
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1276                               CPC INTERNATIONAL, INC.,                                Plaintiff - Appellant,                                          v.                             NORTHBROOK EXCESS & SURPLUS                                  INSURANCE COMPANY,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Jerome P.  Facher, with  whom Michelle  D. Miller,  Nicholas               _________________             ___________________   ________          Carter, Hale  and Dorr,  David L. Harris,  Geoffrey A.  Price and          ______  ______________   _______________   __________________          Lowenstein,  Sandler, Kohl,  Fisher &  Boylan were  on brief  for          _____________________________________________          appellant.               Philip  J. McGuire, with whom Douglas G. Shreffler, Gleason,               __________________            ____________________  ________          McGuire  & Shreffler,  Kenneth P.  Borden,  Higgins, Cavanaugh  &          ____________________   __________________   _____________________          Cooney,  Stephen W. Miller,  James B.  Burns  and Clark,  Ladner,          ______   _________________   _______________      _______________          Fortenbaugh & Young were on brief for appellee.          ___________________                                 ____________________                                   January 25, 1995                                 ____________________                    TORRUELLA,  Chief  Judge.     Plaintiff-appellant,  CPC                    TORRUELLA,  Chief  Judge.                                ____________          International,  Inc.   ("CPC"),  filed  this  action   seeking  a          declaration that defendant-appellee, Northbrook  Excess & Surplus          Insurance Company ("Northbrook"),  is obligated  to indemnify  it          for  environmental  cleanup  costs  related  to  land  and  water          contamination   allegedly   caused  by   Peterson/Puritan,   Inc.          ("Peterson/Puritan"), a former  subsidiary of CPC.  At  the close          of  CPC's evidence in  the jury trial  of the  case, the district          court granted Northbrook's  motion, pursuant to  Fed. R. Civ.  P.          50(a), for  judgment as  a matter  of law.   CPC  appeals 1)  the          district court's pretrial choice-of-law decision predicting  that          a  New Jersey  court would  apply  the substantive  law of  Rhode          Island and 2) the district court's  grant of judgment as a matter          of law.   For the reasons  stated herein, we affirm  the district          court's  choice-of-law decision  and certify  a  question to  the          Rhode Island Supreme Court.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                    A.  Factual Background                    A.  Factual Background                        __________________                    The ultimate issue  in this case is  whether Northbrook          is obligated  to indemnify  CPC for  environmental cleanup  costs          related   to   land   and    water   contamination   caused    by          Peterson/Puritan, an  aerosol packaging  plant formerly  owned by          CPC.     CPC  is  a  multinational  packaging  and  manufacturing          corporation headquartered  in New Jersey.   From July 1,  1979 to          July  1, 1980,  Northbrook  served as  CPC's  first layer  excess                                         -2-          insurance carrier, with a $25 million umbrella liability policy.                    In 1968, CPC  acquired the Puritan Aerosol  Company and          renamed  it  Peterson/Puritan.    Peterson/Puritan  manufactures,          among other things, flea spray, hair spray, spot remover and oven          cleaner.   Its manufacturing facility  is located in the  town of          Cumberland,  Rhode   Island,  on  a   seventeen-acre  site  ("the          Peterson-Puritan  site") fronted  on  its  western  side  by  the          Blackstone River.   In 1979, both Cumberland  and the neighboring          town  of  Lincoln  discovered  chemical  contamination  in  their          municipal water supplies,  the Quinnville Wellfields.   The wells          were closed later that year.                    In  1980,  the United  States  Environmental Protection          Agency ("EPA") hired the environmental engineering firm Goldberg-          Zoino and  Associates to conduct  a hydrogeological study  of the          aquifer underlying the Blackstone  River (the "GZA Report").   In          1982, based on the results of the GZA Report, the Town of Lincoln          sued Peterson/Puritan for contamination  of the Quinnville Wells.          That  suit was settled in 1984 for  $780,000.  The settlement was          paid  by Northwestern  National Insurance  Company ("Northwestern          National"),  CPC's primary insurance carrier, under a policy with          a coverage limit of $1 million.                    In   1983,   EPA   placed   an   area   including   the          Peterson/Puritan  site and  the aquifer  east  of the  Blackstone          River    (designated  by  the  EPA as  "OU-1")  on  its  National          Priorities  List.     In   1987,  following   several  years   of          negotiations, EPA  issued  an Administrative  Order  by  Consent,                                         -3-          pursuant   to    the   Comprehensive    Environmental   Response,          Compensation and  Liability Act ("CERCLA"),  42 U.S.C.    9601 et                                                                         __          seq., which identified Peterson/Puritan  as the party responsible          ___          for numerous hazardous chemicals migrating  into the groundwater,          and   ordered   Peterson/Puritan    to   investigate   additional          responsible parties and  further analyze site conditions.   Later          that year, Northwestern National informed CPC and Northbrook that          the  primary   insurance  policy  was  exhausted,  thus  bringing          Northbrook into the fold.1                    In July of  1987, CPC filed suit  against Northbrook in          New  Jersey state court seeking a  declaration that Northbrook is          obligated to  indemnify it  for environmental  cleanup costs  and          damages arising from the Town  of Lincoln settlement and the EPA-          ordered  cleanup.    On  the  basis  of  diversity  jurisdiction,          Northbrook removed the case  to the United States  District Court          for the District of New Jersey.  In 1989, the New Jersey district          court granted Northbrook's motion to transfer venue to the United          States District Court for the District of Rhode Island.                    After   the  transfer,  CPC   filed  a  motion   for  a          declaration  that the substantive law of  New Jersey governs this          litigation.  In an Opinion dated  June 21, 1990, the Rhode Island          district court concluded, first, that in ruling  upon the choice-                                        ____________________          1  In May of 1987, CPC agreed to sell Peterson/Puritan to Hi-Port          Industries,  Inc.,  a  Texas  corporation.    As  part   of  that          agreement,  Peterson/Puritan assigned to CPC its rights to claims          under any  insurance policy for  expenses already paid by  CPC in          connection with  the environmental  contamination claims  against          Peterson/Puritan.                                         -4-          of-law issue it must apply the law of the state which  would have          been applied  had the change  of venue not occurred  and, second,          that a New Jersey  court would apply New Jersey law  to this case          because, as the  home base of the  insured, CPC, it has  the most          significant interest in the outcome of the case.  CPC Int'l, Inc.                                                            _______________          v. Northbrook Excess & Surplus Ins. Co., 739 F. Supp. 710, 713-15             ____________________________________          (D.R.I. 1990).                    The parties  filed cross-motions  for summary  judgment          and, on  March 15, 1991,  the district court denied  CPC's motion          for summary judgment and allowed Northbrook's cross-motion on the          ground that the pollution exclusion clause in Northbrook's policy          precluded coverage  for gradual  pollution.   The district  court          concluded that CPC failed to sustain its burden of establishing a          genuine issue of fact  with respect to whether the  contamination          of the aquifer was "sudden and accidental," within the meaning of          New Jersey law,  and therefore held that the  pollution exclusion          applied.   CPC Int'l,  Inc. v. Northbrook  Excess &  Surplus Ins.                     ________________    __________________________________          Co., 759 F. Supp. 966, 976 (D.R.I. 1991).          ___                    CPC appealed  and, on March  24, 1992, we  reversed the          district court's  grant of  summary judgment  for Northbrook  and          remanded the case  to the district court.  We  concluded that, in          predicting how the New Jersey  Supreme Court would interpret  the          "sudden  and  accidental"  provision,  the  district  court  gave          insufficient  weight  to  decisions of  the  New  Jersey Superior          Court's Appellate  Division (New Jersey's  intermediate appellate          court),  which had  concluded that  the  "sudden and  accidental"                                         -5-          provision  is ambiguous  and  had  interpreted  it  favorably  to          insureds as  providing coverage for  gradual pollution.   See CPC                                                                    ___ ___          Int'l, Inc. v.  Northbrook Excess and Surplus Ins.  Co., 962 F.2d          ___________     _______________________________________          77, 97-98, reh'g denied, 962 F.2d 98 (1st Cir. 1992).2                     ____________                    After  the  case  was  remanded,  Northbrook moved  for          reconsideration  of  the  district   court's  1990  choice-of-law          decision.  In a Memorandum and Order dated December 16, 1993 (the          "Second Choice-of-Law  Decision"),  the  district  court  granted          Northbrook's  motion, holding that  the substantive law  of Rhode          Island  would  henceforth  govern  the case.    We  denied  CPC's          petition for mandamus.                    The  case went  to trial  on  January 28,  1994.   Over          eleven  days,  CPC  offered  testimony  from  several  witnesses,          including  three   experts,   and   employees   of   the   former          Peterson/Puritan  facility.    At the  close  of  CPC's evidence,          Northbrook moved for  judgment as a matter  of law under Fed.  R.          Civ.  P.  50(a).    On  February 16,  1994,  the  district  court          delivered a detailed oral opinion concluding that CPC had  failed          to present evidence  from which a reasonable  jury could conclude          that there was an "occurrence"  -- an event resulting in property          damage -- during the policy period.  The district court therefore                    ________________________          granted Northbrook's  motion  for judgment  as a  matter of  law.                                        ____________________          2  Because the New Jersey Supreme Court had never interpreted the          "sudden and accidental" provision, and New Jersey does not have a          procedure  for  certification of  questions,  the district  court          based  its decision on  its interpretation of  decisions from New          Jersey's  trial and appellate  courts, and general  principles of          contract  interpretation  gleaned  from a  review  of  New Jersey          Supreme Court cases.  See generally CPC Int'l, 759 F. Supp. 966.                                _____________ __________                                         -6-          This appeal followed.                                         II.                                         II.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                    We review  the district court's  choice-of-law decision          de novo.  See Crellin Technologies, Inc. v. Equipmentlease Corp.,          __ ____   ___ __________________________    ____________________          18 F.3d  1, 4  (1st Cir.  1994).   With respect  to the  district          court's  grant of judgment  as a matter  of law, we  note, at the          outset, that judgment as a matter  of law is proper at the  close          of the plaintiffs' case only when, after scrutinizing plaintiffs'          evidence and the  inferences reasonably to be  drawn therefrom in          the  light most  favorable  to the  plaintiffs,  the trial  court          concludes that no reasonable jury could find in plaintiffs' favor          on   any  permissible  claim   or  theory.     Rol n-Alvarado  v.                                                         ______________          Municipality  of  San  Juan,  1  F.3d 74,  76  (1st  Cir.  1993).          ___________________________          Judgment as a matter of law may  be entered only if the evidence,          viewed from this perspective, is such that reasonable minds could          not differ as to the outcome.  Id.                                           __                    We review  the Rule 50(a) motion decision  de novo, see                                                               __ ____  ___          Salve Regina Coll. v. Russell,  499 U.S. 225, 231-32, 111 S.  Ct.          __________________    _______          1217, 113  L.Ed.2d 190 (1990);  Jordan-Milton Mach., Inc.  v. F/V                                          _________________________     ___          Teresa Marie, II, 978 F.2d 32, 34 (1st Cir. 1992), under the same          ________________          standards governing the district court, Rol n-Alvarado, 1 F.3d at                                                  ______________          76,  with  a  view  to  the legal  sufficiency  of  the  evidence          presented by the plaintiffs.                                           III.                                         III.                                      DISCUSSION                                      DISCUSSION                                         -7-                    CPC contends that  the district court erred,  first, in          determining that  Rhode Island law  would govern the  case, after          previously determining  that New  Jersey law  would govern,  and,          second,  in concluding that  CPC had  failed to  present evidence          from which a reasonable jury could find in its favor.3                    A.  Choice of Law                    A.  Choice of Law                        _____________                    CPC asserts that  the district court erred  in changing          its  original choice-of-law determination.  CPC makes two related          arguments in support of this assertion.  First, CPC contends that          the district  court violated  the "law of  the case"  doctrine in          changing  its  original   choice-of-law  ruling.    Second,   CPC          maintains  that the district  court's second choice-of-law ruling          was erroneous  -- i.e., that a  New Jersey court would  not apply          the substantive law of Rhode Island to this case.                    In its  original choice-of-law  decision, the  district          court ruled that  a New Jersey court would  apply the substantive          law of New Jersey to the facts of this case.  The court concluded          that, under New Jersey's choice-of-law rules, New Jersey, as  the          location  of  the insured,  has  the  strongest interest  in  the          outcome of the case.  The court rejected  Northbrook's contention          that  the  substantive law  of  Rhode  Island,  the site  of  the          contamination, or, in the alternative,  the law of Illinois,  the          state  in which  the  insurer accepted  the  risk, should  apply.                                        ____________________          3   CPC also maintains that the  district court erred in deciding          the case on "general  principles of law," rather than  the law of          New Jersey or  Rhode Island.  We address this contention with our          discussion of the merits of the case.                                         -8-          Northbrook  sought,  unsuccessfully,  to have  the  choice-of-law          question certified  to  this  court.   The  district  court  then          granted Northbrook's motion for summary judgment under New Jersey          law.                    In reversing  the  district  court's  summary  judgment          ruling, we noted that the  district court's June 21, 1990 choice-          of-law decision that New Jersey law governs was not questioned on          appeal and that,  therefore, it "is law of the case."  CPC Int'l,                                                                 _________          962 F.2d at 91.   We rejected Northbrook's petition for rehearing          on  the choice-of-law issue,  concluding that Northbrook  did not          preserve  the issue  on appeal.    After the  case was  remanded,          Northbrook  filed a  motion requesting  that  the district  court          reconsider its previous choice-of-law ruling.                    In its  Second  Choice-of-Law  Decision,  the  district          court  made  two  related rulings.    First,  the district  court          decided  that the New  Jersey Supreme Court's  recent decision in          Gilbert  Spruance   Co.  v.  Pennsylvania   Manufacturers'  Ass'n          _______________________      ____________________________________          Insurance Co., 629 A.2d 885  (N.J. 1993), represents "a clear and          _____________          contrary  change  in  the  law   applicable  to  the  case"  and,          therefore, that  "the law of  the case presumption  is overcome."          Second,  the court  held that  a New  Jersey court,  applying the          newly articulated principles of Gilbert Spruance, would apply the                                          ________________          substantive law  of Rhode Island to  the facts of  this case and,          therefore, that Rhode  Island law,  rather than  New Jersey  law,          would govern this litigation.                    As noted  previously,  under  normal  circumstances  we                                         -9-          review de novo  a district court's choice of  the substantive law                 __ ____          to  apply in  a  particular  case.   In  this  case, however,  an          additional  consideration  guides  our  review  of  the  district          court's  choice-of law  decision.   Under the  "law of  the case"          doctrine, a decision by an appellate court on a particular issue,          unless  vacated  or  set  aside,  governs the  issue  during  all          subsequent  stages of the  litigation.  United  States v. Rivera-                                                  ______________    _______          Mart nez, 931  F.2d 148, 151  (1st Cir.), cert. denied,  ___ U.S.          ________                                  ____  ______          ___, 112 S. Ct. 184, 116 L.Ed.2d 145 (1991).  The law of the case          doctrine bars litigants from  rearguing issues previously decided          on appeal.   See, e.g., United States v. Rosen, 929 F.2d 839, 842                       ___  ____  _____________    _____          n.5 (1st Cir.),  cert. denied, ___ U.S.  ___, 112 S. Ct.  77, 116                           ____  ______          L.Ed.2d 51 (1991); United States v.  De Jes s, 752 F.2d 640, 642-                             _____________     ________          43 (1st Cir.  1985); White v. Martha, 377 F.2d 428, 431 (5th Cir.                               _____    ______          1967).  The doctrine is  based on considerations of "stability in          the  decisionmaking process,  predictability  of results,  proper          working  relationships between  trial and  appellate courts,  and          judicial economy."  United  States v. Connell, 6 F.3d 27, 30 (1st                              ______________    _______          Cir.  1993).  Under  the law of  the case doctrine,  when a trial          court, on remand, seeks  to dispose of a case  in accordance with          an appellate court's mandate, it "'must implement both the letter          and the spirit of the  mandate, taking into account the appellate          court's  opinion  and  the  circumstances  it  embraces.'"    Id.                                                                        __          (quoting  United States  v. Kikumura,  947 F.2d  72, 76  (3d Cir.                    _____________     ________          1991)).                    The law of the case was not intended, however, to serve                                         -10-          as  an absolute  bar to  reconsideration, nor  a limitation  on a          federal court's  power.   Rivera-Mart nez, 931 F.2d  at 151.   We                                    _______________          have,  therefore, recognized  that a  district court  may,  as an          exception to the  law of the case doctrine,  reexamine a previous          ruling  when "controlling  authority has  since  made a  contrary          decision of the law applicable to such issues. . .  ."  Id.4  CPC                                                                  __          argues  that the New  Jersey Supreme Court's  decision in Gilbert                                                                    _______          Spruance  does not  represent  "a contrary  decision  of the  law          ________          applicable"  to  the  district   court's  original  choice-of-law          decision.                    We  agree  with the  district  court's  conclusion that          Gilbert  Spruance represents a decision  which is contrary to the          _________________          law as applied  by the district court in  its original choice-of-          law decision.  We also think that, although Gilbert Spruance does                                                      ________________          not  necessarily mandate  the decision  reached  by the  district                           _______          court,  it  certainly  provides ample  support  for  the district          court's prediction  that the New  Jersey Supreme Court,  if faced          with the question,  would conclude that  Rhode Island law  should          govern this dispute.                    In its  original  choice-of-law  ruling,  the  district          court analyzed  a host of  decisions by the New  Jersey Appellate          Division.   The  district court  also reviewed  what was,  at the                                        ____________________          4  Under the law of the case doctrine, issues once decided should          not be reopened  "'unless the evidence on a  subsequent trial was          subsequently  different, controlling  authority has since  made a          contrary decision  of the law  applicable to such issues,  or the          decision   was  clearly  erroneous  and  would  work  a  manifest          injustice.'"  Rivera-Mart nez, 931 F.2d  at 151 (quoting White v.                        _______________                            _____          Martha, 377 F.2d 428, 432 (5th Cir. 1967)).          ______                                         -11-          time,  the  New  Jersey  Supreme  Court's  most  recent  decision          concerning choice-of-law  in the  liability-insurance context  --          State Farm Mut. Auto. Ins. Co. v.  Estate of Simmons, 84 N.J. 28,          ______________________________     _________________          417  A.2d 488  (1980) --  and predicted  that a New  Jersey court          would   consider  New  Jersey,  the  location  of  the  insured's          principal  headquarters, the state with the strongest interest in          the outcome of the case.  In eliminating the law of  Rhode Island          as  a possibility,  the district  court relied  on the  Appellate          Division's decision in  Westinghouse Elec. Corp. v.  Liberty Mut.                                  ________________________     ____________          Ins. Co., 233 N.J.Super. 463, 559 A.2d 435 (App.Div. 1989), which          ________          adopted the "uniform-contract-interpretation" approach to choice-          of-law   determinations.       Under   that   approach,    policy          interpretation  should   be  uniform  nationwide   and  not  vary          according to the location of the risk.                    At the time of the district court's first choice-of-law          opinion, State  Farm  was the  controlling  decision of  the  New                   ___________          Jersey Supreme Court with respect  to choice-of-law issues in the          liability-insurance context.   State Farm held that,  because the                                         __________          law  of the  place  of contract  "generally  comport[s] with  the          reasonable expectations  of the parties  concerning the principal          situs of  the insured risk,"  that state's law should  be applied          "unless  the  dominant  and significant  relationship  of another          state to the parties and  the underlying issue dictates that this          basic rule should yield."  State Farm, 84 N.J. at 37.  State Farm                                     __________                  __________          directs  courts, in  making that  determination,  to rely  on the          factors  and  contacts  set  forth  in  sections  6  and  188  of                                         -12-          Restatement (Second)  of Conflicts  of Laws (1971).   Id.  at 34-                                                                __          35.5  Thus, State Farm  creates a rebuttable presumption that the                      __________          law of the state where the contract was entered into  will govern          the dispute.  See J. Josephson, Inc. v. Crum & Forster  Ins. Co.,                        ___ __________________    ________________________          265 N.J.Super. 230, 239, 626 A.2d 81, 86 (App.Div. 1993).                    Gilbert Spruance changes  the presumption by  rejecting                    ________________          the "uniform-contract-interpretation  approach" and  adopting the          "site-specific" approach  to choice-of-law determinations  in the          casualty-insurance  context.  See  Gilbert Spruance, 134  N.J. at                                        ___  ________________          111-14.  The New Jersey Supreme Court now directs courts to look,          first, to  section 193 of  Restatement (Second)  of Conflicts  of          Laws,  which  sets forth  the  site-specific rule  by  creating a          presumption that a casualty-insurance policy be interpreted under          the substantive law of the state that "the parties understood was          to be  the principal  location of the  insured risk,  unless some          other  state has a more significant relationship" to the parties,          the  transaction, and  the  outcome of  the  controversy under  a          Restatement section 6  analysis.  Gilbert  Spruance, 134 N.J.  at                                            _________________          111 (quoting  Restatement (Second) of  Conflicts of Laws    193).                                        ____________________          5  Restatement  (Second) of Conflict of Laws    188 provides that          the general rule in contract actions is that the law of the state          with  the most significant  relationship to  the parties  and the          transaction  under the  principles  stated  in  Restatement     6          governs.  Section 6 lists  several factors to be considered  in a          choice-of-law analysis: 1) the relevant policies of the forum; 2)          the   relevant  policies  of  other  interested  states;  3)  the          protection of  justified  expectations;  4)  the  basic  policies          underlying the particular  field; 5) the needs of  the interstate          and  international  systems;  6)  certainty, predictability,  and          uniformity  of  result; and  7)  the  ease in  determination  and          application of the law applied.                                         -13-          Gilbert Spruance  also provides that  when the subject  matter of          ________________          the  insurance is a predictably multistate operation or activity,          "the  significance of the principal  location of the insured risk          diminishes," and "the governing law is that of the state with the          dominant significant relationship according to the principles set          forth in Restatement section 6."  Id. (citations omitted).                                            __                    The Gilbert Spruance decision resolved a conflict among                        ________________          different   panels  of   New  Jersey's   Appellate   Division  by          specifically   rejecting   the   "uniform-contract-interpretation          approach" to choice-of-law determinations and adopting the "site-          specific" approach.   Compare  Westinghouse, 559  A.2d 435;  with                                _______  ____________                  ____          Diamond Shamrock  Chemicals Co. v.  Aetna Cas. & Surety  Co., 258          _______________________________     _______________________          N.J.Super. 167, 609 A.2d 440  (App.Div. 1992) (interest of  state          where  pollution site lies  is "more dominant  and significant");          Johnson Matthey, Inc. v.  Pennsylvania Mfrs. Ass'n Ins.  Co., 250          _____________________     __________________________________          N.J.Super 51,  593 A.2d  367 (App.Div. 1991)  (interest of  state          where  pollution  site lies  is  "paramount").   In  its  initial          choice-of-law  ruling, the district court relied on the reasoning          behind the Westinghouse court's adoption of the uniform-contract-                     ____________          interpretation  approach in  determining that  the  law of  Rhode          Island, the  location of the  risk, should not govern  this case.          CPC Int'l,  739 F. Supp.  at 714.   The Gilbert  Spruance court's          _________                               _________________          rejection of  the uniform-contract-interpretation is  therefore a          highly  significant  change  in the  controlling  authority.   It          changes  the equation  upon which  the  district court  relied in          making its initial choice of law decision. The district court was                                         -14-          obligated to predict which state's substantive law the New Jersey          Supreme Court would  apply to the facts of this case, a task made          all  the  more difficult  because  New  Jersey  does not  have  a          procedure for certifying questions.  In our  view, the principles          announced by the New Jersey Supreme Court represent a significant          change in the law  applicable to the district  court's choice-of-          law  decision.  We conclude, therefore, that the district court's          departure from the law of the case was justified.                    We also conclude, on de novo review, that the  district                                         __ ____          court's prediction that the New  Jersey Supreme Court would apply          the law of Rhode Island in  this case is supported by New  Jersey          case  law,  particularly  the  principles  announced  in  Gilbert                                                                    _______          Spruance.   Under  the  site-specific  rule  adopted  by  Gilbert          ________                                                  _______          Spruance, it  is presumed that  the substantive law of  the state          ________          which  is  the principal  location of  the insured  risk governs,          unless another state  has a more significant overall  interest in          the case.   Gilbert Spruance, 134 N.J. at 112.  New Jersey's only                      ________________          connection with  the case is that CPC's  headquarters are located          in New Jersey.  Moreover, Gilbert Spruance explained that "[w]hen                                    ________________          the waste-producing  facility and the  waste site are  located in          the same state,  their common location  makes the application  of          [the Restatement's choice-of-law  factors] straightforward."  Id.                                                                        __          at 107.   As the district court noted, in this case the waste was          both generated and disposed of in Rhode Island.                    CPC argues that  Gilbert Spruance explicitly left  open                                     ________________          the question  of whose law  would apply in  a case such  as this.                                         -15-          CPC cites the following language in support of this proposition.                         We  have no  occasion  to consider  in                      this  appeal the  problem presented  when                      waste generated in New Jersey predictably                      is  disposed of in  another state. .  . .                      Specifically, we  express no view  on the                      proposition . . . that when another state                      is the foreseeable location of the waste-                      site, the court must  engage in a section                      6 analysis to determine if that state has                      the  most  significant  relationship with                      [the case].          Id. at 113-14.  In our view, this language merely leaves open the          __          possibility  that when  waste  is  generated  in New  Jersey  and                                             _________________________          disposed of in  another state, New Jersey law  might still apply.          As noted, in this case, the waste was both generated and disposed                                                ____          of in  Rhode Island.   Under such  circumstances, there  is every          reason  to  predict  that  the  New  Jersey Supreme  Court  would          recognize with equal vigilance the "urgent concern for the health          and  safety of  [Rhode  Island's]  citizens"  implicated  by  the          generation and dumping of toxic waste in that state.  See  id. at                                                                ___  __          113 (quoting Johnson Matthey, 250 N.J.Super. at 57.                       _______________                    For  the  foregoing  reasons,  we affirm  the  district          court's decision  that the New  Jersey Supreme Court  would apply          the substantive law of Rhode Island in this case.  We now turn to          the merits  of  this  appeal --  the  district  court's  decision          granting Northbrook's motion for judgment as a matter of law.                    B.  The Grant of Judgment as a Matter of Law                    B.  The Grant of Judgment as a Matter of Law                        ________________________________________                      1.  The Policy Provisions                      1.  The Policy Provisions                          _____________________                    Northbrook issued  a comprehensive liability  policy to          CPC which was in effect from  July 1, 1979 through July 1,  1980.                                         -16-          Pursuant to that  policy, Northbrook agreed to  indemnify CPC for          personal injuries,  property damage and/or  advertising liability          "caused  by or arising out  of each Occurrence happening anywhere          in the world."   The policy defines "property damage" as "loss of          or direct  damage to or  destruction of tangible  property (other          than  property owned  by  an  insured) and  which  results in  an          Occurrence  during  the  policy  period."    The  policy  defines          "Occurrence" as:                      an accident, event or happening including                      continuous   or   repeated   exposure  to                      conditions  which  results,   during  the                      policy   period,   in   Personal  Injury,                      Property Damage or  Advertising Liability                      neither  expected nor  intended from  the                      standpoint of the Insured                      .  . .  .    All  such  Personal  Injury,                      Property  Damage  or  Advertising  Injury                      caused by one event or repeated  exposure                      to  substantially  the   same  conditions                      shall  be  deemed  to   result  from  one                      Occurrence.                      2.  The District Court Decision                      2.  The District Court Decision                          ___________________________                    In  ruling upon Northbrook's  motion for judgment  as a          matter of  law, the district  court made the  following pertinent          findings   of   fact.     Between  1963   and  the   late  1970s,          Peterson/Puritan  polluted the  environment in  the  area of  its          plant in Cumberland,  Rhode Island.   Peterson/Puritan  employees          routinely dumped chemicals, including  volatile organic compounds          ("VOCs"), into the drain and septic systems.  In 1974, a railroad          tank container at Peterson/Puritan spilled causing  approximately          6,200 gallons of  the solvent perchloroethylene to spill onto and          into the soil (the "1974 PERC spill").                                         -17-                    The  theory of  the  case presented  by  CPC at  trial,          primarily through the testimony of two expert witnesses, was that          prior   to   the  1974   PERC   spill,  the   VOCs   dumped  from          Peterson/Puritan were in the soil but, because of the presence of          silt and clay, had not reached groundwater.  In other words, they          were stagnant.   Dr. Tod Delaney  testified that  the PERC  spill          mobilized  these  VOCs  in  the   soil  and  led  them  into  the          groundwater  and, eventually,  the  combined  force  travelled  a          several thousand foot path to  the Quinnville Wells.  Dr. Delaney          testified that,  but for  the 1974 PERC  spill, there  would have          been  no pollution  of the  Quinnville Wells.   Dr.  Delaney also          testified that  the leading edge  of the 1974 PERC  spill reached          and contaminated the Quinnville Wells in 1979,  during the policy          period.  Pollution of the Quinnville Wellfields was discovered in          October 1979, during the policy period.                    In its  detailed oral  opinion granting  judgment as  a          matter of law  for Northbrook, the district  court reasoned that,          because the policy was  only in effect from July 1,  1979 to July          1,  1980, the burden  at trial was  upon CPC  to present evidence          from  which a  reasonable  jury  could infer  that  there was  an          "occurrence" during that period.                    The  district court stated  that CPC's theory  at trial          was that because the EPA  desires to reopen the Quinnville Wells,          and cleaning  the aquifer is  directly related to that  goal, the          "occurrence" for purposes of insurance should be measured by when          the contamination  of the  wells occurred.   The  difficulty with                                         -18-          this theory, as the district court explained, is that the Town of          Lincoln's  claim   against  Peterson/Puritan  to  clean   up  the          Quinnville Wells had been settled  in 1984 and Northwood had paid          the  settlement under its  insurance policy.   The present action          concerns the  EPA's claims against CPC regarding the aquifer east          of the Blackstone River -- the area designated by the EPA as OU-1          -- not the Quinnville Wells.                    The  district court  stated  that  whatever  the  EPA's          motivations concerning  reactivating the Quinnville Wells  in the          future  may be, "the  fact of the  matter is that  the area being          remediated  is east  of the  Blackstone River."   The  court then          concluded that the  "occurrence" in this  case took place  before          the policy became effective.                      The plaintiff seeks to recover the  costs                      of remediation of the aquifer east of the                      Blackstone  River  from  this  defendant.                      The  evidence is clear  in this case from                      the experts  presented by  the plaintiff,                      that the aquifer  was damaged within  the                           ____________________________________                      meaning  of   the  policy  when   it  was                      _________________________________________                      polluted by the PERC spill in 1974 within                      _________________________________________                      days or at  best, weeks of June  21, 1974                      _________________________________________                      when  this PERC  spill  took place,  five                      __________________________________                      years  or more before  July 1,  1979 when                      this policy took effect.                    Because  it  found  that the  "occurrence"  took  place          before the policy came into  effect, the district court concluded          that,  as  a matter  of  law,  Northbrook  was not  obligated  to          indemnify CPC.  The district court explained that:                      If  there is a principle of insurance law                      that means  anything it is  the principle                      that  insurance  protects  a policyholder                      against future contingent events.  It  is                      not   for   the  purpose   of   providing                                         -19-                      compensation for events that have already                      taken place, and that is so under the law                      of New  Jersey, Rhode  Island, the  First                      Circuit, or any other jurisdiction within                      the United  States.   So, simply  on that                      ground alone, the occurrence in this case                      clearly  took  place  before  the  policy                      became   effective,  there   can  be   no                      recovery  of the  remediation costs  from                      this insurance carrier.                    The district court also rejected CPC's case for another          reason.     The  court,  accepting  arguendo  CPC's  theory  that                                              ________          remediation  of  the  aquifer  is  tied  in  with  reopening  the          Quinnville Wells,  concluded that CPC  had failed to  sustain its          burden of showing that damage  to the Quinnville Wells took place          during the  policy period.   Dr. Willard  Murray testified  that,          depending upon the undetermined porosity of the soil, the leading          edge  of  the PERC  plume  reached the  Quinnville  Wells between          October  or November  1978, and  December 1981.   Reviewing  that          testimony, the district court noted  that it is "just as probable          that that army of VOC's led by the PERC arrived at the Quinnville          Wells in 1978  or early 1979 as it is that  it arrived after July          1, 1979."  The district court therefore concluded that "[n]o jury          could find that  this pollution plume  arrived at the  Quinnville          Wells after July 1, 1979 without completely speculating."                    The  district court held that there is "no possibility"          that  CPC  could  recover  from  Northbrook  for  the  costs   of          remediation of the OU-1 area and, therefore, granted Northbrook's          motion.   In conclusion,  the court stated  that "[t]his  case is          being decided on general principles  of law and it really doesn't          matter whose law applies in this case."                                         -20-                    By declining  to look  specifically to the  controlling          law in  this case, the  law of  Rhode Island, the  district court          essentially held that, under general principles of insurance law,          there  is one  trigger  date  for calculating  the  time when  an          "occurrence"  causing "property damage" takes place; or, at least          that, if there is more than one possible trigger date, CPC  could          not recover under any of them.  In fact, there are at least seven          trigger dates utilized by different jurisdictions for determining          the  time at  which an occurrence  causing property  damage takes          place.6    Moreover,  as  discussed  below,  CPC  could  possibly          recover  under one  or  more of  these  theories.   Thus,  it  is          critical  to determine  which trigger  theory  of coverage  Rhode          Island would apply to this case.                    As  noted, there  are at  least seven theories  used in          different jurisdictions for determining when an occurrence policy          provision is triggered.  See generally In re Acushnet River & New                                   _____________ __________________________          Bedford  Harbor: Proceedings  Re Alleged  PCB  Pollution, 725  F.          ________________________________________________________          Supp.  1264,  1274-75   (D.Mass.  1989)  (describing  the   seven          standards), aff'd in part and rev'd in part  on other grounds sub                      _____________________________________________________          nom., Lumbermens  Mut. Cas. Co.  v. Belleville Indus.,  Inc., 938          ____  _________________________     ________________________          F.2d 1423 (1st Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct.                                     ____________          969, 117 L.Ed.2d  134 (1992).  These seven  theories or standards          are as follows.                                        ____________________          6   These different legal  standards are critical because,  as is          the  case here, most, if  not all, "occurrence" policy provisions          only allow  recovery for  an occurrence  causing property  damage          during the policy period.                                         -21-                    First,  the wrongful  act theory  would  hold that  the          occurrence causing property damage took place when the  1974 PERC          spill occurred.  Second, the  exposure theory would hold that the          occurrence  causing  property  damage took  place  when  the VOCs          leeched  into  the  environment.   See  Continental  Ins.  Co. v.                                             ___  ______________________          Northeastern  Pharmaceutical and Chem.  Co., 811 F.2d  1180, 1189          ___________________________________________          (8th Cir. 1987),  modified on other grounds after  reh'g en banc,                            ______________________________________________          842 F.2d 977  (8th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.                                         ____________          Ct. 66, 102 L.Ed.2d 43  (1988).  Third, the injury-in-fact theory          would hold  that the occurrence  causing damage to  property took          place  when the  level  of VOCs  was  such that  the aquifer  was          actually injured  or contaminated.   See  American Home  Products                                               ___  _______________________          Corp.  v. Liberty  Mut.  Ins. Co.,  748 F.2d  760,  765 (2d  Cir.          _____     _______________________          1984).7   Fourth,  the manifestation  theory would hold  that the          occurrence causing  property damage  took place  when the  damage          became "reasonably  capable of .  . . diagnosis."   Eagle Pitcher                                                              _____________          Indus., Inc. v.  Liberty Mut. Ins. Co., 682 F.2d 12, 25 (1st Cir.          ____________     _____________________          1982) (applying the  law of Ohio and Indiana),  cert. denied, 460                                                          ____________          U.S. 1028, 103 S. Ct. 1280, 75 L.Ed.2d  500 (1983); American Home                                                              _____________          Assurance Co. v.  Libby-Owen-Ford Co., 786 F.2d 22,  30 (1st Cir.          _____________     ___________________          1986) (applying  Ohio law).   Fifth,  the first discovery  theory          would  hold that the  occurrence causing damage  to property took          place  when the property owner actually discovered the pollution.                                        ____________________          7   This appears to  be the theory used  by the district court in          its initial decision, under "general principles of law," that CPC          could not recover because injury  to the aquifer took place "when          it was polluted by the PERC spill in 1974 within days or at best,          weeks of June 21, 1974 when this PERC spill took place . . ."                                         -22-          Pittsburgh  Corning Corp. v.  Travelers Indem. Co.,  No. 84-3985,          _________________________     ____________________          1988  WL 5291  (E.D.Pa. Jan. 20,  1988).   The sixth theory  is a          combination  of the  fourth and  fifth.   Under this  theory, the          occurrence causing damage to property took place when the insured          "knew or should  have known" of the  property damage.  See  In re                                                                 ___  _____          Acushnet,  725  F.  Supp. at  1274  n.17  (citing Bartholomew  v.          ________                                   ______ ___________          Insurance  Co.  of  North  America,  502  F.  Supp.  246,  252-54          __________________________________          (D.R.I.),  aff'd, 655  F.2d 27  (1st  Cir. 1981).   Finally,  the                     _____          continuous  trigger theory would hold that the occurrence causing          property damage  took place both at  the time of exposure  and at          the  time of  manifestation.   Keene  v. Insurance  Co. of  North                                         _____     ________________________          America,  667 F.2d 1034, 1047  (D.C.Cir. 1981), cert. denied, 455          _______                                         ____________          U.S. 1007, 102 S. Ct. 1644, 71 L.Ed.2d 875 (1982).                    The  question of  which  trigger  theory  to  apply  is          critical in this case.  If  the Rhode Island Supreme Court  would          apply the wrongful act, exposure, or injury-in-fact theories, the          district  court's decision  should  be affirmed.    If the  Rhode          Island  Supreme  Court  would  apply   the  manifestation,  first          discovery,  or "reasonably knew  or should have  known" theories,          the case  should be  remanded to  the  district court  for a  new          trial.  The  reason for this is  that, based on the  testimony at          trial,  a reasonable  jury could  have found  that the  1974 PERC          spill caused the VOCs to migrate to the Quinnville Wells and that          the  PERC-led  contaminants  reached  the  wells  before  October                                         -23-          1979.8  Under  the manifestation theory, a  reasonable jury would          be entitled  to infer,  based on  CPC's uncontroverted  evidence,          that  the  first time  CPC  should have  known  of damage  to the          aquifer  was  in  October  1979, when  the  contamination  of the          Quinnville  Wells was  discovered.9   It  follows  that the  same          holds  true for  the first  discovery  and "knew  or should  have          known" theories.                    The  district court was obligated to determine which of          these trigger-of-coverage theories the Rhode Island Supreme Court          would apply in this case.  Because it did not, we have endeavored          to do  so here.   In  the end,  however, we  conclude that  Rhode          Island law  is unclear as  to which trigger-of-coverage is  to be          applied  and, therefore, choose  to certify  the question  to the          Rhode Island Supreme Court.                      CPC argues  that Bartholomew,  a case  from the  United                                     ___________                                        ____________________          8   The  particular  testimony  that would  support  this is:  1)          Dr. Delaney's  testimony, that,  but  for  the  PERC  spill,  the          Quinnville wells  would not have been polluted;  2) the testimony          that  the pollution  was  discovered  in  October  1979;  and  3)          Dr. Murray's testimony  that the leading  edge of the  PERC plume          reached  the Quinnville Wells  between October or  November 1978,          and December 1981.  If the jury accepted all these facts as true,          which we must  do on appeal, it could determine that the PERC-led          pollutants, stimulated by  the 1974 PERC spill, reached the wells          before October 1979.          9   The  district court  did  not make  specific  findings as  to          whether CPC  (or Peterson/Puritan)  reasonably should  have known          that the 1974  Perc spill would damage  the environment, although          the court  did note that  "the event  was well recognized  by the          management of Peterson/Puritan."   The district court  also noted          that  it is  "unfortunate that  people  were not  environmentally          tuned in at  that time because, of course, Peterson/Puritan could          have made a substantial claim  against [the railroad carrier] for          polluting the environment."                                         -24-          States District Court for Rhode Island, purporting to apply Rhode          Island   law,  is   the  controlling   Rhode  Island   precedent.          Bartholomew holds  that the  date of the  occurrence is  the date          ___________          when  the insured  "knew or  should have  known" of  the property          damage.10   Northbrook, on  the other  hand,  maintains that  the          Rhode Island Supreme Court's recent decision  in Textron, Inc. v.                                                           _____________          Liberty Mut. Ins. Co., 639  A.2d 1358 (R.I. 1994), indicates that          _____________________          Rhode Island  follows the  "injury-in-fact" theory  -- i.e.,  the          date  of an  occurrence  is  the date  when  the property  damage          occurs.  We  agree that Bartholomew and Textron are  the most apt                                  ___________     _______          cases from  Rhode Island on  the trigger-of-coverage issue.   Our          analysis of  the two cases,  however, leads us to  the conclusion          that they raise more questions than they answer.                    The district  court in  Bartholomew,  finding no  Rhode                                            ___________          Island  law  on  the subject,  predicted  that  the Rhode  Island          Supreme Court  would adopt  the "reasonably knew  or should  have          known"   trigger-of-coverage  standard.      There  are   several          difficulties with this case as  an indicator of Rhode Island law.          First,  our research  indicates that  no Rhode  Island court  has          either explicitly  adopted or rejected  the Bartholomew standard;                                                      ___________          in fact,  to our knowledge, no  Rhode Island court has  ever even                                        ____________________          10    CPC  actually  maintains  that  Bartholomew  establishes  a                                                ___________          "manifestation"   trigger  of  coverage  --  i.e.,  there  is  no          "occurrence" under the policy until the "property damage" becomes          known.   Bartholomew,  however,  clearly holds  that the  date of                   ___________          occurrence  is the  date when  the  insured "knew,  or reasonably                                                              _____________          should  have   known,"  of   the  injury   or  property   damage.          ____________________          Bartholomew, 502 F.  Supp. at 254.  Accord  American Home Assur.,          ___________                         ______  ____________________          786 F.2d at 29 (reciting the Bartholomew test).                                       ___________                                         -25-          cited Bartholomew.   Second, our decision affirming  the district                ___________          court in  that case  did not explicitly  comment on  the standard          adopted  by the  district court,  but rather  relied on  the more          fundamental fact that the "defects were fully  known, indeed sued          for, before the policies took effect."  Thus, we commented, "[w]e          can only construe  the present action as an  attempt to 'job' the          defendants."  Bartholomew  v. Appalachian Ins. Co., 655  F.2d 27,                        ___________     ____________________          29  (1st  Cir.   1981).    Finally,  and   most  importantly,  if          Bartholomew  is in  conflict with  Textron,  obviously the  Rhode          ___________                        _______          Island  Supreme Court  decision  controls  the present  diversity          action.                    In a  footnote in  Textron, Inc.  v. Liberty Mut.  Ins.                                       _____________     __________________          Co., 639  A.2d 1358 (1994),  the Rhode Island Supreme  Court made          ___          the following statement.                      In   the   area    of   general-liability                      insurance, an occurrence  policy provides                      coverage for any "occurrence" which takes                      place during  the policy  period.   Under                      this type  of  policy  it  is  irrelevant                      whether  the resulting  claim is  brought                      against the insured  during or after  the                      policy  period, as  long  as the  injury-                                      _________________________                      causing event  happens during  the policy                      _________________________________________                      period.                      ______          Id. at 1361 n.1 (emphasis  added) (citing DiLuglio v. New England          __                                        ________    ___________          Ins. Co., 959 F.2d 355, 358  (1st Cir. 1992) and Gereboff v.  the          ________                                         ________     ___          Home Indemnity Co., 119  R.I. 814, 818  n.1, 383 A.2d 1024,  1026          __________________          n.1  (1978)).  Northbrook maintains that this statement indicates          that  Rhode Island looks  to the  point when  the injury  in fact          occurs  as the trigger date for coverage.  Although we agree that          it could  be read that  way, we  have several concerns  about the             _____                                         -26-          reliability of  this general  statement as  a predictor  of Rhode          Island law in this case.                    First,  the statement in Textron is entirely dictum; it                                             _______          appears only in a very general fashion and in a footnote;  and it          was not relevant to decision of the case.  In Textron, an insured                                                        _______          sought  indemnification  for  property   damage  which  allegedly          occurred  during the coverage  period but which  was not reported          until twenty-one years  after the last policy's  expiration.  The          case  was disposed  of, in  favor of the  insurer, pursuant  to a          policy  provision  which  required that  the  insured  report the          property damage within one year  of the expiration of the policy.          Textron, 639 A.2d at 1363.  Thus,  the outcome of the case in  no          _______          way depended upon the langauge in the footnote.                    Second, Textron  does  not  cite  Bartholomew,  a  case                            _______                   ___________          purportedly applying Rhode Island law, which is cited extensively          by courts in the First Circuit and other jurisdictions, and which          adopts  an entirely  different standard.   We  think this  raises          questions  as to  exactly how  broad  a sweep  the Textron  court                                                             _______          intended its statement to have.                    Third, the  phrase  "injury-causing  event"  could  (we          think reasonably)  be interpreted  as either  of three  potential          trigger theories.  It could  mean Rhode Island uses the "wrongful          act theory"  in its trigger  of coverage analysis, which  in this          case would be the 1974 PERC spill.   It could mean, as Northbrook          argues,  that  Rhode Island  follows  the  injury-in-fact theory.          Here, according to CPC's own expert witnesses, the injury in fact                                         -27-          would have occurred within days of the 1974 PERC spill.  Finally,          it could refer  to the exposure theory.  In this case, that would          have been  when the VOCs  leeched into the environment  -- within          minutes of the  1974 PERC spill.11  Moreover,  as the Bartholomew                                                                ___________          court noted, the wrongful act theory, which  we think is the most          literal  reading of "injury-causing event," "has been rejected by          the vast majority  of jurisdictions."  Bartholomew, 502  F. Supp.                                                 ___________          at 253 (citing Annotation, 57 A.L.R.2d 1358 (1958)).12                    For the reasons stated above,  we think that the law of          Rhode Island is "unclear" with respect to the trigger-of-coverage          issue.  See  Lehman Brothers v. Schein,  416 U.S. 386, 94  S. Ct.                  ___  _______________    ______          1741, 40  L.Ed.2d 215 (1974).  We also think that the trigger-of-          coverage  issue is determinative  of this  appeal.   We therefore          conclude that the most appropriate  way to resolve the trigger of          coverage  issue,  consistent both  with our  duty to  apply Rhode          Island law  and with  important principles of  federalism, is  to          certify the question  to the Rhode Island  Supreme Court pursuant          to Rule 6 of  the Rhode Island Supreme  Court Rules of  Appellate                                        ____________________          11  Judgment as a matter of law for Northbrook would be justified          under all three of these  theories because, based on the evidence          adduced by  CPC  at  trial,  the  pertinent  events  under  these          theories of coverage did not take place during the policy period.          The  significance  of  the  fact  that  the  statement  could  be          interpreted  as   adopting  any  of  three  different  standards,          however,  lies  not  in  the  substance  of  the  three potential          standards, per se,  but in the way it  reflects the indeterminate                     ___ __          nature of the statement itself.          12  Rhode Island is, of course, entitled to adopt a minority rule          and,  provided it  does not  contravene  federal law,  which this          clearly would not,  we would be bound  to apply it in  this case.          However, given the other considerations listed above, we think it          is appropriate to take this factor into account.                                         -28-          Procedure.                    For the foregoing reasons, the district court's choice-          of-law decision is affirmed and a question certified to the Rhode                             ______________________________________________          Island  Supreme  Court, with  jurisdiction retained  pending that          _________________________________________________________________          determination.          _____________                                         -29-                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                   ________________          No. 94-1276                               CPC INTERNATIONAL, INC.,                                Plaintiff - Appellant,                                          v.                             NORTHBROOK EXCESS & SURPLUS                                  INSURANCE COMPANY,                                Defendant - Appellee.                                   _______________                                    CERTIFICATION                                   _______________                    This  Court hereby certifies a question of Rhode Island          state law to the Rhode  Island Supreme Court, pursuant to Rule  6          of the Rhode  Island Supreme Court Rules  of Appellate Procedure,          and provides a brief statement of the grounds for certification.                    The  insurance policy  at issue  in CPC  Int'l  Inc. v.                                                        ________________          Northbrook Excess & Surplus Ins. Co., No.  94-1276, requires that          ____________________________________          the "occurrence" causing "property damage" must take place during          the policy period in  order for coverage to be provided.   In the          body of its Opinion in that case, this Court has identified seven          different approaches used  by courts  in different  jurisdictions          for determining   when an injury takes place  in order to trigger          coverage.  The different approaches are: the wrongful act theory,          the exposure theory, the injury-in-fact theory, the manifestation          theory,  the  first  discovery theory,  the  "reasonably  knew or          should have  known" theory,  and the  continuous trigger  theory.                                         -30-          Neither  of  the   two  potentially  relevant  cases   the  Court          identified  from Rhode Island -- Textron,  Inc. v. Liberty Mutual                                           ______________    ______________          Insurance  Co.,  639 A.2d  1358  (R.I. 1994)  and  Bartholomew v.          ______________                                     ___________          Appalachian Insurance Co., 502 F. Supp. 246  (D.R.I.), aff'd, 655          _________________________                              _____          F.2d 27 (1981)  -- provides the necessary means  to predict which          trigger-of-coverage standard the Rhode Island Supreme Court would          apply.                    Accordingly, the Court certifies the following question          to the Rhode Island Supreme Court:                        What trigger-of-coverage standard would                      the Rhode  Island Supreme  Court use  for                      determining at what point an "occurrence"                      causing  "property  damage"  took  place,                      within  the  meaning   of  the  insurance                      policy   provisions   provided   in   the                      separate opinion  in this case,  where an                      insured alleges that a spill of hazardous                      contaminants in 1974 migrated through the                      groundwater, causing immediate  injury to                      the pertinent property, which was not, in                      fact, discovered, however, until at least                      1979?                    The  relevant  facts  are  discussed  in  the  separate          opinion in this case.  In putting the above question to the Rhode          Island  Supreme Court, we  wish to make  clear that  we would, of          course,  welcome the advice of the Court on any other question of          Rhode Island law it deems material to this case and upon which it          wishes to comment.                                           -31-                    The Clerk of this court will transmit this question and          our  separate opinion  in this  case,  along with  copies of  the          briefs and  appendix in  this case, to  the Rhode  Island Supreme          Court.                                          United States Court of Appeals                                          for the First Circuit                                          By: _______________________                                              Juan R. Torruella                                              Chief Judge          Dated:  January 19, 1995                                         -32-
