
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1608            DRYDEN OIL COMPANY OF NEW ENGLAND, INC., DRYDEN OIL COMPANY,                  INC., and DRYDEN OIL COMPANY OF PENNSYLVANIA, INC.,                               Plaintiffs, Appellants,                                          v.                          THE TRAVELERS INDEMNITY COMPANY,                   THE TRAVELERS INDEMNITY COMPANY OF ILLINOIS, and                    AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                                                                      ____________________                                 Cyr, Circuit Judge,                                      _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                                                                      ____________________             Darragh K. Kasakoff, with whom Seder  & Chandler was on brief for             ___________________            _________________        appellants.             John A. Nadas,  with whom Bret A. Fausett,  Elizabeth M. McCarron             _____________             _______________   _____________________        and  Choate, Hall  & Stewart  were  on brief  for appellees  Travelers             _______________________        Indemnity Company and Travelers Indemnity Company of Illinois.             Karl S.  Vasiloff, with whom  Catherine M. Colinvaux and  Zelle &             _________________             ______________________      _______        Larson  were on  brief  for  appellee  American  Manufacturers  Mutual        ______        Insurance Company.                                                                                      ____________________                                    August 5, 1996                                                                                      ____________________                             CYR, Circuit  Judge.  Plaintiffs-appellants  Dryden Oil                    CYR, Circuit  Judge                         ______________          Company of  New  England,  Dryden  Oil Company,  and  Dryden  Oil          Company  of Pennsylvania  (collectively:   "Dryden") challenge  a          district  court  ruling rejecting  their  claim  that defendants-          appellees, The Travelers Indemnity Company, The  Travelers Indem-          nity  Company of Illinois (collectively:  "Travelers") and Ameri-          can Manufacturers  Mutual Insurance Company  ("American Mutual"),          are obligated to defend and indemnify Dryden in connection with a          lawsuit brought against  Dryden by Raymond  King, trustee of  the          150  Worcester   Center  Boulevard  Trust   ("Worcester  Trust"),          Dryden's former  landlord.   We affirm in  part, and  reverse and          remand in part.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________          A.   The Historical Facts          A.   The Historical Facts               ____________________                    For the period July 30,  1986, to July 30, 1987, defen-          dant-appellee Travelers issued Dryden (i) a primary comprehensive          general liability insurance policy  ("primary liability policy"),          which included "property damage" and "personal  injury" coverage,          and  (ii) a  catastrophic  umbrella liability  policy  ("umbrella          policy").   For  the period  December 31,  1986, to  December 31,          1987,  Travelers issued  Dryden  a  property  and  inland  marine                                                        insurance policy ("property insurance policy") as well, affording          coverage "against all risks  of direct physical loss  or damage."          Travelers  provided  Dryden  with  similar primary  and  umbrella          liability coverage to July 30, 1988.  Defendant-appellee American                                          2          Mutual  provided  primary  comprehensive  liability  coverage  to          Dryden from July 31, 1988, to December 1, 1989.                       On December 29,  1986, Dryden had leased  150 Worcester          Center Boulevard  (the "Property")  from White  & Bagley  Company          ("White  & Bagley").   Thereafter,  Dryden used the  Property for          mixing and manufacturing industrial lubricants and oils, as White          & Bagley  had done for many years.   On December 30, 1986, Dryden          listed the Property both in its primary and its umbrella liabili-          ty policies with Travelers.  Later, Dryden listed the Property in          its property insurance  policy with Travelers and  its comprehen-          sive liability policies with American Mutual as well.1                     On  December  31,  1986, White  &  Bagley  conveyed the          Property to the White & Bagley  Liquidation Trust.  On August 28,          1987, the White  & Bagley Liquidation Trust sold  the Property to          Worcester Trust, together with an assignment of the Dryden lease.          The  latter transfer occurred  after Worcester Trust  had learned          the  results of  an  environmental  assessment  of  the  Property          conducted pursuant  to Mass. Gen. L. ch.  21E ("Massachusetts Oil          and Hazardous  Material  Release Prevention  and Response  Act"),          which  indicated   "limited  contamination"   requiring  "minimal          remediation."    Dryden  continued to  lease  the  Property until          December 31, 1988.          B.   The Litigation          B.   The Litigation               ______________                                        ____________________               1As Dryden  does not  contend that  the liability  coverages          afforded  under the American Mutual and Travelers policies differ          in any  respect material  to the claims  presented on  appeal, we          need not  discuss either the  Travelers umbrella or  the American          Mutual primary liability policies.                                            3                    In  August   1990,  Worcester  Trust  brought  suit  in          Massachusetts  Superior  Court  against,  inter  alios,  White  &                                                    _____  _____          Bagley, the White & Bagley Liquidation Trust, Dryden and Prescott          Bagley, President  of Dryden  Oil of  New England  (collectively:          "Owners/  Operators"), alleging, among  other things,  that there          had been "spills or releases of oil, industrial lubricants and/or          hazardous material  during  the  transfer,  storing,  mixing  and          manufacturing process" throughout  the time White &  Bagley owned          the  Property, which continued while Dryden occupied the Property          under  its lease  with  White  & Bagley  and  resulted in  severe          contamination from "oil and/or hazardous material."                      After the pleadings were closed, three  counts remained          against,  inter alios,  the  Owners/Operators, including  Dryden.                    _____ _____          Counts I and II charged Dryden with liability for past and future          response  costs imposed upon  Worcester Trust, pursuant  to Mass.          Gen. L. ch.  21E, for damage to  real and personal property,  and          for  related attorney fees,  incurred in connection  with alleged          "releases"  at the  Property.    Count  III charged  Dryden  with          liability for  damages sustained  by Worcester  Trust due  to the          "improper,  unsafe  and  otherwise  negligent  manner"  in  which          Dryden,  inter alios,  "stored oil, industrial  lubricants and/or                   _____ _____          hazardous materials."  Five  additional counts, directed  against          Dryden alone,  demanded damages for past and future losses caused          Worcester Trust due to  Dryden's breaches of its  lease,2 various                                        ____________________               2The lease obligated  Dryden to:  (1) pay  for all supplies,          materials  and labor associated with cleaning and maintaining the          Property; (2) reimburse  the lessor for repairs  and replacements                                          4          forms  of "waste"  committed  on  the  Property,3  conversion  of          personal  property, and engaging in unfair  and deceptive acts or          practices in its  leasehold relationship with Worcester  Trust in          violation of Mass. Gen. L. ch. 93A,    2 and 11.                     In due  course,  after Travelers  and  American  Mutual          declined to defend  or indemnify,  Dryden brought  a state  court          action  for declaratory  relief,  breach  of  contract,  and  for          alleged violations  of Mass. Gen.  L. ch. 93A  & ch. 176D.   Once          Travelers  and  American  Mutual removed  the  action  to federal          district court pursuant to 28 U.S.C.    1332, 1441, Dryden sought                                        ____________________          necessitated by Dryden's negligent or willful acts; (3) surrender          the Property in rentable condition; and (4) pay all attorney fees          and expenses  incurred by the lessor in the  event of a breach or          default by  Dryden under  the lease.   The lease  allowed Dryden,          with the lessor's approval,  to alter the Property in  conformity          with  all applicable  federal, state  and  local laws,  statutes,          ordinances and regulations.                 3For example, Count VI alleged as follows:                           a.   Lessee failed  to maintain  and re-                    pair the property in satisfactory manner;                         b.   Lessee physically damaged the Prop-                    erty;                         c.   Lessee failed to remove trash which                    it left strewn throughout the Property;                         d.   Lessee made alterations, additions,                    improvements or changes to the Property with-                    out the consent  of the lessor and  in viola-                    tion of applicable  laws, statutes, ordinanc-                    es, rules,  orders, regulations  and require-                    ments of federal, state and local government;                         e.   Lessee  willfully  and  indiscrimi-                    nately removed property and fixtures from the                    premises causing damage to the realty;                         f.   Lessee abandoned personal property,                    trade  fixtures  and  equipment,  making  the                    premises unrentable; and                          g.   . . . lessee caused the  release of                    oil and/or hazardous material.                                           5          summary judgment on its claim  for declaratory relief relating to          the alleged  duty to defend.   The  defendant insurers  responded          with cross-motions for summary judgment on all three counts.  The          district  court ultimately  adopted the  report  of a  magistrate          judge and  entered summary  judgment for  Travelers and  American          Mutual on all counts.  Dryden appealed.                                           II                                          II                                     DISCUSSION4                                     DISCUSSION                                     __________                    Under Massachusetts law, a  liability insurance carrier          must defend an action against its insured if the allegations "are                                                           ___________          `reasonably  susceptible' of an interpretation that they state or          adumbrate a  claim covered by the policy terms . . . ."  GRE Ins.                                                                   ________          Group v. Metropolitan Boston Hous. Partnership, Inc., 61 F.3d 79,          _____    ___________________________________________          81 (1st  Cir. 1995) (quoting Liberty Mut.  Ins. Co. v. SCA Servs.                                       ______________________    __________          Inc., 588 N.E.2d  1346, 1347 (Mass. 1992)).   The "complaint need          ____          only  show, through general  allegations, a possibility  that the          liability  claim falls  within  the  insurance  coverage."    SCA                                                                        ___          Servs., Inc.  v. Transportation  Ins.  Co., 646  N.E.2d 394,  397          ____________     _________________________          (Mass. 1995).  The duty  to indemnify is defined less generously,          see Travelers  Ins. Co. v.  Waltham Indus. Labs. Corp.,  883 F.2d          ___ ___________________     __________________________          1092, 1099 (1st Cir. 1989) (citing Sterilite Corp. v. Continental                                             _______________    ___________          Cas. Co.,  458 N.E.2d 338,  341 n.4 (Mass.  App. Ct.  1983), rev.          ________                                                     ____                                        ____________________               4We review summary  judgments de novo, to  determine whether                                             __ ____          there is a trialworthy dispute as  to any material fact under the          applicable law.   Commercial Union  Ins. v. Walbrook Ins.  Co., 7                            ______________________    __________________          F.3d 1047, 1048  n.1, 1050 (1st Cir.  1993).  As all  claims pose          pure  questions of Massachusetts  law relating to  insurance con-          tract interpretation, our  review is plenary throughout.   Id. at                                                                     __          1048 n.1.                                          6          denied,  459 N.E.2d  826  (Mass.  1984)), as  it  depends on  the          ______          evidence, rather  than an expansive  view of  the complaint,  id.          ________                                                      __          (citing  Newell-Blais  Post #443  v.  Shelby Mut.  Ins.  Co., 487                   _______________________      ______________________          N.E.2d 1371, 1374 (Mass. 1986)).                      We interpret the  relevant policy language with  a view          to whether "`an objectively reasonable insured . . . would expect          to be covered.'"  GRE Ins. Group, 61 F.3d at 81 (quoting Trustees                            ______________                         ________          of  Tufts Univ. v.  Commercial Union Ins. Co.,  616 N.E.2d 68, 72          _______________     _________________________          (Mass. 1993)).  Unambiguous terms are given their plain  meaning,          High Voltage Eng'g  Corp. v. Federal Ins. Co., 981  F.2d 596, 600          _________________________    ________________          (1st Cir.  1992) (citing Stankus  v. New York  Life Ins.  Co., 44                                   _______     ________________________          N.E.2d 687, 689  (Mass. 1942)), and ambiguous terms are construed          against the insurer.  Id. (citing August A. Busch & Co.  of Mass.                                ___         _______________________________          v.  Liberty Mut.  Ins. Co.,  158 N.E.2d  351, 353  (Mass. 1959)).              ______________________          Once an insured  establishes that a claim comes  within the terms          of coverage, the  insurer must demonstrate "the  applicability of          any  exclusion."   GRE Ins.  Group,  61 F.3d  at 81  (citing Camp                             _______________                           ____          Dresser &  McKee, Inc.  v. Home  Ins. Co.,  568 N.E.2d, 631,  633          ______________________     ______________          (Mass. App. Ct. 1991)).          A.   Property Damage Liability Coverage          A.   Property Damage Liability Coverage               __________________________________                    The  Travelers  primary  liability  policies  included,          inter alia, a comprehensive general liability ("CGL")  Form and a          _____ ____          Broad Form CGL Endorsement.   The CGL Form obligated Travelers to          pay  "all  sums [for]  which the  [i]nsured shall  become legally          obligated  . . . because of  . . . property  damage to which [the          policy] applies, caused by  an occurrence . . . ."   The CGL Form                                          7          likewise imposed "[a]  duty to defend any suit  against the [i]n-          sured seeking damages on  account of . . . property damage  . . .          ."5                     Among the relevant  property damage  exclusions in  the                                                         __________          CGL Form are (i) a "Contractual Liability Exclusion" for "liabil-          ity  assumed  by the  [i]nsured under  any contract  or agreement          except an incidental  contract" (emphasis added),  which includes          ______ __ __________  ________                     _____ ________          any written lease of premises, and (ii) exclusion (f) relating to          ___ _______ _____ __ ________          the  "emission,  discharge,  seepage, release  or  escape  of any          liquid, solid, gaseous or thermal waste or pollutant . . . ."  In          the  primary liability policies, exclusion (f)  is replaced by an          "Absolute  Pollution Exclusion" for  "property damage arising out          of  the  actual,  alleged  or  threatened  discharge,  dispersal,          release or  escape of pollutants  . . .  at or from  premises the          named [i]nsured  owns, rents  or occupies  . .  . ."   Under  the          Absolute Pollution Exclusion, "[p]ollutants means any solid, liq-          uid, gaseous or thermal irritant or contaminant, including smoke,                                        ____________________               5"Property damage" is                    (1) physical  injury  to  or  destruction  of                    tangible  property  which occurs  during  the                    policy  period,  including  the  loss of  use                    thereof at any time resulting therefrom, or                     (2)  loss of use  of tangible  property which                    has not been physically injured or  destroyed                    provided such  loss of  use is  caused by  an                    occurrence during the policy period.                 "Occurrence"  is  "an   accident,  including  continuous  or          repeated exposure to conditions, which  results in . . . property          damage neither expected  nor intended from the  standpoint of the          insured."                                           8          vapor, soot, fumes,  acids, alkalis, chemicals and  waste.  Waste          includes materials to be recycled, reconditioned or reclaimed."                      The CGL Form  also contains an exclusion (k), the Owned          or Leased Premises Exclusion, which bars coverage for damage to:                                                                        __                    "(1) property owned or occupied by or  rented                    to the  [i]nsured, (2)  property used  by the                    [i]nsured, or (3) property in the care,  cus-                    tody or  control of  the [i]nsured  or as  to                    which  the [i]nsured is for any purpose exer-                    cising physical control . . . ."                      The Broad Form CGL Endorsement in the primary liability          policies  affords  further  Contractual  Liability  Coverage   by          extending the definition of "incidental contract" to include "any          oral or written contract or  agreement relating to the conduct of          the  named  insured's  business."    This  contractual  liability          coverage is exempted  from various property damage  exclusions in          the  CGL Form, but the list of exemptions does not mention exclu-          sion  (f), its replacement  the Absolute Pollution  Exclusion, or          exclusion (k) (Owned or Leased  Premises Exclusion).  In sum, the          Contractual  Liability Coverage provided under the Broad Form CGL          Endorsement is subject  to both the Absolute  Pollution Exclusion          and Owned or Leased Premises Exclusion (k).               1.   The Absolute Pollution Exclusion                 1.   The Absolute Pollution Exclusion                      ________________________________                    We think the  district court correctly determined  that          the  claims alleged in  the Worcester Trust  complaint ("property          damage caused  by `spills or  releases of oil,  industrial lubri-          cants and/or  hazardous  material'")  came  squarely  within  the          Absolute Pollution Exclusion.   Dryden Oil Co. of  New England v.                                          ______________________________          The Travelers Indem. Co., No. 92-40135,  slip op. at 10 (D. Mass.          ________________________                                          9          Nov. 18, 1994) (Report and Recommendation) (citing Essex Ins. Co.                                                             ______________          v. Tri-Town Corp., 863 F. Supp.  38 (D. Mass. 1994) (under Massa-             ______________          chusetts law,  Absolute Pollution Exclusion excepts  coverage for          physical injury from carbon monoxide releases)).   A fair reading          of  the Absolute  Pollution Exclusion  clause  bars coverage  for          "'any  form of  pollution.'"   United  States Liab.  Ins. Co.  v.                                         ______________________________          Bourbeau, 49 F.3d  786, 788 (1st Cir. 1995)  (under Massachusetts          ________          law, lead paint chips deposited  on land in the course of  strip-          ping and painting building constitute a "pollutant").                     Dryden nonetheless contends that it cannot now be known          whether the damage  allegedly sustained by the  Property resulted          from  a  "pollutant."   It  relies on  inapposite  authority, see          Westchester  Fire Ins.  Co. v.  City of  Pittsburg, Kan.,  791 F.          ___________________________     ________________________          Supp. 836 (D. Kan. 1992), for its claim that diesel fuel is not a          "pollutant."   There, a  sprayed mixture of  diesel fuel  and the          insecticide malathion was held not to be a "pollutant" within the          meaning of  an exclusion clause  which defined "pollutants"  in a          manner similar  to the present  exclusion clause.  As  is readily          apparent  from  an earlier  and  related  case cited  by  Dryden,          however,  see Westchester  Fire  Ins. Co.  v. City  of Pittsburg,                        ___________________________     ___________________          Kan., 768 F. Supp. 1463 (D.  Kan. 1991), aff'd sub nom., Pennsyl-          ____                                     ______________  ________          vania Nat'l  Mut. Cas. Ins.  Co. v. City of  Pittsburg, Kan., 987          ________________________________    ________________________          F.2d 1516  (10th Cir. 1993), and from an earlier and related case          not cited  by Dryden, see  Westchester Fire  Ins. Co. v.  City of                                     __________________________     _______          Pittsburg, Kan., 794 F. Supp. 353 (D. Kan. 1992), aff'd sub nom.,          _______________                                   ______________          Pennsylvania Nat'l Mut. Cas. Ins. Co. v. City of Pittsburg, Kan.,          _____________________________________    _______________________                                          10          987  F.2d  1516  (10th  Cir. 1993),  the  issue  in  the City  of                                                                   ________          Pittsburg, Kan. trilogy  was whether malathion mixed  with diesel          _______________          fuel      not diesel  fuel  alone     is  a pollutant.    City of                                                                    _______          Pittsburg, Kan., 987  F.2d at 1517.  Moreover,  the Tenth Circuit          _______________          affirmed the district court on  the basis that the "spraying" had          been  "sudden  and accidental"     thereby  removing it  from the          explicit language  of the  exclusion clause     not on  the basis          that the City was spraying a pollutant.  Id. at 1519-20.                                                    __                    Finally, the Massachusetts  Supreme Judicial Court,  to          which we look  in this matter, see Commercial Union  Ins., 7 F.3d                                         ___ ______________________          at 1048, n.1, recently assumed that a home heating oil spill "was          comprehended by  an exclusion for  `loss .  . . caused  by . .  .          release, discharge or  dispersal of contaminants.'"   Hanover New                                                                ___________          England Ins. Co.  v. Smith, 621  N.E.2d 382, 383 n.2  (Mass. App.          ________________     _____          Ct.  1993)  (quoting Jussim  v. Massachusetts  Bay Ins.  Co., 610                               ______     ____________________________          N.E.2d 954, 955 (Mass. 1993)).  Whether  or not oil or industrial          chemicals  necessarily constitute  pollutants  in  all forms  and          circumstances, however, given  the policy definition of  "pollut-          ants" and our reasoning in Bourbeau, supra, we think the absolute                                     ________  _____          pollution exclusion  language in  these policies  would not  have          permitted  an  objectively  reasonable   policyholder  to  expect          liability coverage  for contamination  resulting from "spills  or          releases of oil, industrial  lubricants and/or hazardous material          during the  transfer, storing, mixing and  manufacturing process"          as alleged in  the Worcester Trust complaint against  Dryden.  At          the very  least,  an objectively  reasonable  policyholder  would                                          11          regard  spills or  releases  of  oil,  industrial  lubricants  or          hazardous material  as "materials to  be disposed  of or  waste."          Bourbeau,  49 F.3d  at 788  (internal  quotation marks  omitted).          ________          Thus, we  think an  objective policyholder  reasonably could  not          have believed  that "`smoke, vapor,  soot, [and] fumes'  would be          considered pollutants,"  id. at 788-89  (alteration in original),                                   ___          whereas oil, lubricants and hazardous waste "[were] not."  Id. at                                                                     ___          789.6                2.   Owned or Leased Premises Exclusion (k)               2.   Owned or Leased Premises Exclusion (k)                    ______________________________________                    Dryden challenges  the district  court ruling  that the          plain meaning  of Owned or  Leased Premises Exclusion  (k) barred          liability  coverage  for the  Worcester  Trust breach-of-contract          claims  for damages to  the Property  while Dryden  leased and/or          controlled  the Property.   Dryden argues that  the nonpollution-          related claims  alleged in  counts VI, VII  and VIII  are neither          comprehended within the Absolute Pollution Exclusion nor Owned or          Leased  Premises  Exclusion  (k),  because  "[a]t  the  time  the          [Worcester  Trust]  claims  were  filed with  [the  Massachusetts          Superior Court] Dryden [no longer] own[ed],  occupi[ed], rent[ed]                                        ____________________               6Our view comports with the position taken in Titan Holdings                                                             ______________          Syndicate, Inc. v.  City of Keene, N.H.,  898 F.2d 265 (1st  Cir.          _______________     ___________________          1990), where we determined under New Hampshire law that excessive          noise  and light  from a  city  sewage treatment  plant were  not          "pollutants" within the  meaning of an absolute  pollution exclu-          sion barring  coverage for  "irritants" and  "contaminants."   We          noted that though excessive noise and  light "may be `irritants,'          . . . they are  not solid, liquid, gaseous or thermal  irritants.                              _____  ______  _______ __ _______          Nor are  they generally  thought of as  similar to  smoke, vapor,          soot, fumes, acids,  alkalis, chemicals, or waste,  the illustra-          tive terms  used in the  policy definition.  Noscitur  a sociis."                                                       ________  _ ______          Id. at 268 (footnote omitted).            ___                                          12          or control[led] the property."                      Assuming  these  claims  are not  within  the  Absolute          Pollution Exclusion, we are  nonetheless persuaded that liability          coverage  was barred by  Owned or Leased  Premises Exclusion (k).          Although  exclusions must be  strictly construed,  Waltham Indus.                                                             ______________          Labs. Corp., 883  F.2d at 1097 (citing Quincy  Mut. Fire Ins. Co.          ___________                            __________________________          v.  Abernathy, 469 N.E.2d  797, 799 (Mass.  1984)), these primary              _________          liability  policies explicitly  restricted  coverage to  property          damage  occurrences "during the policy period."  Consequently, no          reasonably objective policyholder could  have believed that Owned          or  Leased  Premises  Exclusion (k),  which  barred  coverage for          "damage to  . . . property  rented to the  Insured," somehow con-                                      ______         _______          verted the policies into "claims-made" policies to which Owned or          Leased Premises Exclusion (k) no longer applied because the lease                          _________          had lapsed.                      A primary function  served by Owned or  Leased Premises          Exclusion (k) "is  to prevent the insured from  using a liability          insurance policy as if it provided property insurance."   Kenneth          S. Abraham, Environmental Liability Insurance Law 163 (1991).  It                      _____________________________________          likewise insulates against  "the `moral hazard' problem  where an          insured has  less  incentive  to take  precaution  owing  to  the          existence of insurance."   Barry R. Ostrager &  Thomas R. Newman,          Handbook on Insurance Coverage  Disputes   10.03[b], at 441  (8th          ________________________________________          ed. 1995) (quoting United  States v. Conservation Chem.  Co., 653                             ______________    _______________________          F. Supp.  152,  199 (W.D.  Mo.  1986) (internal  quotation  marks          omitted)).  These recognized aims  would be subverted by Dryden's                                          13          overly  inventive reading of  Owned or Leased  Premises Exclusion          (k).               3.   Contractual Liability Coverage               3.   Contractual Liability Coverage                    ______________________________                    Next, Dryden advances  two grounds  for its  contention          that the nonpollution-related contract claims alleged  by Worces-          ter Trust  are comprehended  by the  "property damage"  liability          coverage.   First, coverage  is provided for  an "incidental con-          tract," which  is extended by  the Broad Form CGL  Endorsement to          include not only "any  written . . . lease of  premises" but also          "any  oral  or written  contract  or  agreement relating  to  the          conduct of  the insured's business."   Second,  Dryden says,  the          Worcester Trust nonpollution-related  contract claims arise  from          matters having to do with the written lease of the Property.  Its          argument is untenable.                    The policies exempt an  "incidental contract," viz.,  a          lease,  from the Contractual Liability Exclusion contained in the          CGL Form, but not from Owned or Leased Premises Exclusion (k)  in                        ___          the CGL Form.   Under the Broad Form CGL Endorsement, the defini-          tion of  "incidental contract"  is broadened  by the  Contractual          Liability  Coverage provision, but the Broad Form CGL Endorsement          leaves Owned or Leased Premises  Exclusion (k) in full force with          reference  to Contractual  Liability Coverage.    Thus, by  clear          implication  Owned  or  Leased Premises  Exclusion  (k)  bars the          extended  Contractual Liability Coverage in relation to an "inci-          dental contract."                      We  therefore conclude, as did the district court, that                                          14          the property damage  coverage described in these  liability poli-          cies imposed no duty upon the defendant insurers to defend Dryden          in the  Worcester Trust action.   Furthermore, since the  duty to          indemnify is narrower  than the duty to defend  under the primary          liability policies, Waltham Indus. Labs. Corp., 883 F.2d at 1099,                              __________________________          the district court  correctly ruled  as well  that the  defendant          insurers were under no duty  to indemnify Dryden for any property          damage recoveries by Worcester Trust.7           B.   Personal Injury Liability Coverage          B.   Personal Injury Liability Coverage               __________________________________                    Under  the Broad Form  CGL Endorsement, the  insurer is          obligated to defend its insured, and to indemnify for any amounts          its insured becomes  legally obligated to pay, in  any action for          "damages because of  personal injury . . . to  which [the policy]                               ________ ______          applies, sustained  by any person or organization and arising out          of the conduct of [n]amed [i]nsured's business . . . ." (Emphasis          added.)  The term "personal injury" is defined as                     (1) false arrest, detention, imprisonment, or                    malicious prosecution;                     (2) wrongful entry or eviction or other inva-                    sion of the right of private occupancy;                     (3) a publication or utterance                          (a) of a libel  or slander or other                         defamatory or  despairing material,                         or                          (b) in violation of an individual's                                        ____________________               7We  caution, however, that  the ultimate resolution  of the          Worcester  Trust action  may affect  the duty to  indemnify under          these liability policies.  That is to say, should the evidence in          the  underlying Worcester Trust action against Dryden reveal that          there was  a covered occurrence,  and should  Worcester Trust  be          allowed to  amend  its complaint,  Dryden  would be  entitled  to          indemnification for the  damages recovered against it and for the          costs of its defense.  See  Terrio v. McDonough, 450 N.E.2d  190,                                 ___  ______    _________          194 (Mass. App. Ct.), rev. denied, 453 N.E.2d 1231 (Mass. 1983).                                ___________                                          15                         right of privacy;                     except  publications  or  utterances  in  the                    course of  or related to  advertising, broad-                    casting, publishing or telecasting activities                    conducted  by or  on  behalf  of the  [n]amed                    [i]nsured shall not be deemed personal  inju-                    ry.           This personal injury coverage  does not apply, however, "to  lia-          bility assumed by the [i]nsured under any contract or agreement."                    The  district court ruled  that Dryden had  not alleged          claims within the personal injury coverage for "wrongful entry or          eviction or other  invasion of the  right of private  occupancy,"          since "the wrongful eviction/personal  invasion provisions of the          applicable insurance  could not have  been intended to  cover the          kind of indirect  and incremental harm  that results to  property          interests from  pollution."  Dryden  Oil Co. of New  England, No.                                       _______________________________          92-40135, slip op. at 12  (citing County of Columbia v. Continen-                                            __________________    _________          tal Ins.  Co., 634  N.E.2d 946, 950  (N.Y. 1994)).   The district          _____________          court further noted  the apparent incongruity which  would obtain          if  pollution liability coverage  were found under  the "personal          injury"  clause despite the fact that "property damage" liability          coverage is expressly barred by the Absolute Pollution Exclusion.          Id.           ___                    Although  the Supreme Judicial Court has yet to address          the  matter, the Massachusetts  Appeals Court has  held that "the          definition  of personal  injury  on  the  [Endorsement]  is  very                                                                       ____          limited."   LaFrance v. Travelers  Ins. Co., 594 N.E.2d  550, 551          _______     ________    ___________________          (Mass. App. Ct.), rev. denied,  598 N.E.2d 1133 (Mass. 1992) (the                            ____ ______          identically-defined term "personal injury" does not  even include                                          16          "bodily injury") (emphasis  added).  Moreover, as  we have noted,          personal  injury  liability  coverage obligates  the  insurer  to          indemnify  for liability incurred for certain intentional acts by                                                        ___________          the insured, including:                    Group A    false arrest, detention or impris-                    onment, or malicious prosecution;                    Group B      the  publication or utterance of                    a  libel or slander or of other defamatory or                    disparaging  material,  or a  publication  or                    utterance  in  violation of  an  individual's                    right of privacy . . . ;                    Group C       wrongful entry  or eviction  or                    other invasion of the  right of private occu-                    pancy[.]          Continental Cas. Co.  v. Canadian  Universal Ins.  Co., 924  F.2d          ____________________     _____________________________          370, 373 (1st Cir. 1991) (alteration in original).                    In Titan  Holdings Syndicate,  Inc. v.  City of  Keene,                       ________________________________     _______________          N.H., 898 F.2d  265, 267 (1st Cir. 1990)  ("Titan"), the insurers          ____                                        _____              Titan Holdings  Syndicate, Inc.  ("Titan")  and Great  Global          Assurance Company  ("Great Global")      contended  there was  no          duty to defend against claims "characterized as pleas of trespass          and nuisance"  brought by  homeowners  who alleged  "continuous[]          bombard[ment] by and expos[ure] to" noxious fumes, loud noise and          bright light emanating  from the insured's sewer  treatment plant          abutting their  land.8   The  insured  argued that  its  "plant's                                        ____________________               8The Seventh Circuit has decided, under Illinois and Missou-          ri law,  that "personal injury"  coverage is not restricted  by a          clause which  "applies only to  the policy's property  damage and          bodily injury  provisions."   Pipefitters Welfare  Educ. Fund  v.                                        _______________________________          Westchester Fire Ins.  Co., 976 F.2d 1037, 1042  (7th Cir. 1992).          __________________________          "[The insurer's] attempts to circumvent the plain language of the          pollution exclusion in its policy are disingenuous and misleading             indeed, they  are nearly sanctionable      and as such  do not          warrant any discussion."   Id.  It  came to a  similar conclusion                                     ___          under Wisconsin law.   Scottish Guar. Ins. Co. v.  Dwyer, 19 F.3d                                 _______________________     _____                                          17          fumes,  noise and  light"  constituted a  wrongful  entry of,  or          eviction from,  the abutting  homeowners' property,  id. at  272,                                                               ___          hence  came  within  the   insurers'  personal  injury  liability          coverages for "wrongful  entry" or "wrongful eviction."   Finding          no case law defining "wrongful entry," the Titan panel analogized                                                     _____          to an action for trespass  under New Hampshire law which requires          an  intentional invasion.  Id. (citing Moulton v. Groveton Papers                                     ___         _______    _______________          Co., 289 A.2d 68, 72 (N.H.  1972)).  As the complaint alleged  no          ___          intentional invasion of the  abutting landowners' property, Titan                                                                      _____          found no actionable wrongful entry claim under New Hampshire law.          Id.  The  Titan panel also questioned    though it did not decide          ___       _____             "whether the alleged spreading of fumes, noise and light falls          within the ordinary meaning of  wrongful entry of property."  Id.                                                                        ___          at 272 n.7.  Thus, as the Fifth Circuit has noted, Titan "did not                                                             _____          hold that the  migration of fumes, noise and  light constituted a          wrongful entry  . . . ."  Gregory  v. Tennessee Gas Pipeline Co.,                                    _______     __________________________          948 F.2d 203, 209 (5th Cir. 1991).  Finally, after observing that          a wrongful eviction  presupposes a landlord-tenant  relationship,          Titan, 898 F.2d at 272 (citing 52 C.J.S. Landlord & Tenant    455          _____                                    _________________                                        ____________________          307, 309 (7th Cir. 1994) ("[C]overage for personal . . . injuries          . . . is not subject to the pollution exclusion.").  The Eleventh          Circuit also  has concluded that  "[b]y its terms,  the pollution          exclusion  clause does not  apply to coverage  under the personal          injury  endorsement  . .  . ."    City of  Delray Beach,  Fla. v.                                            ____________________________          Agricultural  Ins.  Co.,  85 F.3d  1527,  1533  (11th  Cir. 1996)          _______________________          (Florida law).  The Sixth Circuit, on the other hand, has come to          the opposite conclusion under Michigan law.   Harrow Prods., Inc.                                                        ___________________          v. Liberty Mut. Ins. Co., 64 F.3d 1015,  1021-25 (6th Cir. 1995).             _____________________          We need  not consider  whether the  absolute pollution  exclusion          applies to the personal injury liability coverage under Massachu-          setts law, since we conclude  that the complaint alleges no claim          within the "personal injury" coverage under these policies.                                          18          & 460(1)),  the Titan  panel concluded  that the  personal injury                          _____          liability  coverage  under  the Titan  policy  was  restricted to          "wrongful  entry into,  or eviction  of  a person  from, a  room,          dwelling or premises that the person occupies."  Id. at 271-72.                                                           ___                    Dryden  urges the same  analogy, especially since tres-          pass is not  necessarily an intentional tort  under Massachusetts          law.  See Sheppard Envelope Co. v. Arcade Malleable Iron Co., 138                ___ _____________________    _________________________          N.E.2d 777 (Mass. 1956) (airborne  emissions of cinders and other          gritty materials, negligent or otherwise, constitute a continuing          trespass).  Its  analogy simply does not  fit.  Not only  have we          decided that the  wrongful conduct comprehended by  the "personal          injury" coverage  afforded under  policies like  the present  one          amounts  to  an  intentional tort  under  Massachusetts  law, see                                                                        ___          Continental Cas. Co. v. Canadian  Universal Ins. Co., 924 F.2d at          ____________________    ____________________________          373, but the Massachusetts tort of  wrongful entry has yet to  be          extended beyond trespasses by landlords upon the leased premises.          See Gidwani v. Wasserman, 365 N.E.2d 827 (Mass. 1977); Tinkham v.          ___ _______    _________                               _______          Wind, 65 N.E.2d 14 (Mass. 1946).9            ____                                        ____________________               9Dryden relies on Scottish Guar.  Ins. Co. v. Dwyer, 19 F.3d                                 ________________________    _____          307,  311 (7th Cir. 1994),  which cites Titan  as support for the                                                  _____          holding  that  "wrongful  entry" equates  with  "trespass"  under          Wisconsin  law, which, like  Massachusetts law, does  not require          that an actionable  trespass have been intentional.   Even though          the  Dwyer panel  did  not  take issue  with  the insurer's  "as-               _____          sert[ion] that the term `wrongful entry' has been used by Wiscon-          sin courts in only one context     the improper entry by a  land-          lord onto the  leased property  of a tenant,"   id., it  reasoned                                                          ___          that  "nothing  [in the  Wisconsin  cases cited  by  the insurer]          suggests that the  tort [of wrongful entry] should  be limited to          landlord-tenant disputes."  Id.  The Dwyer panel went on  to say:                                      ___      _____          "When faced with  a similar lack  of controlling authority  under          New Hampshire law, [the First Circuit] concluded that the tort of          wrongful entry `most closely resembles  that of trespass.'"   Id.                                                                        ___                                          19                    Although there  existed a  landlord-tenant relationship          between Worcester Trust and Dryden, the Worcester Trust complaint          alleges  claims by Worcester Trust, the landlord, against Dryden,          the tenant.  Dryden offers  no authority for its unstated premise          that a tenant  in possession under a valid lease may be liable to          its landlord for  unlawful entry upon  the leased premises  under          Massachusetts law.  Since wrongful eviction likewise contemplates          wrongful conduct by a landlord  against its tenant, see Squeri v.                                                              ___ ______          McCarrick,  588 N.E.2d  22 (Mass. App.  Ct. 1992),  the Worcester          _________          Trust  claims  against Dryden  plainly  do  not come  within  the          personal injury coverage  for "wrongful entry or  eviction" under          Massachusetts law.                                          ____________________          (quoting  Titan, 898 F.2d  at 272).  In  doing so, Dwyer extended                    _____                                    _____          Titan beyond its rationale.          _____               Titan equated the tort of wrongful entry with trespass under               _____          New Hampshire law  only because the panel was "unable to find any                                                                        ___          New Hampshire cases  defining a tort of wrongful  entry."  Titan,                                                                     _____          898 F.2d at 272 (emphasis added).  Whereas Massachusetts case law          has defined the tort of wrongful entry  only in the context of an          intrusion by the landlord upon the premises leased by its tenant.          Against  this  inapposite   decisional  backdrop,  therefore,  we          decline to broaden the scope  of the Massachusetts tort of wrong-          ful  entry absent  a clear  signal from the  Commonwealth courts,          especially  in the instant  context where the  insurance contract          definition  for "personal  injury" liability  is "very  limited."          LaFrance, 594 N.E.2d at 551.            ________                    Absent  some  authoritative signal  from  the                    legislature or  the courts  of Massachusetts,                    we see no basis for even considering the pros                    and cons of  innovative theories . . .  .  We                    must apply the law  of the forum as we  infer                    it presently to  be, not as it  might come to                    be.    Although  Massachusetts  authority  is                    sparse, we see no basis for applying any rule                    other than the traditional one.          Dayton v. Peck, Stow and Wilcox Co. (Pexto), 739 F.2d 690, 694-95          ______    _________________________________          (1st Cir. 1984).                                           20                    Dryden  nonetheless argues  that these  Worcester Trust          claims are  embraced by the  personal injury  coverage as  "other          invasion[s] of the  right of private occupancy."  Titan addressed                                                            _____          the scope of liability coverage afforded by this clause under New          Hampshire  law.10   There, in  addition to  the policy  issued by          Titan, the  City had a  liability policy issued by  Great Global,          which afforded "personal injury" coverage for "`wrongful entry or          eviction or other  invasion of the right  of private occupancy.'"                   __ _____  ___________ ___ _____  __ _______ _________          Titan, 898 F.2d at 272 (emphasis in original).          _____                    The Titan panel first observed that "an invasion of the                        _____          right  of private occupancy need not  involve `an appreciable and          tangible interference with  the physical property itself.'"   Id.                                                                        ___          (quoting Town  of Goshen v. Grange  Mut. Ins. Co., 424  A.2d 822,                   _______________    _____________________          824  (N.H. 1980)).11   Given  this "broad[]" construction  of the                                        ____________________               10Prior  to  the  Titan decision,  the  Seventh  Circuit had                                 _____          determined,  under  the  ejusdem generis  rubric,  that  the term                                   _______ _______          "other  invasion" referred  exclusively  to invasions  upon  real          property, not to a  conversion of a  vehicle.  Red Ball  Leasing,                                                         __________________          Inc. v.  Hartford Accident & Indem.  Co., 915 F.2d  306 (7th Cir.          ____     _______________________________          1990)  (applying  Indiana law).    See also  Hartford  Accident &                                             ___ ____  ____________________          Indem. Co. v.  Krekeler, 491 F.2d 884 (8th  Cir. 1974) ("personal          __________     ________          injury"  coverage for  "wrongful  entry  or  eviction,  or  other          invasion of the  right of  private occupancy,"  embraces tort  of          trespass under Missouri law).                11The  Titan panel  noted that  in  Town of  Goshen the  New                      _____                        _______________          Hampshire Supreme Court held that a sufficient claim for invasion          of the right of private occupancy had been stated  by the allega-          tion that "the  Town and its officials had  wrongfully refused to          grant  a  property  owner permission  to  develop  a subdivision,          causing him economic  hardships and monetary losses,  and denying          him the right of free enjoyment of his property . . . ."   Titan,                                                                     _____          898 F.2d  at 272.   The New  Hampshire Supreme  Court accordingly          ruled in Town  of Goshen that  the insurance coverage for    1983                   _______________          claims,  as distinguished  from common-law  claims,  was unclear,          then went on to construe the policy against the insurer.  Town of                                                                    _______          Goshen, 424 A.2d at 824-25.          ______                                          21          clause  "other invasion  of  the  right  of  private  occupancy,"          Gardner v. Romano, 688 F. Supp. 489, 492 (E.D. Wis. 1988) (citing          _______    ______          Town of Goshen),  the Titan panel  concluded, applying New  Hamp-          ______________        _____          shire law,  that  "the [homeowners'  suit] alleges  just such  an          invasion, and  so is covered  by Great Global's policy."   Titan,                                                                     _____          898 F.2d  at 273.  The  panel went on to observe  that the matter          might [have  been] left  there," id.,  but out  of a concern  for                                           __          fairness it  permitted "Great Global,  on remand, to  produce the          type of evidence relied on in Town of Epping, if it exists," id.,                                        ______________                 ___          to demonstrate that the parties to the insurance contract had not          intended that the clause cover such an invasion.12                     As  the Massachusetts courts  have yet to  construe the          clause  "other invasion of  the right of  private occupancy," the          only reliable  interpretive guides available to us are the state-          ment  by  the Massachusetts  Appeals Court:   "the  definition of          personal injury is very limited[,]"  LaFrance, 594 N.E.2d at 551;                                               ________          see also Losacco v. F.D. Rich Constr. Co., 992 F.2d 382, 384 (1st          ___ ____ _______    _____________________          Cir.)  (intermediate  state appellate  court  opinion  may afford          reliable guidance in "ascertaining state law"), cert. denied, 114                                                          ____  ______                                        ____________________               12Titan  noted that  in Town  of Epping  v. St. Paul  Fire &                 _____                 _______________     ________________          Marine Ins. Co.,  444 A.2d 496, 498 (N.H. 1982),  the "[New Hamp-          _______________          shire] Supreme  Court agreed that  the clause `other  invasion of          the right of private occupancy' lacks precise definition," Titan,                                                                     _____          898 F.2d at 272, with respect to the coverage for   1983 liabili-          ty,  as distinguished  from coverage  for  common-law tort  claim          liability.  "Explaining that the rule requiring ambiguous clauses          to be  construed in favor  of the  insured is only  a presumption          which can be defeated by evidence that the parties did not intend          to provide for coverage for [civil rights and official liability]          claims,  [the New  Hampshire Supreme  Court  adverted to]  . .  .          extraneous  evidence   of    the  parties'  intentions  regarding          coverage."  Id. (citing Town of Epping, 444 A.2d at 499).                      __          ______________                                          22          S. Ct.  324 (1993), and  the principle of ejusdem  generis, which                                                    _______  _______          holds  that "`general  terms  which  follow  specific  ones  [are          limited]  to matters  similar to  those specified.'"    Powers v.                                                                  ______          Freetown-Lakeville Regional Sch. Dist. Comm., 467 N.E.2d 203, 207          ____________________________________________          n.8 (Mass. 1984)  (quoting United States v. Powell,  423 U.S. 87,                                     _____________    ______          91 (1975)); see also Berniger v.  Meadow Green-Wildcat Corp., 945                      ___ ____ ________     __________________________          F.2d 4, 8 (1st Cir. 1991).                      Under Massachusetts  law, then, the phrase "other inva-          sion of the  right of private occupancy" would  mean "other inva-          sion  of the  [tenant's] right  of private  occupancy," since  an          actionable "wrongful entry or eviction" claim under Massachusetts          law may be  brought only by a  tenant against its landlord.   See                                                                        ___          Gidwani, 365  N.E.2d at 830;  Tinkham, 65 N.E.2d at  162; Squeri,          _______                       _______                     ______          588 N.E.2d at 24.  Moreover, it is significant that  this narrow-          ing  construction nonetheless leaves  meaning to the  term "other          invasion," see United  States v. Tortora, 922 F.2d  880, 887 (1st                     ___ ______________    _______          Cir. 1990) (doctrine of ejusdem  generis applies if "the specific                                  _______  _______          terms of an enumeration suggest a class which is not exhausted by          the enumeration"), in that it would afford coverage for "personal          injury"  or liability  claims brought  by  tenants against  their          landlords, claims  "that are  similar to  but not encompassed  by          `wrongful entry or eviction.'"  Bernstein v. North East Ins. Co.,                                          _________    ___________________          19  F.3d 1456,  1458 (D.C.  Cir. 1994) (racial  discrimination by          private  landlord against  prospective tenant  is  not an  "other          invasion").   See also Boston  Hous. Auth. v. Atlanta  Int'l Ins.                        ___ ____ ___________________    ___________________          Co., 781 F.  Supp. 80, 84 (D. Mass.  1992) (racial discrimination          ___                                          23          by public housing landlord against tenants not an "other invasion          of the right of private occupancy").         We       accordingly          conclude that  the clause  "wrongful entry  or eviction or  other                                                                      _____          invasion of the right of  private occupancy" does not  comprehend          ________ __ ___ _____ __  _______ _________          these  Worcester Trust  claims,  which  do  not  allege  wrongful          conduct by a landlord against its tenant.  Therefore, as did  the          district court,  we hold  that the  applicable "personal  injury"          liability coverage imposed no duty  to defend or indemnify Dryden          against the Worcester Trust claims.  But cf. note 7 supra.                                                 ___ __         _____          C.   The "All Risks" Property Insurance Policy          C.   The "All Risks" Property Insurance Policy               _________________________________________                    The Travelers  property  insurance  policy  included  a          "Building  and Personal Property  Special Form"  ("Special Form")          that "insures against all risks of direct physical loss or damage          except as otherwise provided in this form and other provisions of          the  policy  which apply."    The Dryden  complaint  alleges that          Travelers  must defend  Dryden  in  the  Worcester  Trust  action                          ______          because the "damages sought therein constitute and concern `risks          of  direct physical  loss  or  damage'  to 150  Worcester  Center          Boulevard."   It further  alleges that  Travelers must  indemnify                                                                  _________          Dryden "for all sums which [Dryden] may become  legally obligated          to pay as damages on account of any and  `all risks of direct and          physical loss or  damage' to the property known  as 150 Worcester          Center Boulevard."  Dryden  contends that the Special Form  obli-          gates  Travelers to  defend and  indemnify  because "the  damages          complained of  by [Worcester  Trust] are clearly  covered by  the          policy" and "a consequent risk of any such damage is a lawsuit by                                    ____                                          24          [Worcester Trust], as Dryden's landlord,  to recover the costs of          such damage[]" from Dryden, its tenant.  We do not agree.                    The Travelers property insurance policy imposes no duty          to defend  Dryden in  suits for "physical  loss or damage."   Al-             ______          though the  policy affords  Travelers the  option  to defend  its                                                     ______          insured,  Dryden  does  not contend  that  the  option to  defend                                                          ______ __  ______          constituted the requisite agreement, see Aetna Cas. & Sur. Co. v.                                               ___ _____________________          Sullivan, 597  N.E.2d 62,  63 (Mass. App.  Ct. 1992),  upon which          ________          might be predicated a duty to defend.  Nor has Dryden demonstrat-                                ____          ed reason, see  Dayton v. Peck, Stow and Wilcox  Co. (Pexto), 739                     ___  ______    __________________________________          F.2d 690,  694  (1st  Cir.  1984) (court  reluctant,  sitting  in          diversity action, to extend state law), or authority for implying          such a  duty under  Massachusetts law.   Cf.   Shell  Oil Co.  v.                                                   __    ______________          Winterthur Swiss Ins.  Co., 15 Cal.  Rptr. 2d 815, 848  (Cal. Ct.          __________________________          App. 1993) (no  implied duty to defend under  "all risks" policy)          (California law).                      We  therefore  conclude,  as did  the  district  court,          though  for different  reasons, that  Travelers  assumed no  duty          under the property  insurance policy to defend  Dryden in connec-          tion with the  Worcester Trust action.  Since  defendants have no          duty to defend  under their liability policies, and Travelers has          no  duty  to  defend  under its  "all  risks"  property insurance          policy, we affirm  the district court rulings  rejecting Dryden's          motion  for partial  summary judgment,  and granting  defendants'          cross-motion  for summary judgment,  on the duty  to defend under          all the defendants' policies.           The     district    court                                          25          concluded that the property  insurance policy required  Travelers          neither to  defend nor  indemnify Dryden,  since Worcester  Trust          alleges  that all  damage to  the Property  was caused  by Dryden          itself.                      [The  property   insurance]  policy   insured                    Dryden Oil "against all risks of direct phys-                    ical loss or damage" to buildings and person-                    al property owned or  occupied by Dryden Oil.                    This policy provides first-party coverage for                    claims by Dryden  Oil that  its own  property                    had  been damaged by  a third party,  not for                                                          ___                    claims  that it had  damaged a third person's                    property. .  . .   The  simple conclusion  is                    that the  policy in question  afforded Dryden                    Oil  protection for  damage  to its  property                    (i.e.,  Dryden Oil  is covered for  losses it                     ____                    suffers  as a result  of damage to  its prop-                    erty) and not for  damage [Dryden] caused  to                    the Property.          Dryden Oil Co. of New England, No. 92-40135, slip op. at 14.          _____________________________                    Dryden contends, however, that the "all risks" property          insurance coverage does not depend  upon who caused the damage to          the Property.  Moreover, neither Travelers nor the district court          identifies policy language  limiting the "all risks"  coverage to          damage caused by third parties.13  Finally, no one has cited, nor          have we  found, an  unambiguous provision  in the  Travelers "all          risks"  property  insurance  policy  excluding  coverage  for any          damage to  the Property  caused by  Dryden, the policyholder  and          tenant.   See High Voltage Eng'g Corp., 981  F.2d at 600.  Conse-                    ___ ________________________          quently, we  are unable  to discern a  supportable basis  for the                                        ____________________               13The   Insurance   Environmental   Litigation   Association          ("IELA")  maintains in its  amicus brief that  the district court          incorrectly  limited the  coverage afforded  under  the Travelers          property insurance  policy to property  damage caused by  a third          party.                                           26          district court holding.14                      We  do not mean to suggest  that Dryden necessarily can          prevail  on its claim for  indemnity under the property insurance          policy.  The difficulties impeding  indemnity coverage determina-          tions involving latent perils, such as accumulations of waste and          hazardous  materials,  may  become  almost  unmanageable  in  the          abstract setting  preceding a  judicial determination  as to  the          nature  and extent of  any damage,  its causes  and timing.   See                                                                        ___          generally, Dale  L. Kingman,  First Party  Property Policies  and          _________                     ___________________________________          Pollution Coverage, 28 Gonz. L. Rev. 449, 471-72 (1993).  Be that          __________________          as  it may, the declaratory ruling  that Travelers had no duty to          indemnify  Dryden under the "all risks" property insurance policy          _________          for  any damage  Dryden may  have  caused to  the Property  lacks          discernible  record support.15  Therefore, we vacate that portion          of the declaratory judgment and remand  for such further proceed-                                        ____________________               14The only authority cited by  Travelers is inapposite.  See                                                                        ___          Edward  J. Gerrits,  Inc.  v.  National Union  Fire  Ins. Co.  of          _________________________      __________________________________          Pittsburgh,  Pa., 634  So.  2d  712, 713  (Fla.  Dist. Ct.  App.)          ________________          (stating  that an  "all risk[s]"  policy "is a  first-party claim          policy which insures [Gerrits] against physical damage or loss to          the property brought about by  some external cause other than the          insured.") (per curiam), rev. denied, 645 So. 2d 452 (Fla. 1994).                                   ___  ______          Unlike  the "all  risks"  property  insurance  policy  issued  by          Travelers, however,  coverage under  the Gerrits  policy was  ex-                                                   _______          pressly  limited to  "damage  to the  property  insured from  any          external cause . . . ."  Id.                                     __               15Travelers represents  in its  appellate brief  that "[t]he          duty to defend [is] the issue primarily briefed by the parties to          date" and  "the duty to indemnify,  if one exists, can  be estab-          lished  only  by  further  [factfinding]  proceedings  .  . .  ."          Defendants-Appellees'  Brief  at  36  n.18.    Regrettably,  more          focused advocacy, in  the district court and on  appeal, may well          have enabled a  definitive resolution of this claim  in the first          instance.                                            27          ings, consistent  with this opinion  and 28 U.S.C.    2201(a), as          the district court in its sound discretion deems appropriate.                                          III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    Under their liability policies, Travelers and  American          Mutual have  no duty to  defend and indemnify Dryden  against the          claims  asserted in  the Worcester  Trust  action.   There is  no          "property damage" coverage under  the liability policies  because          the Worcester Trust  claims are expressly excepted  from coverage          by  the  Absolute Pollution  Exclusion  or  the Owned  or  Leased          Premises Exclusion.   There is  no coverage  under the  liability          policies for "wrongful entry or eviction or other invasion of the          right  of private  occupancy,"  and  thus  no  "personal  injury"          coverage,  for the  Worcester Trust  claims  against its  tenant,          Dryden,  because wrongful  entry, wrongful  eviction,  and "other          invasion[s]  of  the  right of  private  occupancy,"  contemplate          wrongful  conduct by  a landlord  against its  tenant.   Whatever          coverage may  be available under its "all  risks" property insur-          ance policy, Travelers has no  obligation to defend Dryden in the          Worcester  Trust action, only an option  to defend.  Accordingly,          as a  matter of  law, defendants  neither breached a  contractual          duty to defend Dryden under any of their policies, nor a  duty to          indemnify Dryden under their liability policies.16  Consequently,                                        ____________________               16After ruling that defendants were under no duty  to defend          or indemnify  Dryden under  any of their  policies, the  district          court  granted summary judgment  for defendants on  the dependent          breach-of-contract claim  as well.   Dryden  makes no  contention          that its breach-of-contract claim does not depend on the declara-                                          28          Dryden's claims under Mass. Gen.  L. chapter 93A and chapter 176D          fail as well.17                    Finally, we are  unable to discern a  supportable basis          for the district court ruling that there was no duty to indemnify          Dryden  under the Travelers "all risks" property insurance policy          since Dryden itself caused the damage for which it seeks indemni-          fication.  Consequently,  we vacate the declaratory ruling  as to          the duty  to indemnify  under the  property insurance  policy, as          well  as  its denial  of  the breach-of-contract  claim  which is          dependent on  the unsupported  declaratory ruling.   Accordingly,          these  interdependent claims are  remanded for such  further pro-          ceedings,  consistent with this opinion  and 28 U.S.C.   2201(a),          as the district court in its sound  discretion deems appropriate.                    Affirmed,  in part, and reversed and remanded, in part;                    Affirmed,  in part, and reversed and remanded, in part;                    _______________________________________________________          the parties shall bear their own costs.  SO ORDERED.          the parties shall bear their own costs.  SO ORDERED.          ______________________________________   __________                                        ____________________          tory rulings  relating  to the  duty to  defend and  the duty  to          indemnify under defendants' policies.                17Dryden argues  that defendants'  "delays in  responding to          Dryden's  requests for coverage and their changing positions with          respect  to their  reasons  for denying  coverage"  gave rise  to          viable claims  for relief under  Mass. Gen. L. ch.  93A and 176D.          We do not  agree.  Under these statutes,  "a claimant must estab-          lish both  that an  unfair trade practice  occurred and  that the               ____                                           ___          unfair trade practice resulted  in a loss to the claimant."  Alan                                                                       ____          Corp. v. International  Surplus Lines Ins. Co., 22  F.3d 339, 343          _____    _____________________________________          (1st Cir. 1994).   Even assuming the alleged  delays and vacilla-          tions  by defendants amounted to unfair trade practices, a matter          we need not address, Dryden has not established that it sustained          a loss as a result of  the alleged unfair trade practices,  since          defendants were under no duty to defend.                                           29
