Full opinion text
MEMORANDUM OPINION AND ORDER (1) GRANTING FIREMAN’S FUND’S MOTION FOR PARTIAL SUMMARY BASED ON THE POLLUTION EXCLUSION; (2) GRANTING IN PART AND DENYING IN PART TRAVELERS/AETNA’S MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ON THE POLLUTION EXCLUSION; (3) DENYING TRAVELERS/AETNA’S AND DOW’S CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT BASED ON THE LOSS-IN-PROGRESS DOCTRINE; (4) GRANTING IN PART AND DENYING IN PART TRAVELERS’ MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ON THE LACK OF PROPERTY DAMAGE; (5) GRANTING FIREMAN’S FUND’S MOTION AND DENYING DOW’S CROSS MOTION REGARDING CLAIMS AND SUITS WHERE DOW IS NOT A NAMED PARTY; AND (6) DENYING CENTURY’S MOTION FOR SUMMARY JUDGMENT REGARDING INDEMNIFICATION COVERAGE UNDER ITS ACCIDENT-BASED POLICIES EDMUNDS, District Judge. This action arises out of an insurance contract dispute. Defendants Dow Chemical Company and Dow Corning, Inc. (collectively “Dow”) have been the target of third-party and government-related environmental contamination claims asserting that Dow is responsible for damages, including clean-up costs for alleged contamination, at several hundred sites in the United States and Canada. Aetna Casualty & Surety Company is one of Dow’s insurers. Aetna filed this declaratory judgment action against Dow and 48 of Dow’s primary and excess insurers requesting that the Court determine the rights and liabilities of the parties under Dow’s various insurance policies for coverage as to these environmental claims. Dow seeks indemnification coverage under a series of comprehensive general liability (“CGL”) policies issued to it between 1944 and 1985. Although the language varies slightly, with the exception of Dow’s earliest primary policy, the policies at issue provide indemnity coverage for all sums that Dow becomes legally obligated to pay as damages that result from property damage or bodily injury caused by an occurrence. Dow began purchasing primary CGL policies in 1944, and it first purchased excess coverage in 1955. In an effort to resolve this dispute efficiently, the parties and the Court have agreed to focus the litigation in the first instance on ten Final Sites: Brookhurst; Cliffs-Dow; Daffron & Pinion; Harris/Farley Street; Hartley & Hartley; Midland, Texas; Monahans, Texas; Petro Processors, Inc (“PPI”); Silresim; and Conalco. The Court has previously ruled that: (1) Michigan law applies to the insurance contracts in this case, 883 F.Supp. 1101; (2) the absolute pollution exclusion in Dow’s posH985 primary policies bars coverage for all claims at issue, 933 F.Supp. 675; (3) the “personal injury” coverage in Dow’s policies does not afford coverage for trespass and nuisance claims, 933 F.Supp. at 680-81; (4) Dow’s motion for summary judgment concerning the duty to defend would be granted in part and denied in part, 12/4/97 Mem. Op.; (5) the issue of Dow’s right to reimbursement of pretender defense costs would be reserved for trial, 12/4/97 Mem. Op.; and (6) the issue of whether and how defense costs are to be allocated among the primary insurers would also be reserved, 12/4/97 Mem. Op. This matter comes before the Court on the following motions for partial summary judgment: (1) Fireman’s Fund’s and Travelers/Aetna’s motions as to the pollution exclusion; (2) Travelers/Aetna’s and Dow’s cross motions concerning the loss-in-progress doctrine; (3) Travelers/Aetna’s motion regarding the lack of property damage; (4) Fireman’s Fund’s and Dow’s cross motions regarding indemnification coverage where Dow is not a named party; and (5) Century’s motion regarding indemnification coverage under its accident-based policies. For the reasons stated below, this Court: (1) GRANTS Fireman’s Fund’s motion for partial summary judgment based on the pollution exclusion; (2) GRANTS IN PART AND DENIES IN PART Travelers/Aetna’s motion for partial summary judgment based on the pollution exclusion; (3) DENIES Travelers/Aetna’s and Dow’s cross-motions for partial summary judgment based on the loss-in-progress doctrine; (4) GRANTS IN PART AND DENIES IN PART Travelers’ motion for partial summary judgment based on the lack of property damage; (5) GRANTS Fireman’s Fund’s motion and DENIES Dow’s cross motion for partial summary judgment regarding claims and suits where Dow is not a named party; and (6) DENIES Century’s motion for summary judgment regarding indemnification coverage under its accident-based policies. I. Summary Judgment Standard Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After adequate time for discovery and upon motion, Rule 56(c) mandates summary judgment against a party who fails to establish the existence of an element essential to that party’s case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant has an initial burden of showing “the absence of a genuine issue of material fact.” Celotex, 477 U.S. 317, 323, 106 S.Ct. 2548. Once the movant meets this burden, the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To demonstrate a genuine issue, the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant; a “scintilla of evidence” is insufficient. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The court must believe the non-movant’s evidence and draw “all justifiable inferences” in the non-movant’s favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. II. Analysis A. Pollution Exclusions — Sudden and Accidental Exception Fireman’s Fund and Travelers/Aetna (collectively “Insurers”) have filed motions for partial summary judgment arguing that there is no duty to indemnify Dow under their policies containing a pollution exclusion with an exception for “sudden and accidental” discharges, dispersals, releases or escapes. A number of Excess Insurers have filed Joinders. Fireman’s Fund issued primary comprehensive general liability (CGL) policies to Dow covering the period from 11/19/56 through 4/1/76. The policies that were in effect from 7/30/70 to 4/1/76 contain a pollution exclusion with a sudden and accidental exception. Aetna (now Travelers CS) issued primary CGL policies to Dow covering the period from 4/1/76 — 4/1/85. Aetna also issued excess indemnity policies to Dow from 1972 through 1985. Each of these policies contains a pollution exclusion with a sudden and accidental exception. No primary policy issued to Dow prior to July 30, 1970 contained an exclusion for pollution-related claims. It was not included in the excess policies until March 31, 1971, as the London Excess Insurers concede. Insurers argue that Dow cannot present evidence showing that the “sudden and accidental” exception to the pollution exclusion applies as to some or all of the ten Final Sites, and therefore, Dow is not entitled to indemnification coverage at those sites for the years their policies contained this pollution exclusion. Specifically, Fireman’s Fund argues that the pollution exclusion in its policies for the years 7/30/70 to 4/1/76 bars Dow’s claims at the Cliffs-Dow, Conalco, Daffron & Pinion, Silresim and Harris/Farley Street Final Sites. Aetna argues that the pollution exclusion in its primary and excess policies bars Dow’s claims as to each of the ten Final Sites. Dow does not dispute that it has the burden of establishing that the exception to the pollution exclusion applies. Dow also concedes that there were no sudden and accidental events at the Cliffs-Dow, Daffron & Pinion,, and Conalco Sites and thus no indemnification coverage exists for the years the subject pollution exclusions were in effect as to these three Final Sites. Dow asserts, however, that Insurers are not entitled to summary judgment on their pollution exclusion motions as to the remaining seven Final Sites because it has established that genuine issues of material fact exist whether some of the damage at those Final Sites could be the result of “sudden and accidental” discharges. Dow further asserts that: (1) under Michigan law, the proper focus for determining whether a discharge at a landfill is sudden and accidental is the discharge of pollutants from a landfill into the surrounding soil, groundwater and surface water, and not the initial placement of waste in the landfill; (2) Michigan law distinguishes between direct discharges into the environment without any expectation of containment and direct discharges where there is an expectation of containment; and (3) Michigan law recognizes that identifiable discharges can be separated from a larger pattern of discharges for application of the sudden and accidental exception to the pollution exclusion clause in an insurance policy. See South Macomb Disposal Authority v. American Ins. Co., 225 Mich.App. 635, 572 N.W.2d 686 (1997). Insurers argue that South Macomb was wrongly decided and further argue that, under Michigan law, the proper focus is on the initial discharge of pollutants or contaminants into the environment and, where a regular pattern of discharges has taken place, some evidence of discrete incidents of subsequent “sudden and accidental” releases is not enough to fall within the purview of the sudden and accidental exception to the pollution exclusion. Insurers further argue that, even if South Macomb correctly states Michigan law, Dow has not presented evidence showing that: (1) these events satisfy the Michigan Supreme Court’s definition of “sudden and accidental”; and (2) these events caused the pollution in question. 1. Michigan Law The proper standard of review to be applied here is that stated by the Sixth Circuit in Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 103 (6th Cir.1995); i.e., whether, drawing all justifiable inferences in its favor, Dow has presented evidence upon which a reasonable jury could find that some damage at the subject sites could be the result of “sudden and accidental” discharges, releases, dispersals, or escapes as those terms have been defined under Michigan law. a. The Proper Focus is on the Release or Discharge From Landfill into the Environment This Court finds the Michigan Court of Appeals’ recent decision in South Macomb to be persuasive and controlling here. In South Macomb, the court held that the proper focus when applying the sudden and accidental exception to the pollution exclusion is on the discharge or release of contaminants from a landfill into the environment and not on the initial placement of waste in the landfill. This Court predicts that the Michigan Supreme Court will likewise find persuasive the South Macomb court’s analysis and conclusions on this pollution exclusion issue. “[A]n intermediate appellate court’s judgment that announces a rule of law is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” (internal quotes and citations omitted). FL Aerospace v. Aetna Cas. & Sur. Co., 897 F.2d 214, 218-19 (6th Cir.1990), cert. denied, 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d 238 (1990). This prediction finds support in the Michigan Supreme Court’s action on the appeal in Kent County v. Home Ins. Co., 217 Mich.App. 250, 551 N.W.2d 424 (1996), vacated in part and remanded in part, 568 N.W.2d 671 (1997), where, in lieu of granting cross-appellant’s application for leave to appeal, it vacated “that portion of the judgment of the Court .of Appeals holding that the ‘sudden and accidental’ exception to the pollution exclusion clauses is not triggered here” and remanded “the matter to the trial court for a determination of whether the discharges that occurred from the landfill into the environment were ‘sudden and accidental.’ ” 568 N.W.2d 671 (emphasis added). In South Macomb, the court clarified that when determining whether the sudden and accidental exception applies to discharges or releases at a landfill designed to contain contaminants placed in that landfill, the court: (1) focuses on the discharge or release of contaminants from the landfill into the environment and not on the mere disposal of wastes at the landfill; (2) may separate out isolated, identifiable discharges from an overall pattern of discharge; and (3) examines whether there is evidence supporting the insured’s claim that these separate, isolated, identifiable discharges were “sudden and accidental” as those terms have been defined by the Michigan Supreme Court. The South Macomb court rejected the same arguments Insurers raise here and announced a rule that distinguishes between direct discharges into the environment without any expectation of containment; i.e., the discharge of pesticide into the atmosphere present in Protective Nat’l Ins. Co. of Omaha v. City of Woodhaven, 438 Mich. 154, 476 N.W.2d 374 (1991), and direct discharges where there is an expectation of containment; i.e., “in a landfill designed and licensed to contain waste” as present in Kent County and South Macomb. South Macomb, 225 Mich.App. 635, 572 N.W.2d 686, 698. Acknowledging that its prior holding in Kent County involved examination of an exception to the pollution exclusion with language different from the “sudden and accidental” language present in South Macomb and further acknowledging that the landfills at issue in South Macomb “were fraught with problems arising from their operation and maintenance”, the South Macomb court concluded it was' still proper to “focus on the discharge of contaminants from the landfills” rather than the insured’s initial discharge of waste into the landfills. Id. See also FL Aerospace, 897 F.2d at 220 (where the court observed that the “[m]ere delivery of waste for storage at a facility that is licensed to store waste is not a discharge of pollutants into the environment”). b. It is Proper to Separate Identifiable “Sudden and Accidental” Discharges from a Larger Pattern of Discharge In South Macomb, the court also concluded that it is proper “to separate identifiable discharges from a larger pattern of discharge or leakage” when considering the “sudden and accidental” exception to the pollution exclusion. 225 Mich.App. 635, 572 N.W.2d 686, 700. It reached that conclusion after examining the same policy language involved here, distinguishing the same cases Insurers rely upon here, and rejecting an argument similar to one Insurers present here—that the court should avoid an improper “ ‘microaiialytical’ approach.” Id. (discussing Ray Industries, Inc. v. Liberty Mutual Ins. Co., 974 F.2d 754 (6th Cir.1992) and Lumbermens Mut. Cas. Co. v. Belleville Industries, Inc., 938 F.2d 1423 (1st Cir.1991)). The court found the following factors, which were present in South Macomb, distinguished it from those presented in the cases the Insurers relied upon: “(1) the [alleged sudden and accidental] outbreaks purportedly were identifiable and isolated; (2) they were different in kind from the overall leaking through the porous bottoms of the landfills; . (3) specific damage arguably may be traced to these outbreaks; and (4) [the insured] has provided evidence of their occurrence.” Id. As the Sixth Circuit observed in Petroleum Specialties, 69 F.3d at 103-04, an insurer cannot rely on a “parade of horribles” as a strawman to support a claim that its pollution exclusion bars coverage because the pollution at the site “was certainly intentional and of long duration.” Id. at 103-04. Finding the insured’s discovery responses, which described a series of discrete releases during the policy years, sufficient to survive the insurer’s motion for summary judgment, the Petroleum Specialties court emphasized that “[t]here is no per se rule that a large amount of contamination, spread over a long period of time, must result only from intentional spills, just as a court does not presume that a small amount of contamination is from ah accidental spill.” Id. at 104. The court further clarified that although the insured’s evidence was “not overwhelming” and would not be “enough by itself to warrant summary judgment” in its favor “because there is a dispute over the link between these spills and the current contamination”, the evidence was “more than a scintilla” and sufficient to meet the insured’s burden thus defeating the insurer’s motion for summary judgment. Id. at 103, 106. See also Grant-Southern Iron & Metal Co. v. CNA Ins. Co., 905 F.2d 954, 955, 957-58 (6th Cir.1990) (where the court observed that, even though the sudden and accidental exception to the pollution exclusion “has a temporal component and does not describe continuous or ongoing pollution events”, a “genuine issue of material fact” exists when there is evidence that the alleged damage “may have been the result of a few discrete polluting events,” each of which was sudden and accidental); Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 648 N.E.2d 1272, 1275-76 (1995) (where the court reversed summary judgment in the insurers favor despite evidence that most of the “pollution occurred routinely, as part of its regular business activities, because the insured had presented evidence of discrete, sudden and accidental releases that could be distinguished from events that occurred as part of the insured’s regular business”). This Court agrees with Dow that a- blanket refusal to separate out evidence of discrete, isolated polluting events that are alleged to be sudden and accidental from allegations of overall polluting and a parade of horribles would expand the pollution exclusion and swallow the exception. Michigan law does not permit the Court to do this. See Farm Bureau Mut. Ins. Co. v. Stark, 437 Mich. 175, 180-81, 468 N.W.2d 498, 501 (1991) (where the Michigan Supreme Court observed that policy exclusions are to be strictly construed in the insured’s favor). c. The Insured’s Summary Judgment Burden The South Macomb court evaluated the sufficiency of insured’s evidence of allegedly discrete, sudden and accidental discharges as follows. First, it examined whether the allegedly discrete, isolated polluting events could be considered separate from evidence of typical, ongoing, gradual discharges of pollutants or contaminants; and second, examined whether the insured’s evidence was sufficient to. survive a summary judgment motion challenging that these events did not meet the Michigan Supreme Court’s definitions of “sudden” and “accidental.” Applying that analysis to the facts presented in South Macomb, the court first concluded that the insured’s evidence that three discrete outbreaks of leachate from the sides of the subject landfills was sufficient to permit the trial court to separate “these claimed isolated ‘sudden and accidental’ discharges from the overall continuous leaking of the landfills.” Id., 572 N.W.2d at 701. The court next evaluated whether the insured has shown that genuine issues of material fact existed as to whether these discrete events fit within the meaning of the “sudden and accidental” exception to the pollution exclusion. To be considered “sudden,” the discrete discharge must be “immediate and unexpected”. Id. at 698. To be considered “accidental,” the discrete discharge must have occurred “unexpectedly and unintentionally”; “by chance and ‘out of the ordinary course of things.’ ” Id. The 'court, recognizing that it evaluates whether the insured “expected” the discrete discharges using an objective standard, observed that “[wjhere the insured should have expected the discharge, the discharge cannot be considered ‘sudden and accidental.’ ” Id. at 701 (internal quotes and citations omitted). The court then distinguished the facts presented in City of Clare from those presented in South Macomb because “the sites in [South Macomb ] satisfied the minimum requirements for licensure and remained licensed while operating.” Id. at 702. Thus, the court concluded, “[o]n these facts only, it cannot be said that [the insured] expected the discharges.” Id. at 702. The court further observed, however, that evidence of violations at the landfill could create a genuine issue of material fact whether the insured expected the subject discharges. Stated otherwise, the critical inquiry here is whether the discrete, isolated discharges were “expected”, and evidence of a landfill’s state-of-the-art design, licensing, and violations is probative of whether there was an expectation of containment and expectation that contaminants would not be released from the landfill into the environment. Finally, the South Macomb court examined the insured’s evidence regarding “each of the three allegedly distinct leachate outbreaks” separately to see if it was sufficient to create a genuine issue of material fact that the discharge was “sudden and accidental”. As to the insured’s claim of a 1971 discrete discharge, the court found that the insured’s evidence, regarding the design and operation of the site as well as a witness’ testimony that problems with underdrains resulted in a plugged system which in turn caused the 1971 outbreak, was sufficient to create “a genuine issue of material fact whether this outbreak was sudden and accidental.” Id. at 701. As to the remaining two discrete discharges; i.e., a June 1976 outbreak and a 1980 outbreak, the court found that the insured’s evidence was insufficient to create a genuine issue of material fact. The court concluded these discrete discharges could not be classified as “sudden and accidental” because the evidence showed that the outbreaks were caused by erosion ■ gullies that were described as a typical occurrence; that the insured was aware of ■ conditions' that caused these gullies; that the insured was cited for violations that related to the generation of erosion gullies, and thus the 1976 and 1981 outbreaks should have been expected by the insured. Id., 572 N.W.2d at 702-03. 2. Dow’s Alleged “Sudden and Accidental” Polluting Events To survive summary judgment here, Dow must come forward with evidence sufficient to create a genuine issue of material fact whether the allegedly discrete polluting events were sudden and accidental. Speeifi-cally, Dow must present evidence that at each site: (1) there was a discrete, identifiable, isolated discharge or-release that can be separated from the historical, ongoing, gradual discharges or releases of pollution or contaminants that occurred in the normal course of operation; (2) each of those discrete discharges can be considered “sudden and accidental” as defined by the Michigan Supreme Court; and (3) that some of the relevant damage at a particular site arguably may be traced to these discrete “sudden and accidental” discharges. See South Macomb; Petroleum Specialties. The Ten Final Sites can be separated into three categories: 1. Dow’s Manufacturing Facility Sites -Conalco -Daffron & Pinion -Cliffs-Dow 2. Third Party Waste Disposal Sites -PPI -Silresim -Harris/Parley Street -Hartley' & Hartley 3. Dowell/DSI Sites -Brookhurst, Wyo. -Monahans, Texas -Midland, Texas Dow does ndt contest that summary judgment on the pollution exclusion issue is warranted under the post-1970 primary policies and post-1'971 excess policies as to the Co-nalco, Daffron & Pinion, and Cliffs-Dow Final Sites. Dow further concedes that summary judgment is warranted as to those claims arising from the PPI/Scenic Highway site but not the PPI/Brooklawn site. Dow does contest Insurers’ claim that they are entitled to summary judgment as to the remaining sites because genuine issues of material fact exist whether the polluting events identified below fall within the purview of the sudden and accidental exception to the pollution exclusion. a. Fireman’s Fund’s Pollution Exclusion Motion is Granted Fireman’s Fund brings this motion arguing Dow cannot present evidence showing the' sudden and accidental exception to the pollution exclusion applies and thus excludes Dow’s claims for the years 7/30/70 to 4/1/76 at the following Final Sites: Cliffs-Dow, Co-nalco, Daffron & Pinion, Silresim - and Harris-Farley. Fireman’s Fund does not seek summary judgment on the pollution exclusion with regard to the PPI, Hartley & Hartley, Brookhurst, Midland, or Monahans, Texas sites. Fireman’s Fund’s motion for partial summary judgment on the pollution exclusion is GRANTED. Dow cannot point to any facts to establish any “sudden and accidental” releases at the Conalco, Daffron & Pinion, Cliffs-Dow,' Silresim and Harris/Farley Street sites prior to the expiration of Fireman’s Fund’s policies in April 1976. As to the first three sites, Dow concedes it cannot provide evidence supporting application of the sudden and accidental exclusion for the Cliffs-Dow, Conalco, and Daffron & Pinion sites. As to the Silresim and Harris/Farley Street sites, Dow presents evidence of alleged “sudden and accidental” polluting events that took place after Fireman’s Fund’s policies expired in April 1976. Furthermore, with respect to the Silresim site, because Dow concedes that it did not begin its use of that site prior to 1972, there is no indemnification coverage available under Fireman’s Fund’s pre- or posF-1970 policies. b. Travelers/Aetna’s Pollution Exclusion Motion is Granted in Part and Denied in Part Dow does not contest Travelers/Aetna’s motion as to the Cliffs-Dow, Daffron & Pinion, and Conalco Sites. Therefore, its motion for partial summary judgment on the pollution exclusion issue is GRANTED .as to those sites, and Dow is not entitled to indemnification coverage for those sites under the Aetna primary and excess policies covering the period from 1972 through 1985. As to the remaining sites, as discussed more fully below, Dow has not met its summary judgment burden with regard to allegedly “sudden and accidental” discharges at the Harris/Farley Street, Brookhurst, Midland and Monahans, Texas sites. Accordingly, Travelers’ motion is GRANTED as to these Sites as well. Dow has, however, met its summary judgment burden with regard to allegedly “sudden and accidental” discharges at the PPI/Brooklawn, Silresim, and Hartley & Hartley sites, and Travelers/Aetna’s motion is DENIED as to these sites. (1) PPI Site Petro-Processors, Inc. (PPI) operated two waste disposal sites in Baton Rouge, Louisiana. The PPI waste facility, known as the Brooklawn Site, was owned and operated by PPI from approximately 1968 or 1969 through 1980. Dow never owned or operated this site. From 1968 until late 1970, PPI disposed of Dow’s waste at the Brooklawn Site. Dow has come forward with evidence that: (1) a discrete, identifiable discharge occurred at the Brooklawn Site that can be separated from the historical, ongoing, gradual discharges of pollutants; i.e., a 1970 sudden and massive levee break; (2) this discrete discharge was “sudden” and “accidental” as those terms have been defined under Michigan law; and (3) the relevant property damage at the Brooklawn site — groundwater contamination — may arguably be traced to the 1970 massive levee break. Dow’s proferred evidence is sufficient to create a genuine issue of material fact whether the 1970 levee break fits within the “sudden and accidental” exception to the pollution exclusion in Dow’s policies. As evidence of a discrete “sudden and accidental” polluting event at Brooklawn, Dow points to deposition testimony, an internal Dow document, its expert’s report, and a complaint in a 1970 lawsuit brought against Dow alleging that cattle and property adjacent to the PPI/Brooklawn site were damaged as a result of a severe, massive levee break at that site. As further support, Dow presents deposition testimony that the physical evidence at the site supports the conclusion that there was a sudden, massive levee break, which was different in kind from the leaking and seepage which was also allegedly present at the site, and furthermore, the massive levee break contributed to the extent and nature of contamination at the site. See Robertson Dep. at 171-172,190-195. Dow also presents evidence which raises a genuine issue of material fact whether this 1970 discharge was “unexpected” by PPI. See Matakas v. Citizens Mut. Ins. Co., 202 Mich.App. 642, 509 N.W.2d 898, 903 (1993) (where the court observed that “the focal point of the inquiry is whether the release was ‘sudden and accidental’ from the standpoint of the polluter”). In support of its position that PPI placed the waste in the levee with the expectation that it would be contained and therefore its release into the groundwater was unexpected and accidental, Dow presents evidence that: (1) PPI’s use of the levee comported with state-of-the-art knowledge at the time; and (2) a governmental agent, who visited the site around the time of the 1970 levee break, found the levees and the total PPI/Brooklawn site to be in good order. (2) Silresim Site This site is located in Lowell, Massachusetts and was owned and operated by Silresim Corporation from 1971 to 1977 as a chemical reprocessing and waste recycling facility. The facility was designed to recycle chemicals or convert chemical wastes to a form suitable for disposal by incinerator or at off-site landfills. Waste was accepted at the site in drums and other containers. Silresim Corp. received a hazardous waste collection and disposal license in 1973 from the Massachusetts Division of Water Pollution Control. Silresim was also on a state list of approved waste disposal sites. Silre-sim provided services which included waste hauling, storage, laboratory analysis, recycling and reclaiming, and chemical waste disposal. Silresim ultimately had its license revoked. It filed for bankruptcy in March of 1977 and abandoned the property. The facility was never owned or operated by Dow. Dow sent wastes to the Silresim Site from approximately 1974 through 1977. It had a valid license during the entire period that Dow was sending wastes to the site, and several witnesses testified that they had either visited or worked at the site during this time and found it to be well-run and satisfactory. See Dow Exs. 17, 19, 20, 21, 25, 27. Dow has come forward with evidence that: (1) discrete, identifiable discharges occurred at Silresim that can be separated from the site’s ordinary operations; i.e., three fires and explosions between the years 1977 and 1983; (2) these discrete discharges were “sudden and accidental” as those terms have been defined under Michigan law; and (3) the relevant property damage at Silresim may arguably be traced to the three fires and explosions. Dow’s proferred evidence is sufficient to create a genuine issue of material fact whether these alleged “sudden and accidental” polluting events fit within the exception to the pollution exclusion in Dow’s policies. Dow presents evidence of an October 22, 1977 chemical fire caused by a short circuit in an electric suction pump in a large pit containing wastes where, in addition to the raging fire, barrels exploded in the air and crashed to the ground; an August 20, 1978 fire which destroyed the site’s main building including a laboratory, a storage facility, and a chemical process area; and an April 1983 fire at the site. In Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 648 N.E.2d 1272, 1276 (1996), the court, applying the same interpretation of the terms “sudden and accidental” as the Michigan courts, found that evidence of these same events at Silre-sim created triable issues of fact concerning the pollution exclusion. The court’s reasoning, which was largely adopted by the South Macomb court, is as follows: a fire and subsequent explosion resulted in a release at the Silresim site. The record does not seem to establish that these events occurred as part of [the] reclamation site’s ordinary operations. Furthermore, the uncommon nature of these releases tends to establish the “sudden and accidental” character of the events. Although most of the releases resulted from the reclamation site’s routine business practices, it was error for the judge to grant summary judgment in favor of the defendants because the plaintiff has proffered evidence that some of the releases were indeed “sudden and accidental.” Nashua, 420 Mass. at 203, 648 N.E.2d at 1276. At the hearing on this matter, Insurers stated that they were not disputing Dow’s claim that the fires had occurred; rather, they were disputing that Dow has presented evidence that the fires were “unexpected” and that property damage at the Silresim site could arguably be traced to these fires. Contrary to Insurers’ assertion, Dow has presented evidence, including contemporaneous newspaper articles and sworn testimony from other lawsuits involving environmental damage at the Silresim site, that supports its position that: (1) the release of chemicals from these fires and explosions was qualitatively different from the gradual, ongoing polluting events that allegedly occurred as part of Silresim’s ordinary operations; (2) the fires and releases were unexpected; and (3)' the releases from the fires could arguably be traced to the relevant property damage at the Silresim site. Dow’s proffer of the affidavit of a senior remediation engineer used in another lawsuit involving this same site is sufficient to survive summary judgment under the standard set forth in Petroleum Specialties, 69 F.3d at 103. See Americhem Corp. v. St. Paul Fire & Marine Ins. Co., 1995 WL 861204, *5 (W.D.Mich. July 12, 1995) (op. amended Jan. 16, 1996) (where the district court held that statements from another legal action, provided under oath and addressing the same issues as those pending before it, were admissible as affidavits in the action pending before it). (3) Harris/Farley Street Site The Harris/Farley Street disposal site was operated by Davis Enterprises. It was never owned or operated by Dow. It is located in Houston, Texas and occupies approximately two acres. The site is bounded on the east by Farley Street, on the south by Ellington Air Force Base, and on the west by a municipal solid waste landfill. Dow is alleged to have shipped styrene tars to the Farley site for a few months in 1958; from approximately April 1958 through June 1958. In 1958, Davis Enterprises ceased its disposal business at the Harris/Farley Street site. Approximately 23 years later, the water in a swimming pool at a home, then located on the site, turned black. It is alleged that the swimming pool was constructed in an area near where tar wastes were disposed and these tars wastes pierced the pool’s polyvinyl liner. The homeowner subsequently filled in the pool with clay but continued to express concerns about well water contamination. These concerns triggered the governmental agency environmental action that Dow seeks coverage for here. In July 1981, after the EPA had identified the Farley Street site as a Potential Hazardous Waste site, EPA contractors conducted a field investigation which included soil borings and installation of four groundwater monitoring wells. Despite evidence that contaminants had migrated and seeped into the Farley Street site swimming pool and despite the fact that Dow’s answers to interrogatories fail to identify a “sudden and accidental” polluting event at this site, Dow now claims such an event exists. Dow now alleges that, when the EPA monitoring well number 1 (MW-1) was installed in 1981, it punctured one of the containment soil zones (another zone is alleged to be in the area where the swimming pool was built) and caused groundwater to become contaminated. Dow asserts that this puncture is a “sudden and accidental” polluting event which arguably resulted in some of the property damage it was required to remediate and for which it now seeks coverage. Dow supports its argument with evidence that MW-1 is the only well showing detectable levels of groundwater contamination at this site. Insurers argue that this Court should refuse to consider Dow’s untimely claim that there is evidence of a “sudden and accidental” polluting event which it failed to identify in its interrogatory answers. Insurers further argue that, even if this Court does consider Dow’s untimely claim, Dow has not met is summary judgment burden with regard to the alleged “sudden and accidental” polluting event. This Court agrees with Insurers. The report Dow relies upon for support does not, without impermissible speculation and conjecture, give rise to the inference that the placement of MW-1 at the Farley Street site resulted in the property damage Dow was required to remediate. See Harrow Products, Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1020 (6th Cir.1995) (where the court observed that speculation and conjecture is insufficient to withstand a motion for summary judgment). Dow’s argument ignores the very claims of groundwater contamination that brought the EPA and the monitoring wells to Farley Street in the first instance; i.e., concerns about well water contamination and contaminated wastes seeping through a swimming pool’s liner and turning the pool’s water black. This Court rejects Dow’s belated attempt to bootstrap after-the-fact remediation efforts to support its argument that “sudden and accidental” polluting events caused the property damage it was required to remediate in the first instance. (4) Hartley & Hartley Site The Hartley & Hartley (“H & H”) landfill site is located on 200 acres in Bay County, Michigan and is surrounded by marshes and ponds, including the Tobico Marsh State Game Area. It was owned and operated by H & H from 1955 to 1978 and received both liquid and solid industrial wastes. Dow never owned or operated.the facility but sent wastes to it for disposal from 1958 to 1978. There was state agency oversight and involvement at H & H from approximately 1966, and the landfill had a valid license throughout its entire period of operation. The site closed in 1978. Dow argues that several allegedly “sudden and accidental” events at the H & H site entitle it to indemnification coverage. The first “sudden and accidental” polluting event Dow identifies is a Winter 1977 fire and explosion caused when a H & H employee, attempting to thaw a frozen line with a torch, accidentally started a huge fire and explosion of a liquid receiver tank containing 80,000 gallons of benzene which spread to other tanks. Dow presents evidence, including deposition testimony and expert reports, that: (1) the disposal facility’s practices complied with contemporary standards and it was licensed during Dow’s use; (2) this 1977 benzene fire and explosion was different in kind and thus can be separated from the overall, historical pollution that allegedly occurred at the site; (3) this discrete discharge was sudden and unexpected and therefore falls within the exception to the pollution exclusion; and (4) some damage at H & H could be the result of this 1977 fire and explosion; i.e., this was a huge benzene spill and benzene was found in the soil and groundwater at that site. Drawing all justifiable inferences in its favor, Dow has come forward with evidence upon which a reasonable jury could find “that some damage [at H & H] could be the result of’ this alleged “sudden and accidental” 1977 fire and thus, as to this discrete event, Dow defeats 'Insurers’ motion for summary judgment. Petroleum Specialties, 69 F.3d at 103. Dow’s preferred evidence of other allegedly “sudden and accidental” polluting events at H & H, however, is insufficient to defeat the Insurers’ motions for summary judgment. These additional events include a mid-1960’s crude oil pipeline break, a Fall 1977 mixing tank explosion, a July 27, 1977 accidental spill from an oil line, and a few occasions from 1976 to 1978 when leachate collected outside a collection pond after H & H workers damaged underground tiles draining leachate into a collection pond. Dow’s evidence, does not show that these events: (1) are 'different in kind and thus can be separated from the historical, ongoing, gradual discharges of pollution at H & H; (2) were “sudden” and “accidental” under Michigan law; and (3) may arguably be traced to the relevant property damage at the site. Dow must do more than merely present evidence that certain events occurred and then baldly assert that they were “sudden” and “accidental” and therefore fall within the exclusion to Insurers’ pollution exclusion. As South Ma-comb teaches, Dow must present evidence showing that the polluting event was uncommon, unexpected and not part of routine operations. Dow has not done that here as to these additional events. In fact, deposition testimony Dow provides as evidence of the 1976-1978 leachate discharges from a collection pond refutes rather than supports Dow’s position. The testimony is that this was not an unusual event and that it occurred about two or three times a year. In sum, at the H & H site, Insurers are not entitled to summary judgment. At trial, however, the only “sudden and accidental” polluting event to be considered is the 1977 benzene fire and explosion, and Insurers will be liable only for contamination that Dow establishes resulted from this 1977 benzene fire and explosion. (5) Brookhurst Site The Casper, Wyoming Dowell facility was owned and operated by Dow’s Dowell Division from 1954 through 1984 and by Do-well Schlumberger, Inc. from 1984 through 1993. The site is adjacent to the Brookhurst subdivision. Dowell used the Wyoming facility as a base for oil-well and gas-well enhancement services. Its on-site operations included chemical storage in above-ground storage tanks; parts washing with various cleaning solvents; and truck washing with powdered soap and water. Relevant facilities at the site include a septic system, a concrete slab for a fume control tank, and an “acid plant”' where hydrochloric acid was stored, mixed, and loaded onto trucks for use in the field. Also, in the late 1960’s, an above-ground bulk storage tank was installed to contain toluene. Until the 1970’s, when a new wash water system was installed, wash water drained through a vitrified clay pipe main line, through a 1,000' gallon oil/water separator tank, and into a gravel sump or pit. In the summer of 1986, residents of the Brookhurst subdivision, which is located immediately north of the Dow/DSI Casper facility, began to complain about noxious odors and potential contamination of their drinking water. These concerns led to an investigation by the Natrona County Health Department, the Wyoming Department of Environmental Quality and the E-PA. An investigation ultimately concluded that the Brookhurst subdivision groundwater was contaminated. The contamination was attributed to several of the commercial/industrial operations surrounding Brookhurst, including the Dow/DSI Casper facility. Dow identifies two allegedly “sudden and accidental” polluting events at this site. It presents evidence that on June 10, 1982, a rail car exploded and 100 gallons of hydrochloric acid were spilled, and on December 9, 1983, 500 gallons of hydrochloric acid spilled from the acid storage tank when the gauge that was used to measure the amount of acid in the tank broke. Insurers do not dispute that these events were temporally abrupt. Rather, they argue Dow has failed to come forward with evidence showing that these events were different in kind thus allowing them to be separated out from evidence of historical, ongoing discharges or spills of contaminants that allegedly occurred as part of the routine operations at the site. Insurers also point to record evidence showing that the amounts involved in the two spills were below the amount necessary to be reported to the government, and showing the spills were immediately cleaned up by neutralizing all the impacted soil and removing it off-site. .In light of this evidence, Insurers assert that Dow cannot show that the soil and water contamination at this site arguably may be traced to these de minimis spills. In short, they argue a reasonable jury considering this evidence could not, without impermissible speculation and conjecture, find for Dow on this issue. This Court agrees. Dow’s expert observes that the Brookhurst facility, as part of its ongoing operations, used hydrochloric acid and had an acid plant “where hydrochloric acid was stored, mixed, and loaded onto trucks for use in the field.” Dow Ex. 2, Minear Expert Report at 19-20. The expert opines that “the chlorinated hydrocarbon contamination emanating from [the Brookhurst site] is likely attributable in part to spills of hydrochloric acid.” Id. at 19-20, 22. The expert goes on, however, to conclude that “spills at storage facilities were common at industrial operations of this sort in the relevant time period, and were not believed to cause environmental contamination.” Id. In light of this testimony, the Court agrees with Insurers that Dow has not demonstrated that the two minor spills it identifies as “sudden and accidental” polluting events are different in kind and thus can be separated out from other hydrochloric acid spills that commonly occurred as part of Brookhurst’s normal operation. (6) Midland Site Dow’s Midland, Texas facility was operated by its Dowell Division from 1952 to 1984, and by Dowell Schlumberger from 1984 to 1993. Dowell used the facility as a base for oil and gas well enhancement services which were performed at its customer’s sites. Materials used in its operation, including hydrochloric acid, sand, cement and gasoline for the facility’s trucks, were stored in above-ground and underground storage tanks at the site. The site also had acid mixing facilities, an open-topped underground concrete tank, truck washes, maintenance shops, and a laboratory. The “acid plant” had a concrete loading pad, two sumps, a 500 gallon buried steel tank, and an underground pipeline that was used to send acid plant wastewater to the underground concrete tank. The underground concrete tank operated from approximately 1955 to 1983. The tank received wastewater generated at the facility, including fluids from the acid mixing facility, the truck wash, and the laboratory sump, before those fluids were removed for disposal. Dow identifies a number of allegedly “sudden and accidental” events which it argues remove its claims from the purview of the pollution exclusion. The first involves the discovery in 1978 of a crack or hole in the underground concrete tank located at this site. The testimony of Mr. Leininger, the manager of this facility, however, refutes rather than supports Dow’s claim that discharges from this crack or hole were “unexpected” or “abrupt” and thus “sudden and accidental.” Mr. Leininger testified that when he first arrived at the facility, he could see a crack or hole in the tank; and when he asked about it, he was told that the" pit “did not have very good integrity and would not hold liquid as a general rule.” Leininger Dep. at 138. Mr. Leininger further testified that “I proceeded to plug the thing up as best I could.” Id. He plugged the hole or crack with cement and “[apparently it was successful, given we at least had to vacuum it out on more and more occasions after that.” Id. at 139. Dow’s argument that any subsequent releases from this crack were “sudden and accidental” is not supported by the record evidence. Furthermore, a similar argument was recently rejected by the Sixth Circuit in Ray Industries, 974 F.2d at 768-69. In Ray Industries, the insured argued, despite a stipulation that “barrels were routinely crushed on a regular basis”, that each discharge from a crushed barrel “was sudden, when viewed in isolation.” Id. at 768. Rejecting the insured’s argument, the Ray Industries court observed that “under this theory, all releases would be sudden; one can always isolate a specific moment at which pollution actually enters the environment. Rather than pursing such metaphysical concepts, we choose to recognize the reality of [the insured]’s actions in this case.” ■ Id. at 768-79. The court quoted with approval a decision from the First Circuit addressing a similar claim: [mjere speculation under these circumstances that any individual instance of disposal, including leaks, occurred “suddenly” cannot contradict a reasonable reading of the allegations that the entire pattern of conduct was not a “sudden and accidental” occurrence. Id. at 769 (quoting A. Johnson & Co., Inc. v. Aetna Cas. and Sur. Co., 933 F.2d 66, 75 (1st Cir.1991)). The decision in South Macomb is not to the contrary. South Macomb, as an .important initial step in the “sudden and accidental” analysis, observes that the insured must present evidence that shows the allegedly discrete, isolated “sudden and accidental” polluting event is different in kind and thus may be considered separate from evidence of typical, ongoing, gradual discharges of pollutants or contaminants at the site. Dow has not done that here. Dow also identifies the 1989 discovery of holes in the underground gasoline storage tanks as evidence of a “sudden and accidental” polluting event at the Midland site. These holes were discovered in 1989 when the tanks were removed. Dow baldly asserts, without evidentiary support, that “regardless of how these holes developed, there can be no dispute that the original release was sudden.” The “Underground Storage Tank Removal” report prepared for Dow refutes rather than supports its position. It provides that these tanks “were not designed for burial.... [and][t]he tops of both tanks were rusted through and leaking.” Dow Ex. 70 at 12. This evidence does not support an inference that the original release occurred “suddenly.” Rather, it gives rise to the inference that discharges from the rusted tanks occurred gradually over a long period of time. As the Ray Industries court observed, isolation of a specific moment when pollution first entered into the environment on these facts is nothing more than' mere speculation. Ray Industries, 974 F.2d at 768-69. Dow further argues that unintended occasional overfills of underground storage tanks and the December 30, 1983 overfill of an acid tank constitute evidence of “sudden and accidental” polluting events that remove its claims from the purview of the pollution exclusion. This Court disagrees. As to the overfilling of underground storage tanks, the report Dow relies upon for support states that “[t]here was visible evidence of overfilling.” Dow Ex. 70 at 11. This' evidence does not support an inference that these overfills were unexpected in the course of daily operation at the site. Moreover, as the Sixth Circuit observed in Harrow Products, 64 F.3d at 1020, evidence of “occasional accidental spills” without further evidence of “specific instances” does not suffice as even a scintilla of evidence “on an issue on which [the insured] carries the burden of production and persuasion”. It is not “evidence on which the jury could reasonably find for the plaintiff.” Id. (internal quotes and citation omitted). Rank speculation cannot substitute for facts demonstrating the existence of a “sudden and accidental” release. As to the December 1983 overfill of the acid tank, Dow provides no evidence that would distinguish this event from its routine operation at this site. As stated above, Dow must do more than merely identify an isolated event and baldly assert that it was a discrete, “sudden and accident” polluting event. As the court observed in South Ma-comb, Dow must present evidence showing that the event was an uncommon, unexpected event and not part of its routine operations and showing that property damage at the site may arguably be traced to this event. Dow has not done that here. (7) Monahans Site The Monahans, Texas facility was operated by Dow’s Dowell Division from 1960 to 1984, and by Dowell Schlumberger, Inc. from 1984 to 1993. This facility was used as a base for oil and gas well enhancement services which were performed at its customer’s operations. Its features included above-ground storage tanks, underground storage tanks, a surface impoundment, a drum storage area constructed in 1972, a truck wash which began operating in 1962, and an “acid plant” constructed in 1972. The surface impoundment was constructed and placed into operation in 1960, and was used until approximately 1983. The surface impoundment received all the waste water generated at the facility, inelud-ing fluids from the truck wash and acid plant. Acid was handled and disposed at the facility when operations began in 1960. After the acid plant was constructed, it was used to store and blend the hydrochloric chemical mixtures used for acidizing wells. In support of its argument that there were “sudden and accidental” polluting events at the Monahans site, Dow presents evidence that when the two underground tanks were removed, it was discovered that they had holes in the bottoms. Relying on this evidence, Dow asserts that the initial release “was clearly sudden.” Similar to the situation above, Dow’s assertion is refuted, not supported, by the report prepared for it detailing the removal of these underground storage tanks. The report provides that' “[h]oles of varying sizes” were observed once these tanks were removed, and further provides that “[t]hese 27 year old steel tanks were pitted with corrosion and had holes up to one inch in diameter in the upper and lower surfaces. The piping on Tank 2 had holes on the lower surface.” Dow’s Ex. 72 at 12, 6. The report describes the tanks as being “pitted with corrosion.” This evidence supports the inference that the holes developed gradually over a long period of time; not suddenly or abruptly. Dow also claims that unspecified spills at the Monahans’ acid plant fall within the purview of the “sudden and accidental” exception to the pollution exclusion. Dow provides no evidence (1) identifying specific spills; (2) demonstrating that they were different in kind and thus could be considered separate from the ongoing, typical polluting events occurring at Monahans’ acid plant as part of its routine operations, or (3) showing how these unspecified spills were “sudden” and “accidental” as those terms have been defined under Michigan law. This is just the sort of rank speculation and conjecture the Sixth Circuit found insufficient to withstand summary judgment in Harrow, 64 F.3d at 1020. Accordingly, Insurers are entitled to summary judgment here as well. B. Loss-In-Progress/ Known Loss Doctrines Travelers/Aetna’s (“Insurers”) motion here asserts that Dow knew of a loss in progress at two of the Final Sites — Hartley & Harley and PPI — when it purchased some policies thus barring indemnification coverage under those policies. Dow’s cross-motion asserts that (1) the Michigan Supreme Court would not adopt the loss-in-progress doctrine in this context; and (2) the doctrine, if adopted, would not bar coverage here. The relevant policy language promises that the insurer will “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages” because of personal injury or property damage. Dow Resp., Ex. 3. Dow correctly frames, the critical issue under the loss-in-progress doctrine: Did Dow buy the subject policies knowing of the loss for which it now seeks coverage? The difficult question is “what precisely has to have been ‘known’ prior to a liability policy’s inception date for purposes of precluding coverage under general insurance principles.” UTI Corp. v. Fireman’s Fund Ins. Co., 896 F.Supp. 362, 377 (D.N.J.1995). Insurers and Dow come up with opposite answers to the core question by defining the doctrine and the relevant loss differently. ■ Insurers assert that the Michigan courts would recognize a version of the doctrine that uses an objective standard thus barring indemnification if Dow knew or should have known that the underlying property damage—contamination Dow ultimately remedied' and seeks coverage for here—was occurring before Dow purchased the subject policies. Insurers’ analysis, with its use of an objective standard, widens the scope of the loss-in-progress doctrine and carries with it the danger of barring coverage for known risks as opposed to known losses. Dow, on the other hand, promotes a very narrow application of the doctrine. Dow argues that, if the Michigan Supreme Court were to adopt the doctrine in the context of an environmental insurance dispute, it would recognize a version of the doctrine more akin to that used in California and New Jersey; i.e., coverage will.be barred only if, at the time the policy is purchased, the insured: (1) has subjective knowledge of the specific contamination it subsequently remediated and for which it now seeks coverage; and (2) knows it will be held legally responsible for damage arising from that contamination. See Pittston Co. Ultramar America Ltd. v. Allianz Ins. Co., 124 F.3d 508 (3rd Cir.1997); Montrose Chem. Corp. of Cal. v. Admiral Ins. Co., 10 Cal.4th 645, 42 Cal.Rptr.2d 324, 913 P.2d 878, 906 (1995) (en banc). Dow’s version of the doctrine distinguishes between first party insurance policies and third party liability policies and recognizes that in the third party situation, such as that presented here, the relevant loss is not the injury or property damage itself, “but rather the company’s legal liability arising therefrom.” UTI Corp. ., 896 F.Supp. at 377. Under this version, the doctrine will bar coverage only when the insured’s liability becomes a legal certainty. Prior to that time, it recognizes the insured’s loss as only a contingency and thus an insurable risk. Subjective knowledge of the alleged property damage is required because the doctrine is designed to prevent insureds from fraudulently obtaining insurance to cover losses that are not only certain but are also known to the insured. Dow urges the Court to recognize this version of the doctrine and argues that, because it did not know of the alleged property damage or its legal liability before it purchased the subject policies, Insurers cannot avoid their contractual obligations to indemnify Dow for its losses at these two sites. Both Insurers and Dow push for an application of the loss-in-progress doctrine that cannot be reconciled with that recognized by the Sixth Circuit in Inland Waters Pollution Control, Inc. v. Nat’l Union Fire Ins. Co., 997 F.2d 172 (6th Cir.1993) (Inland Waters II). The Inland Waters II court predicted that the Michigan Supreme Court would adopt a version of the loss-in-progress doctrine that is neither as broad as-Travelers would have this Court believe nor as narrow as Dow construes it. The Michigan Court of Appeals, in South Macomb, recently applied the Inland Waters II court’s version of the loss-in-progress doctrine in an environmental insurance dispute. It observed that the doctrine “has limited force” and applies only if, prior to the time the insured purchased the subject policy: (1) the loss at issue had already occurred; and (2) the insured had the requisite foreknowledge; i.e., the insured “must have been aware of, at a minimum, an immediate threat of injury to persons or property.” 225 Mich.App. 635, 572 N.W.2d 686, 705. Inland Waters II identifies the alleged property damage that the insured is later held responsible for as the relevant loss; not the insured’s legal liability arising therefrom. 997 F.2d at 179. 1. The Known Loss and Loss-in-Progress Doctrines As the Michigan Supreme Court observed in Ame