of

damages in cases involving long-tail claims, the continuing coverage clause of Con-

dition C must still be given effect. Id. at 101. Accordingly, we held that, pursuant

to the continuing coverage clause, American Home would still be liable for damage

continuing after the termination of its policy. Id. at 102. At the same time, howev-

er, we also held that the prior insurance provision reduceed the per occurrence limit

on American Home’s later-issued policy by the amount paid out under American

Home’s prior policy (at the same level of excess coverage), to the extent that both

policies were triggered by the same loss. Id. at 104. We explained that this ap-

proach was consistent with “Condition C’s apparent purpose of sweeping a continu-

ing loss into the earliest triggered policy, with that policy then fully indemnifying

the insured for that loss.” Id. However, bound by our earlier decision in Olin I, we

also held that the pro rata approach, rather than the all sums (or joint and several

liability) approach, continued to govern the allocation of loss across a damage peri-

od. Id. at 102-03. Condition C obligated an insurer “to indemnify Olin up to the

limits of its policies for all property damage caused by the [environmental contami-

nation] that occurred during and after the termination of each policy.” Id. at 101–

02 (emphasis added). But “Condition C alone [could not] trigger joint and several

liability in lieu of the pro rata allocation methodology employed in Olin I . . . .” Id.

at 103.



                                          12
        Applying these principles, we held that the language of the prior insurance

provision reduced the $1 million limit of the American Home policy covering the pe-

riod from 1969 through 1971 by the $1 million limit of the prior American Home

policy, at the same level of coverage, spanning the period from 1966 through 1968,

such that the total per occurrence coverage offered by American Home remained at

$1 million. Id. at 105. Because both of the policies at issue in Olin III were issued

by the same insurer—American Home—we did not have to resolve the question we

are called upon to resolve in this appeal: how a prior insurance provision applies

when the prior policy was underwritten by a different insurer. See id. at 105 n.21.

   E.      THE DISTRICT COURT PROCEEDINGS

        On April 3, 2013, OneBeacon moved for partial summary judgment with re-

spect to the prior insurance provision of Condition C contained in the OneBeacon

policies. Because each of the OneBeacon policies is preceded in the same layer of

coverage by the Prior Excess Policies, OneBeacon sought a ruling that the prior in-

surance provision requires that the occurrence limits of the OneBeacon policies be

reduced by the occurrence limits of any prior policy in the same layer of coverage

triggered by the same occurrence, irrespective of which insurer issued the earlier

policy or policies.

        The district court summarily denied OneBeacon’s motion at oral argument,

ruling from the bench:

              The motion for summary judgment by OneBeacon is de-
              nied. . . . [T]he language that is critical is as follows: “It is
              agreed that if any loss covered hereunder is also covered
              in whole or in part under any other excess policy issued to

                                             13
             the insured prior to the inception date hereof.” I am hold-
             ing that that applies to any other excess policy issued by
             the same insurer, not to other excess policies issued by mis-
             cellaneous possible insurers.

Special App’x at 2 (emphasis added). The court reasoned that:

             The paragraph, in my view, if it is not limited as I have
             said, . . . would be hopelessly vague and subject to numer-
             ous possible factual issues in applying it. Also, it would
             relieve the insurer of possibly 100 percent liability on a
             policy for which substantial premiums were paid to obtain
             something other than possibly no liability.

Id.

      The district court also denied OneBeacon’s motion for partial summary

judgment on Olin’s McIntosh claim. OneBeacon argued that—because of a Febru-

ary 21, 2006 stipulation of dismissal with prejudice—the McIntosh claim must be

dismissed. In 2006, prior to an earlier trial against other insurers relating to Olin’s

request for indemnification in remediating the environmental damage at the McIn-

tosh OU1 site, the parties entered into a stipulation dismissing certain claims as

against OneBeacon. The stipulation, which was endorsed by the district court, stat-

ed: “Plaintiff, Olin Corporation, by its undersigned counsel, hereby stipulates to the

voluntary dismissal, with prejudice, of any claims concerning [OneBeacon] relating

to the McIntosh, Alabama site.” App’x at 742. The district court denied OneBea-

con’s motion, concluding that this stipulation related only to the OU1 portion of the

McIntosh site. The court noted that:

             The stipulation of February 21 is worded broadly, as
             OneBeacon points out, and it is not limited in its language
             to OU1 or to what was being literally tried. And it would
             have been a good idea if this stipulation, when presented

                                          14
               and signed, had been revised. And it was a mistake not to
               revise it. The language is too broad. But for me to say
               that Olin has given up substantial insurance coverage be-
               cause of that mistake, I simply won’t do it. We have all
               made mistakes in our professional lives, and the best
               thing to do in a civilized litigation court process is to help
               people out of those mistakes.

Special App’x at 4.

       In October of 2013, the parties proceeded to trial on the McIntosh OU2,

Fields Brook, Augusta, and Rochester sites.8 The trial focused on two principal is-

sues: (1) whether, as of 1970, Olin expected or intended the property damage ulti-

mately sustained at the various manufacturing sites; and (2) the allocation of dam-

ages across the years during which property damage occurred at each site. Before

giving the case to the jury, the district court rejected OneBeacon’s proposed jury in-

terrogatory regarding expected or intended injury, which asked the jury to find a

specific date by which Olin expected or intended the damage. Instead, the court

asked the jury, with respect to each site, whether “[b]y the time of the policy period

of 1970, [] Olin expect[ed] or intend[ed] the property damage that it was obligated to

remediate?” See, e.g., App’x at 1824. The jury ultimately returned a verdict in favor

of Olin, finding that Olin did not expect or intend the damage by the time of the pol-

icy period of 1970 as to each of the four trial sites. With respect to McIntosh OU2

and Augusta, the jury found that progressive environmental harm was continuing

throughout the period identified by the parties in the verdict form, and allocated

8 The district court granted summary judgment in favor of Olin regarding OneBeacon’s liability at
the BROS site, determined the progressive damage period, and allocated damages evenly across the
entire period. OneBeacon does not appeal that ruling. In addition, the court granted OneBeacon’s
request to bifurcate the trial and defer discovery on Olin’s Chapter 93A claim under Massachusetts
law.

                                               15
damage equally across all years. With respect to Fields Brook, the jury determined

that progressive environmental damage ended in 1978, and assigned various

amounts of the total damage to each year in that period.                Finally, with respect to

Rochester, the district court concluded, without dispute from OneBeacon, that prop-

erty damage began in 1962 and continued through 1986, and also that the damage

should be allocated to each year on a pro rata basis.

       After trial, Olin sought discovery on its Chapter 93A claim but faced re-

sistance from OneBeacon.9 OneBeacon eventually moved for summary judgment,

which the district court granted. Ruling again from the bench, the court concluded

that “based upon [its] personal knowledge and participation in this litigation, One-

Beacon never” engaged in any unfair and deceptive practices. Special App’x at 28.

The court entered an order to the same effect.

       In the year following trial, the parties calculated the total damages owed by

OneBeacon. On January 6, 2015, OneBeacon moved for partial summary judgment

regarding prejudgment interest. OneBeacon asserted that, because Olin did not

make a “definite claim” for coverage (as required by its policies) until after the jury

verdict, Olin was not entitled to any prejudgment interest. The district court reject-

ed OneBeacon’s argument because it found that Olin had sent numerous notice let-

ters to OneBeacon identifying its claims beginning in the 1980s and that OneBea-



9 Section 2(a) of Chapter 93A of Massachusetts General Laws prohibits “[u]nfair methods of competi-
tion and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Mass. Gen.
Laws ch. 93A, § 2(a). In turn, Chapter 176D enumerates certain specific acts or omissions within the
insurance industry that give rise to a Chapter 93A claim, including “[r]efusing to pay claims without
conducting a reasonable investigation based upon all available information.” Mass. Gen. Laws ch.
176D, § 3.

                                                 16
con failed to investigate such claims, instead choosing litigation. As a result, the

district court concluded that OneBeacon was required to compensate Olin with pre-

judgment interest running separately with respect to each indemnifiable expense

from each of the several dates on which Olin incurred remediation costs.

      Finally, in the spring of 2015, the district court entered two Rule 54(b) judg-

ments in favor of Olin, one for the BROS site and another for the remaining four

sites. Each judgment determined the total damages owed by OneBeacon based on

the parties’ stipulations concerning the total loss incurred at each site, the jury’s

findings and parties’ stipulations concerning how that loss was to be allocated

across years of property damage, and the continuing-coverage approach employed

by this Court in Olin III. In particular, the district court, following Olin III, con-

cluded that Olin could seek indemnification under OneBeacon’s 1970 policy not only

for property damage allocated to that year, but also—because of the continuing cov-

erage clause—for property damage arising from the same occurrence allocated to

subsequent years. Applying this approach, the Rule 54(b) judgments, including pre-

judgment interest totaling $42,691,481.75 for the four trial sites and $3,385,691.45

for the BROS site, resulted in a total judgment entered in Olin’s favor of

$87,187,173.63.

      OneBeacon subsequently filed post-judgment motions pursuant to Federal

Rules of Civil Procedure 50, 59, and 60 with respect to both Rule 54(b) judgments,

raising the same issues raised on appeal. The district court denied the motions.

OneBeacon appeals from both final judgments, and Olin cross-appeals the district



                                         17
court’s grant of summary judgment in favor of OneBeacon on Olin’s Chapter 93A

claim.

                                II.   DISCUSSION

   A. VIKING PUMP

         Between when judgment was first entered in this case and oral argument,

the New York Court of Appeals issued its decision in In re Viking Pump, Inc., 52

N.E.3d 1144 (N.Y. 2016). Because this decision is dispositive with respect to certain

issues presented on this appeal, and highly instructive with respect to others, we

briefly summarize it here.

         In Viking Pump, the Court of Appeals began by reiterating its general ap-

proach to the interpretation of the provisions of an insurance contract.       As the

Court of Appeals explained, “[w]e emphasized in Consolidated Edison[, 774 N.E.2d

687, 693 (N.Y. 2002), the first Court of Appeals decision to interpret a contract as

requiring pro rata allocation], and have reiterated thereafter, that in determining a

dispute over insurance coverage, courts first look to the language of the policy.” Vi-

king Pump, 52 N.E.3d at 1151 (alterations and internal quotation marks omitted).

Thus, in pre-Viking Pump decisions upholding the propriety of pro rata allocation of

losses spanning policy years, “[w]e did not adopt a strict rule mandating either pro

rata or all sums allocation because insurance contracts, like other agreements,

should be enforced as written, and parties to an insurance arrangement may gener-

ally contract as they wish and the courts will enforce their agreements without

passing on the substance of them.” Id. (internal quotation marks omitted). In sum,



                                         18
when confronted, in the context of a given insurance contract, with the question

whether losses associated with “long-tail” claims are properly distributed pro rata

across all policy years during which the harm was continuing or whether an “all

sums” approach is more appropriate, courts are to use ordinary tools of contractual

interpretation to resolve the issue. See id.

       The Court of Appeals then went on to explain why, in its view, the insurance

contracts before it—each of which included at least the prior insurance provision10—

required application of the all sums approach, as well as its view of what the all

sums approach required. First, the Court of Appeals explained that since the prior

insurance provision “plainly contemplate[s] that multiple successive insurance poli-

cies can indemnify the insured for the same loss or occurrence,” id. at 1153, indem-

nification obligations under insurance contracts containing such a provision should

be determined under the all sums, or “joint and several[,]” approach, which “permits

the insured to collect its total liability under any policy in effect [and indemnifies

the insured for the loss] during the periods that the damage occurred up to the poli-

cy limits,” id. at 1149. (alterations and internal quotation marks omitted). As fur-

ther support for its conclusion, the Court of Appeals contrasted all sums allocation

with pro rata allocation. See id. at 1153–54. Noting that the “very essence of pro

rata allocation is that the insurance policy language limits indemnification to losses

and occurrences during the policy period––meaning that no two insurance policies,


10 Not all of the policies in Viking Pump included a provision like the continuing coverage clause—
some contained only the prior insurance provision—but the Court of Appeals explained that inclu-
sion of a continuing coverage clause “further compels” a determination that all sums—not pro rata—
allocation was intended in such policies. 52 N.E.3d at 1154.

                                                19
unless containing overlapping or concurrent policy periods, would indemnify the

same loss or occurrence,” id. at 1153, the Court of Appeals explained that under pro

rata allocation, noncumulation and prior insurance provisions would be rendered

surplusage––“a construction that cannot be countenanced under [New York] princi-

ples of contract interpretation,” id. at 1154.

      The Court of Appeals then turned to the related question of “whether hori-

zontal or vertical exhaustion applies under the relevant policies.” Id. at 1156. Un-

der the horizontal exhaustion approach, an insured is required to “exhaust all trig-

gered primary and umbrella excess layers before tapping into any of the additional

excess insurance policies,” while under vertical exhaustion “the [i]nsured[] [can] ac-

cess each excess policy once the immediately underlying policies’ limits are deplet-

ed, even if other lower-level policies during different policy periods remain unex-

hausted.” Id. In resolving this question, the Court of Appeals explained that the

language of policies containing Condition C militated in favor of vertical exhaustion

because “vertical exhaustion is more consistent . . . with th[e] language tying at-

tachment of the excess policies specifically to identified policies that span the same

policy period” and because “vertical exhaustion is conceptually consistent with an

all sums allocation, permitting the [i]nsured to seek coverage through the layers of

insurance available for a specific year.” Id. Thus, the Court of Appeals held that an

insured could pursue insurers whose policies contained a prior insurance provision

for indemnification irrespective of whether policies covering other years over the

course of the loss period potentially were triggered by the same occurrence.



                                           20
      Finally, it is worth noting the ways in which the approach adopted by the

Court of Appeals requires some modification of the approach we, bound by our ear-

lier interpretations of New York law, took in Olin III (which guided the district

court’s judgment here). In Olin III, we held that, under the contracts at issue,

property damage assigned to a period after the applicable policy year would be

swept back into the “earliest triggered policy.” 704 F.3d at 104. But, under Viking

Pump, the insured can pursue any insurer whose policy contains Condition C, and

whose policy covers property damage during the relevant period, for all damage

reaching the insurer’s policy layer regardless of “when” it took place.      In other

words, Viking Pump departs from the “legal fiction” that property damage can be

cleanly allocated between policy years, and instead adopts a joint and several liabil-

ity theory that allows the insured to seek indemnification for the full amount of

damage incurred over the continuing damage period from any insurer whose policy

language dictates all sums liability with language similar to Condition C.         52

N.E.3d at 1153.

   B. EXHAUSTION OF OLIN’S PRIMARY POLICIES

      At the outset, we must determine whether Olin’s primary policies have been

exhausted so as to trigger OneBeacon’s excess policies. OneBeacon encourages us to

adopt a “hybrid” allocation/exhaustion scheme, contending that, because the under-

lying INA policies do not contain Condition C, we must use pro rata allocation to de-

termine whether the underlying primary policies have been exhausted (and thus

whether OneBeacon’s policies have attached). Only then, it argues, once OneBea-



                                         21
con’s policies have attached, does all sums allocation apply to OneBeacon’s excess

policies. In other words, OneBeacon submits that we should apply horizontal ex-

haustion to the INA primary layers and vertical exhaustion to its policies. Under

this “hybrid” approach, OneBeacon asserts that the underlying INA primary poli-

cies have not been exhausted, and therefore OneBeacon’s $300,000 attachment

point has not been met. Because OneBeacon’s policies call for all sums allocation,

and the New York Court of Appeals’ decision in Viking Pump dictates vertical ex-

haustion where the all sums approach is the proper method for allocation, we con-

clude that Olin’s underlying policies have been exhausted and OneBeacon’s policies

have attached.

      As explained above, Viking Pump identifies the proper method for determin-

ing exhaustion in cases, such as this one, where the excess policy at issue contains a

provision like Condition C. The Court of Appeals specifically held that, for policies

incorporating a prior insurance provision (and by extension all sums allocation),

vertical exhaustion is the appropriate method for determining the attachment of ex-

cess policies. Id. at 1156–58. Viking Pump explains that “vertical exhaustion is

conceptually consistent with an all sums allocation, permitting the [i]nsured to seek

coverage through the layers of insurance available for a specific year.” Id. at 1156.

The concept of vertical exhaustion “allow[s] the [i]nsureds to access each excess pol-

icy once the immediately underlying policies’ limits are depleted, even if other low-

er-level policies during different policy periods remain unexhausted.” Id. Horizon-




                                         22
tal exhaustion, by contrast, requires that lower-level policies throughout the contin-

uing damage period be exhausted before excess policies are triggered.

   The Court of Appeals reasoned that “vertical exhaustion is more consistent than

horizontal exhaustion” with the particular policy language where the “attachment

of the excess policies” is tied “specifically to identified [primary] policies that span

the same policy period.” Id. This is precisely how OneBeacon’s policies operate

here, as the loss payable provision merely requires that the underlying primary po-

lices (the INA policies) must be exhausted before OneBeacon’s policies attach. To

somehow import horizontal exhaustion into OneBeacon’s policies by virtue of the

underlying INA policies would contradict Viking Pump’s rule that vertical exhaus-

tion controls when policies contain a prior insurance provision.

      By demanding vertical exhaustion for policies contemplating all sums alloca-

tion, Viking Pump explicitly determined that an insured in Olin’s position does not

need to exhaust primary policies outside the policy year to reach the excess layer for

its chosen policy year. Thus, Viking Pump dictates that we reject OneBeacon’s posi-

tion that the pro rata approach applies to determine whether the underlying INA

primary policies have been exhausted. Rather, an insured may simply tap a partic-

ular tower of its insurance program triggered by an occurrence and proceed up the

tower upon depletion of the policies within each layer of coverage (just as Olin seeks

to do here). We therefore conclude that, because it is not disputed that the damages

at each site far exceed OneBeacon’s attachment point of $300,000 when apportioned

to a single policy year, OneBeacon’s policies have been triggered.



                                          23
   C. THE MCINTOSH STIPULATION

      We now turn to the effect of the McIntosh stipulation, if any, on OneBeacon’s

liability for Olin’s claims for indemnification arising from cleanup costs at the OU2

McIntosh site. OneBeacon argues that the district court erred in denying its sum-

mary judgment motion related to the McIntosh OU2 site because the February 21,

2006 stipulation unambiguously dismissed all claims related to the “McIntosh, Ala-

bama site,” which included both operable units. Although the stipulation refers

broadly to the “McIntosh, Alabama site,” because—considered within the context of

the 2006 trial—such a term could reasonably be interpreted as referring only to

OU1, we affirm the district court’s denial of summary judgment.

      Here, while the agreement specifically provided that Olin “stipulates to the

voluntary dismissal, with prejudice, of any claims concerning [OneBeacon] relating

to the McIntosh, Alabama site,” App’x at 742 (emphasis added), circumstances clear-

ly indicate that the stipulation was not designed to cover both OU1 and OU2. In-

deed, the parties entered into the stipulation at the start of the 2006 trial, which

concerned liability related only to OU1. By 2006, the EPA had determined an envi-

ronmental remedy for only OU1. Because its total costs for OU1 were known, Olin

proceeded to trial on that unit first. In fact, cleanup at OU2 was still ongoing in

2006, and since the full remedy for that site was not yet ascertainable, Olin held off

in pursuing its indemnification claims for loss arising from that unit of the McIn-

tosh site. In Olin’s 2006 pretrial correspondence with the London Market Insurers,

moreover, Olin clarified that it sought to recover costs associated specifically with



                                         24
remediation for OU1. Olin’s pretrial disclosures also repeatedly defined the term

“McIntosh” as the “McIntosh, Alabama site which is the subject of the February 21,

2006 trial.” App’x at 723, 726. Additionally, Olin agreed to the stipulation with

OneBeacon only because it expected full indemnification from the London Market

Insurers through its recovery at trial. See id. at 740, 870 (Olin’s counsel notifying

excess insurers, including OneBeacon, that its “excess insurance carriers, other

than LMI . . . are not likely to be implicated in the upcoming McIntosh [t]rial.”).

      The district court’s conclusion that Olin could not have intended to release

OneBeacon from liability for OU2 at the time of the 2006 trial for OU1 was thus

proper. The district court’s denial of summary judgment with respect to the McIn-

tosh site on this ground is therefore affirmed.

   D. SPECIAL VERDICT FORM

      OneBeacon also argues that a new trial is warranted because the district

court “committed legal error by adopting a special verdict form premised on an in-

correct interpretation of the OneBeacon Policies.” Appellant’s Br. at 66. We review

for abuse of discretion a district court’s formulation of special verdict questions. See

Vichare v. AMBAC Inc., 106 F.3d 457, 465 (2d Cir. 1996). A jury interrogatory is

erroneous when it “mislead[s] or confuse[s] the jury, or if [it] inaccurately frame[s]

the issues to be resolved by the jury.” Id.

      The district court posed the following interrogatory to the jury: “By the time

of the policy period of 1970, did Olin expect or intend the property damage that it

was obligated to remediate? If your answer . . . is no, proceed to the further ques-



                                          25
tions. If your answer . . . is yes, proceed no further . . . .” See, e.g., App’x at 1824.

The jury answered in the negative as to each site. OneBeacon contends that this

“interrogatory was clearly erroneous because the jury was not permitted to return a

verdict finding that property damage after 1970 was expected or intended by Olin.”

Appellant’s Br. at 68 (emphasis added). So the argument goes: because of the faulty

jury instruction, OneBeacon may have been required to indemnify against expected

or intended property damage, contrary to policy language dictating that OneBeacon

is responsible to indemnify Olin only for unexpected or unintended property dam-

age. OneBeacon claims that the district court should have instead asked the jury

whether “Olin expect[ed] or intend[ed] property damage that it was obligated to re-

mediate[,]” and if “Yes,” “by what date[.]” Appellant’s Br. at 65.

      OneBeacon’s policies require indemnification where there has been “an acci-

dent or a happening or event or a continuous or repeated exposure to conditions

which unexpectedly and unintentionally result in . . . property damage . . . during

the policy period.” App’x at 2134 (emphasis added). The policies at issue, upon con-

sideration of the pollution exclusion effective January 1, 1971, cover the period from

January 1, 1970 through December 31, 1970. We understand the district court’s in-

terrogatory as asking whether Olin expected or intended any property damage with-

in the policy period beginning in 1970. This conforms to the language of OneBea-

con’s policy defining an occurrence as an unexpected or unintended event happening

during the period in which the policies provide coverage. Under the language of the

policy, whether Olin later expected or intended the property damage that was ongo-



                                           26
ing is irrelevant. Indeed, the continuing coverage clause––which states that One-

Beacon must continue to provide coverage “in the event that . . . property damage

arising out of an occurrence covered hereunder is continuing at the time of the ter-

mination” of the policy––contains no language suggesting that such continuing

property damage must remain “unexpected” or “unintentional.” Id. at 2138. Be-

cause the court’s interrogatory asking the jury whether Olin expected or intended

property damage by 1970 correctly framed the issue of liability, under the terms of

the OneBeacon policies there was no error in the district court’s instruction. The

district court’s ruling as to the special verdict form is affirmed.

   E. DAMAGES

      In sum, under Viking Pump, Olin may “collect its total liability under any

policy in effect during the periods that the damage occurred, up to the policy limits.”

52 N.E.3d at 1149 (alteration and internal quotation marks omitted). Because the

jury determined that property damage continued during the years in which Olin

was covered by OneBeacon’s policies and that Olin did not expect or intend this

damage (at least during the OneBeacon policy year at issue), Olin may pursue One-

Beacon for full indemnification for its costs at these sites up to the policy limits for

the 1970 year. Thus, OneBeacon’s total liability to Olin (before calculating pre-

judgment or post-judgment interest) after Viking Pump can be computed as Olin’s

total remediation costs, less $300,000, at each of the manufacturing sites at issue,

with Olin’s total recovery capped only by the relevant policy limits. Because the

district court, relying on our opinion in Olin III, capped Olin’s recovery at the loss



                                           27
attributable, under the pro rata method, to the 1970 policy year and to years subse-

quent, we vacate and remand for entry of a new damages judgment on the basis of

the methodology dictated by Viking Pump.

   F. PRIOR INSURANCE PROVISION

      OneBeacon next asserts that the judgments of the district court should be va-

cated because the court failed to give effect to the prior insurance provision of One-

Beacon’s policies, thereby reducing the limits of its policies by those of any prior pol-

icies covering the same loss. We agree. Where an occurrence spans multiple policy

years, the plain language of the prior insurance provision requires the reduction of

the occurrence limit of a OneBeacon policy by amounts due under any prior excess

insurance policy on account of a loss covered by a prior insurance policy in the same

layer of coverage as the relevant OneBeacon policy, when that prior insurance poli-

cy is triggered by the same occurrence for which the insured presently seeks indem-

nification. See Olin III, 704 F.3d at 104 (concluding that prior insurance provision

of excess insurance policies reduced insurer’s liability to the extent that a prior in-

surance policy at the same level of coverage indemnified for a loss that was also

covered by insurer’s excess policies). This prevents an insured from stacking, or

cumulating, coverage—that is, where an insured that has suffered a long-term or

continuous loss triggering coverage across more than one policy period attempts to

add together the maximum limits of all successive policies that have been in place

during the period of the loss. See Viking Pump, 52 N.E.3d at 1152; Steven Plitt et

al., Couch on Insurance § 169:5 (3d ed.) (West 2017).



                                           28
      Our decision in Olin III, though not dispositive, is instructive, as we did not

directly address the question before us here: whether a prior insurance provision

applies to any other excess policy issued within the same layer, and not just a prior

policy issued by the same insurer. See Olin III, 704 F.3d at 105 n.21. Moreover, as

we explain, resolution of this inquiry is intertwined with the question of the proper

mode of allocation of damages for a multi-year loss.

      We turn first to principles of contract interpretation to inform our analysis.

Under New York law, insurance policies are interpreted according to general rules

of contract interpretation. See, e.g., World Trade Ctr. Props., L.L.C. v. Hartford Fire

Ins. Co., 345 F.3d 154, 183–84 (2d Cir. 2003), abrogated on other grounds by Wa-

chovia Bank v. Schmidt, 546 U.S. 303 (2006). Two such rules are particularly rele-

vant here. First, the “words and phrases [in a contract] should be given their plain

meaning, and the contract should be construed so as to give full meaning and effect

to all of its provisions.” LaSalle Bank Nat’l Ass’n v. Nomura Asset Capital Corp.,

424 F.3d 195, 206 (2d Cir. 2005) (alteration and internal quotation marks and ellip-

sis omitted). Any interpretation of a contract that “has the effect of rendering at

least one clause superfluous or meaningless . . . is not preferred and will be avoided

if possible.” Id. (alteration and internal quotation marks omitted).

      Second, contract terms are ambiguous if they are “capable of more than one

meaning when viewed objectively by a reasonably intelligent person who has exam-

ined the context of the entire integrated agreement and who is cognizant of the cus-

toms, practices, usages and terminology as generally understood in the particular



                                          29
trade or business.” Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1192

(2d Cir. 1996). When a provision in an insurance contract is ambiguous, a court

may consider extrinsic evidence to ascertain the parties’ intent at the formation of

the contract. JA Apparel Corp. v. Abboud, 568 F.3d 390, 397 (2d Cir. 2009). If the

extrinsic evidence fails to establish the parties’ intent, courts may apply other rules

of contract interpretation, including New York's insurance-specific version of the

rule of contra proferentem, according to which ambiguity should be resolved in favor

of the insured. See Haber v. St. Paul Guardian Ins. Co., 137 F.3d 691, 697–98 (2d

Cir. 1998). Ambiguity is absent where the contract’s language provides “a definite

and precise meaning, unattended by danger of misconception in the purport of the

contract itself, and concerning which there is no reasonable basis for a difference of

opinion.” Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.

1989) (alteration omitted). With these principles in mind, we hold that the prior in-

surance provision of Condition C is unambiguous and that the district court erred

when it concluded that the prior insurance provision did not apply to reduce the

limits of OneBeacon’s liability.

      To begin with, we conclude that the language of the prior insurance provi-

sion, on its face, applies to “any other excess policy,” and is not limited to prior poli-

cies issued by the same insurer. Indeed, there is no language in Condition C that

might imply that the prior insurance provision is limited in application to any other

excess policy issued only by the same provider. Rather, the general language of the

prior insurance provision suggests that the clause is designed to apply whenever



                                           30
both earlier and later polices cover the same loss, just as the focus of noncumulation

clauses is whether more than one policy provides coverage for identical loss within

the same layer, unaffected by the identity of the insurer.

       This construction is consistent, moreover, with the design of noncumulation

clauses. As noted above, noncumulation clauses were developed to prevent “stack-

ing” by an insured. “Such clauses originated during the shift from ‘accident-based’

to ‘occurrence-based’ liability policies in the 1960s and 1970s, and were purportedly

designed to prevent any attempt by policyholders to recover under a subsequent pol-

icy—based on the broader definition of occurrence—for a loss that had already been

covered by the prior ‘accident-based’ policy.” Viking Pump, 52 N.E.3d at 1152. And,

the New York Court of Appeals has “enforced non-cumulation clauses in accordance

with their plain language, despite the limiting impact that such clauses may have

on an insured’s recovery (and, by extension, that of an injured plaintiff).” Id. (citing

Nesmith v Allstate Ins. Co., 25 N.E.3d 924 (N.Y. 2014); Hiraldo v Allstate Ins. Co.,

840 N.E.2d 563 (N.Y. 2005)). Therefore, based on the policy language at issue and

the recent decision from the Court of Appeals in Viking Pump, it is irrelevant

whether Olin’s prior excess policies were issued by an insurer other than OneBea-

con.

       Our conclusion finds further support in our analysis of a similar prior insur-

ance provision at issue in Olin III, in which we “conclude[ed] that the prior insur-

ance provision reduces American Home’s liability only to the extent that a prior in-

surance policy at the same level of coverage . . . indemnifies for a loss that is also



                                          31
covered by an American Home policy.” 704 F.3d at 104 (emphasis added). We also

determined that, because we must interpret Condition C in a way that gives effect

to both the continuing coverage clause and prior insurance provision, “to the extent

the continuing coverage [clause] expands an insurer’s liability, it does so subject to

the limitations of the prior insurance provision.” Id. at 104 n.20.

      While the insurer in Olin III (American Home) issued both the policy under

which Olin sought indemnification and the prior policy within the same layer of

coverage, after Viking Pump it is clear that the critical factor is whether the loss

covered by a policy dictating all sums is also covered by another policy in the same

coverage layer, which itself has already provided indemnification to the insured for

the loss. Although Viking Pump did not directly decide the issue we are required to

resolve here, its analysis of the interplay between prior insurance provisions and

allocation leads directly to our holding. Under an “all sums” or a “joint and several”

method for allocation, an insured is permitted “to collect its total liability under any

policy in effect during the periods that the damage occurred, up to the policy limits.”

Viking Pump, 52 N.E.3d at 1149 (alteration and internal quotation marks omitted).

It is then the insurer’s burden to “seek contribution from the insurers that issued

the other triggered policies.” Id. at 1150. In contrast, under the pro rata scheme for

allocation, “an insurer’s liability is limited to sums incurred by the insured during

the policy period; in other words, each insurance policy is allocated a ‘pro rata’ share

of the total loss representing the portion of the loss that occurred during the policy

period.” Id.



                                          32
      As Olin argues, application of the all sums method means that it may attrib-

ute the full amount of its loss to a single policy year and demand coverage from a

single insurer up to the insurer’s policy limits (OneBeacon in this case). Yet, this

same principle also limits Olin’s ability to tap multiple insurers for the same loss.

Just as the all sums allocation method allows Olin to seek recovery from any insur-

er of its choosing up to the limits of the relevant policy, it also, by the same token,

requires reducing the limits of liability of any prior insurance policy providing cov-

erage for the same loss. See Stonewall Ins. Co. v. E.I. du Pont de Nemours & Co.,

996 A.2d 1254, 1260 (Del. 2010) (examining substantially similar language in light

of the all sums approach and concluding that “interpreting the non-cumulation

clause to limit how much [an insured] may seek from the selected tower of insur-

ance by subtracting any amounts received by or payable to [the insured] from prior

excess insurers [] is the only proper interpretation”). To conclude otherwise would

be to strip the prior insurance provision of its bargained-for effect, as evinced by its

plain language, and permit Olin to recover multiple times for a single loss by pursu-

ing multiple insurers within the same layer of coverage. See id. (concluding that

reading noncumulation clause “as ambiguous and in isolation would dishonor the

spirit of the clause and improperly allow [the insured] to obtain a double recovery

by negating settlements already received from [prior] insurers”). It would also be

inconsistent with the “joint and several” principle animating the all sums approach.

Viking Pump, 52 N.E.3d at 1149, 1152.




                                          33
      Finally, however, we reject out-of-hand OneBeacon’s argument that since

Olin could recover from prior insurers whose policies provide coverage for loss at

these sites and who sit in the same layer of coverage as OneBeacon, Olin may not

recover under the OneBeacon policies. This argument turns on a misreading of

Condition C. As explained earlier, Condition C permits an insured to pursue in-

demnification from any insurer whose policy was triggered (under the framework

described above) as a result of continuing property damage. The prior insurance

provision works in conjunction with the overarching approach dictated by Condition

C to prevent the insured from stacking policies once it has already obtained indem-

nification for that specific loss from another policy in the relevant coverage layer.

See Id. at 1149 (explaining that the all sums approach permits an insured to recover

from “any policy in effect during the periods that damage occurred” (internal quota-

tion marks omitted)).

      Determining the meaning of the prior insurance provision does not resolve

our inquiry. We must now determine the effect of Olin’s settlements with its prior

insurers—the London Market Insurers—on OneBeacon’s obligations. This presents

a difficult question, since Olin recovered from the London Market Insurers in set-

tlement of its claims for indemnification, and the record is devoid of any information

about these settlements.

      OneBeacon contends that the district court should be instructed that

“amounts due include amounts due under policies issued by insurers that settled

prior to the conclusion of this appeal.” Appellant’s Br. at 63 (internal quotation



                                         34
marks omitted). In response, Olin claims that its settlements with the London

Market Insurers do not constitute “amounts due” under those policies because “not

one of those other insurers was ever adjudged liable to Olin or admitted liability . . .

[and] even if settlement dollars could be considered amounts due . . . there is noth-

ing in the record showing what amounts (if any) were due . . . .” Appellee’s Br. at

66, 68 (internal quotation marks omitted).

      While we agree with OneBeacon that its limits of liability should be reduced

by amounts paid to settle claims with respect to the five manufacturing sites at is-

sue here, there is no basis in the record from which we might calculate that amount.

Indeed, if, as Olin suggests, Olin entered into a global settlement with the London

Market Insurers releasing claims under those policies as to all sites potentially at

issue—and not just those that were the subject of adjudication at trial in this mat-

ter—there is no easy way to determine the amount of this settlement that is proper-

ly associated with claims arising from the five manufacturing sites that are the fo-

cus of this appeal. In fact, we have previously recognized the difficulties that arise

when trying to set off an insured’s recovery against prior settlements. See, e.g., E.R.

Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 172 n.10 (2d Cir. 2001) (per cu-

riam) (suggesting that the amounts paid in prior settlements had not exceeded ag-

gregate policy limits); see also id. at 184 n.1 (Jacobs, J., dissenting) (questioning

whether the district court’s order required “the excess insurers to pay indemnity in

respect of claims that have already been indemnified in full”).




                                          35
      In light of this deficiency in the record, we conclude that remand is appropri-

ate in order for the district court to be able to enhance the record and issue a deci-

sion in the first instance as to the effect of Olin’s prior global settlement with the

London Market Insurers. However, a few words as to guiding principles are appro-

priate.

      As just explained, Condition C permits an insured to pursue full recovery

from any insurer in its program whose policy covers the relevant loss and contains

Condition C irrespective of whether the insurer’s policy was issued at the beginning,

in the middle, or towards the end of the continuing occurrence. To use the termi-

nology we adopted in Olin III, Condition C permits an insured to “sweep[]” loss—

under Viking Pump, from both before and after the policy year—into a triggered

policy and to seek full indemnification from that policy for its covered loss. Olin III,

704 F.3d at 104; Viking Pump, 52 N.E.3d at 1155–56. In other words, like the joint

and several liability that serves as a model for the all sums approach, once the in-

sured has demonstrated the scope of its insurer’s indemnification obligation, Condi-

tion C shifts the burden to the insurer “to seek contribution from the insurers that

issued the other triggered policies.” Viking Pump, 52 N.E.3d at 1149–50. Thus,

under Condition C, the insurer offering coverage for the selected policy year is gen-

erally required to demonstrate the existence of valid claims against other available

policies and to pursue claims under them.

      The prior insurance provision, however, also offers some contractual protec-

tion for the insurer. This provision allows the insurer to offset its indemnification



                                          36
obligations by amounts already paid to cover the loss by another insurer in the

same coverage tier. See App’x at 2138 (permitting the insurer to reduce the limit of

liability on the policy if any covered loss was already “covered in whole or in part

under any other excess policy” at the same level of coverage). But it would general-

ly be the burden of the insurer to prove its entitlement under this contractual provi-

sion. See Facet Indus., Inc. v. Wright, 465 N.E.2d 1252, 1254 (N.Y. 1984) (explain-

ing that the burden of proving that a loss falls within a contractual exclusion is on

the insurer); Lindenbaum v. Royco Prop. Corp., 165 A.D.2d 254, 258 (1st Dep’t 1991)

(“The party burdened by the duty . . . usually has the burden of proving the dis-

charge of his duty by the occurrence of a condition subsequent.”). If, after appropri-

ate discovery, OneBeacon is able to do so, then the limits of liability on the policies

it issued to Olin should be reduced accordingly. With these principles in mind, we

remand to the district court for further proceedings on this issue.

   G. PREJUDGMENT INTEREST

      OneBeacon also challenges the district court’s calculation of prejudgment in-

terest. It argues that the district court’s award of prejudgment interest should be

vacated because Olin failed to provide a sufficient “definite claim” for loss for which

OneBeacon might be found liable, as required by OneBeacon’s policies. In light of

our conclusion that all sums allocation applies—altering the total sum of damages

attributable to a given policy period—it is necessary to remand to the district court

so it may recalculate the amount of prejudgment interest.




                                          37
      The district court concluded that Olin is entitled to prejudgment interest pur-

suant to N.Y. C.P.L.R. § 5001(b). Section 5001(b) “permits a party that prevailed in

a breach of contract action to obtain prejudgment interest.” NML Capital v. Repub-

lic of Arg., 952 N.E.2d 482, 488 (N.Y. 2011). It specifically provides, in relevant

part, that “[i]nterest shall be computed from the earliest ascertainable date the

cause of action existed . . . .” N.Y. C.P.L.R. § 5001(b).

      In an insurance-coverage dispute, the application of § 5001(b) requires that

prejudgment interest be calculated from the date the insurer becomes obligated to

indemnify the insured. Cf. NML Capital, 952 N.E.2d at 488 (explaining that “inter-

est on a sum awarded as a result of a breach of contract is computed from the earli-

est date that the claim accrued”). An insurer breaches its coverage obligation where

it fails to comply with its insured’s demand for indemnity. See Aetna Cas. & Sur.

Co. v. Home Ins. Co., 882 F. Supp. 1328, 1353 (S.D.N.Y. 1995) (“[T]he accrual of

Aetna’s cause of action can be identified as maturing when Home failed to comply

with Aetna’s demand that it indemnify Aetna for payments made in connection with

its settlement with Robins.”). Courts are afforded “wide discretion in determining a

reasonable date from which to award pre-judgment interest.” Conway v. Icahn &

Co., Inc., 16 F.3d 504, 512 (2d Cir. 1994).

      Here, the parties dispute whether the fifteen notices that Olin sent OneBea-

con regarding its claims for coverage, beginning in 1984, constitute a “definite

claim” such that OneBeacon’s refusal to comply with its coverage obligations trig-

gered § 5001(b). OneBeacon contends that, because its policies require that Olin



                                              38
make a “definite claim for any loss for which [OneBeacon] may be liable under the

Policy,” App’x at 2140, Olin was obligated to provide OneBeacon with a “sum cer-

tain” for a particular loss as a condition to coverage. Appellant’s Reply Br. at 40.

But OneBeacon’s interpretation both reads words into, and out of, the policy.

      Although the policy does not offer a precise definition for a “definite claim,” it

does make clear that any such claim needs to be certain only to the extent that it

provided OneBeacon with an amount of loss for which OneBeacon “may be liable

under the Policy.” App’x at 2140 (emphasis added). The contract does not require

Olin to submit a “definite claim” along with a “sum certain” of such claim, but ra-

ther a definite claim along with a description of the insurer’s potential liability with

respect to that claim. Because we read a contract so as to “give effect to the plain

meaning of the words,” we reject OneBeacon’s contrary reading. Int’l Klafter Co. v.

Cont’l Cas. Co., 869 F.2d 96, 99 (2d Cir. 1989).

      Thus, because Olin furnished numerous documents and updates to OneBea-

con concerning its losses and descriptions as to its expenditures at each site, we

agree with the district court’s determination that prejudgment interest should be

calculated as of the dates when Olin incurred various remediation costs. In any

event, it is worth noting that it has been OneBeacon’s position all along that it has

no obligation to indemnify Olin. It has denied coverage for over twenty years. Hav-

ing been found liable for coverage to Olin, OneBeacon cannot now benefit from its

tactical decision to deny its contractual obligation to indemnify Olin for covered

losses by avoiding liability for interest. It is not the intention of § 5001(b) that an



                                          39
insurer could deny coverage for years in the face of reasonable demands and then,

once it is adjudicated liable, avoid paying any prejudgment interest. As a result,

remand on this point is necessary only for the reasons noted by Olin: to allow the

district court an opportunity to adjust Olin’s prejudgment interest award in light of

our holding regarding all sums allocation.

                         III.   OLIN’S CROSS-APPEAL

      Olin cross-appeals the district court’s grant of summary judgment in favor of

OneBeacon on Olin’s Chapter 93A claim under Massachusetts law. Chapter 93A of

Massachusetts General Laws prohibits “[u]nfair methods of competition and unfair

or deceptive acts or practices in the conduct of any trade or commerce.” Mass. Gen.

Laws ch. 93A, § 2(a). Olin claims that OneBeacon engaged in unfair and deceptive

acts by refusing to pay meritorious claims without conducting a reasonable investi-

gation and forcing Olin to litigate in order to recover amounts due under OneBea-

con’s policies. See Mass Gen. Laws ch. 176D, § 3(9)(d) (defining “[r]efusing to pay

claims without conducting a reasonable investigation based upon all available in-

formation” in the context of an insurance policy as an unfair or deceptive practice).

In ruling from the bench, the district court granted summary judgment in favor of

OneBeacon and dismissed Olin’s claim because, in the court’s “view, there is no sub-

stance, whatever, to an application under a Massachusetts statute which talks in

terms of unfair methods of competition, unfair or deceptive acts . . . [and] OneBea-

con never committed such acts.” Special App’x at 28.




                                         40
       Applying Massachusetts’ discovery rule, we agree with OneBeacon that

summary judgment in its favor on Olin’s Chapter 93A claim is proper because Olin’s

Chapter 93A claim is barred by the applicable statute of limitations.11 Under Mas-

sachusetts’ discovery rule, the statute of limitations governing Chapter 93A claims

begins to run only “when the cause of action is discovered or reasonably should have

been discovered by the plaintiff.” Anawan Ins. Agency, Inc. v. Div. of Ins., 946

N.E.2d 668, 693 (Mass. 2011). “In applying the ‘reasonably should have known’

standard at issue in the discovery rule, reasonable notice that a particular act of

another person may have been a cause of [the] harm to a plaintiff creates a duty of

inquiry and starts the running of the statute of limitations.” Ross v. Garabedian,

742 N.E.2d 1046, 1053 (Mass. 2001).

       As OneBeacon points out, Olin’s complaint alleged, as part of the factual ba-

sis for Olin’s Chapter 93A claim, that “Commercial Union [OneBeacon’s predeces-

sor] . . . wholly ignored Olin’s repeated notifications of claims provided from and af-

ter 1984 in respect of certain of Olin’s Claims.” App’x at 1030. The complaint fur-

ther alleged that “Commercial Union has failed and refused to affirm or deny cover-

age in respect of Olin’s Claims for an unreasonable period of time – and in many

cases, has never affirmed or denied coverage in respect of certain of Olin’s Claims.”

App’x at 1030. In other words, according to its own allegations, since Olin knew



11 We assume, with the parties, that Massachusetts’ four-year statute of limitations, along with its
associated tolling rules, applies. See Santalucia v. Sebright Transp., Inc., 232 F.3d 293, 296 (2d Cir.
2000) (explaining that when the parties’ arguments assume that the law of a certain jurisdiction con-
trols the dispute, the parties are deemed to have given implied consent to application of that law);
see also Mass. Gen. Laws ch. 260, § 5A (providing for a four-year statute of limitations in consumer
protection actions).

                                                  41
that OneBeacon never responded directly to its notices and never affirmed or denied

the coverage responsibilities these notices sought to invoke, Olin actually knew or,

at the very least, should have known of the factual predicates for its Chapter 93A

claim at some point either in the 1980s or the early 1990s. See Patsos v. First Alba-

ny Corp., 741 N.E.2d 841, 846–47 (Mass. 2001) (explaining that, under the discovery

rule, a cause of action accrues when a plaintiff “knew, or in the exercise of reasona-

ble diligence should have known, of the factual basis for a cause of action”).

      Olin argues, in effect, that it did not understand at the time the full extent of

OneBeacon’s alleged failure to investigate Olin’s claims and so could not have

brought its Chapter 93A claim at the time. But this is precisely how Massachusetts’

discovery rule operates: it starts the statute of limitations as soon as the plaintiff

had sufficient information to pursue a claim and requires a putative plaintiff to

conduct a reasonable investigation to inquire whether it has sufficient grounds on

which to bring a claim. See Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21, 26–

29 (1st Cir. 1993). Having failed to do so, Olin cannot now argue that the statute of

limitations was, in fact, tolled the entire time. For this reason, we affirm the dis-

trict court’s grant of summary judgment in favor of OneBeacon on Olin’s Chapter

93A claim. Cf. Lotes Co. v. Hon Hai Precision Indus. Co., 753 3d 395, 413 (2d Cir.

2014) (“It is well settled that this Court may affirm on any basis for which there is

sufficient support in the record, including grounds not relied on by the district

court.” (internal quotation marks omitted)).




                                          42
                              IV.   CONCLUSION

     For the foregoing reasons, the judgments of the district court are AFFIRMED

IN PART, VACATED IN PART, AND REMANDED.




                                       43
