Full opinion text
OPINION AND ORDER WILLIAM E. SMITH, District Judge. In this diversity action, Emhart Industries, Inc. (“Emhart”) seeks a defense and indemnity from several of its insurance carriers related to the remediation of environmental contamination at the Centredale Manor Superfund Site (the “Superfund Site” or “Site”) in North Providence, Rhode Island. All six insurers named in this action have at some point refused to defend or indemnify Emhart under one or more applicable insurance policies. Three of them, Home Insurance Company, Liberty Mutual Insurance Company, and United States Fire Company, were dismissed before trial for one reason or another. The other three, Century Indemnity Company (“Century”), OneBeacon America Insurance Company (“OneBeacon”), and North River Insurance Company (“North River”), proceeded to trial, ultimately obtaining a favorable jury verdict on their respective duties to indemnify. The principal players at this stage of the proceedings are Emhart and Century; OneBeacon and North River play only minor roles in this insurance drama. This opinion addresses various pre- and post-trial motions involving primarily the carriers’ obligation to defend Emhart under three “occurrence” policies issued to Emhart’s predecessor in the late 1960s. Together, these policies provide three layers of coverage for the period in question, ranging from general liability to excess umbrella, with a limit of $5.1 million. For all the reasons that follow, Emhart’s Renewed Motion for Judgment as a Matter of Law Regarding the Duty to Defend under the Century Primary Policy (the latest embodiment of an argument Emhart has been making for some time) is GRANTED; this ruling applies to the Century Excess Policy as well, but not the OneBeacon Umbrella Policy (or, because of Emhart’s decision not to pursue the matter, the North River Policy). The Court also finds that Century breached its duty to defend Emhart under both of its policies, and fixes damages in the manner prescribed below. All of Emhart’s remaining motions are DENIED. 1. BACKGROUND The Superfund Site, which totals approximately ten acres, occupies two parcels of land on Smith Street in North Providence. On the western boundary, the Woonasquatucket River flows and extends south to a ten-year floodplain and, ultimately, the Allendale Dam. On the eastern boundary, there is a drainage swa-le (or “tailrace”) that empties into a wooded wetland to the south. From an altitude, these watery boundaries resemble a Mason’s compass, giving the southern portion of the Site a wider base. Presently, the Site boasts two residential buildings; for many years, however, it was dedicated to the manufacture of industrial chemicals, particularly, hexachlorophene, an antiseptic agent used in soaps. As will be explained in greater detail below, Emhart is the corporate successor to the chemical companies that operated at the Site at the time in question. In 1998, the United States Environmental Protection Agency (“EPA”) detected elevated levels of 2, 3, 7, 8-Tetracholordi-benzo-p-Dioxin (“dioxin”) in soil and sediments at the Site, as well as in the further reaches of the Woonasquatucket River. Even at very low levels, Dioxin poses significant risks to human and ecological health. On June 17, 1999, the EPA issued a request for information to Emhart’s parent corporation, Black & Decker, pursuant to Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). See 42 U.S.C. §§ 9601-9675. Emhart responded with information about its relationship to several chemical companies formerly operating at the Site, including Crown Metro, Inc. (“Crown Metro”). Based in part on this information, the EPA sent Emhart a Notice of Potential Liability (the “PRP Letter”) on February 28, 2000. The PRP Letter informed Emhart that, under CERCLA § 107(a), it was a potentially responsible party (“PRP”) based on its status as “a successor to the liability of a chemical company which operated at the Site.” The PRP Letter also invited Emhart to participate in the clean-up activities at the Site. Shortly thereafter, on April 12, 2000, the EPA issued a Unilateral Administrative Order for Removal Action (the “First Administrative Order”), which identified certain time-critical removal actions that Emhart was required to undertake. Among other things, the First Administrative Order made a finding of fact that “[hjazardous substances [ie., dioxin] were disposed of at the Site as part of the former operations of several chemical companies,” and observed that “Emhart is ... a successor to liability of several chemical companies which operated at the Site from approximately 1943 to approximately 1971.” Almost immediately, Emhart began a dialog with the carriers that, as far as it could ascertain, had provided insurance coverage to one or more of its predecessor chemical companies. Although the full extent of that dialog is unclear, it appears that Emhart did not have a great deal of success convincing them to take up the defense. For example, Emhart’s investigation into the extent of its insurance coverage revealed an Excess Blanket Catastrophe Liability Policy XBC 46961 (the “Excess Policy”) that INA (now Century) issued to Crown Metro (now Emhart) at some point in the late 1960s. The Excess Policy provided coverage from December 1, 1968, to February 15, 1970, with a $1 million limit of liability and a deductible equal to the (unidentified) “Underlying Insurance.” Emhart forwarded Century the Excess Policy as an attachment to a November 22, 2000 letter, along with the PRP Letter and the First Administrative Order. In the letter, Emhart demanded that Century provide it with a defense in the administrative action and pay the EPA (or indemnify Emhart) for remediation activities. Also, Emhart asked Century to “immediately conduct a review of your records regarding this confirmed coverage and any additional insurance coverage INA provided to [Crown Metro],” with the understanding that its demand for a defense/coverage would extend to “any other policies your investigation identifies.” Century’s claims representative, Alexandra Zajac, responded to Emhart’s demand on December 12, 2000. In her letter, Zajac advised Emhart that the Excess Policy did not provide coverage for its claim because Emhart was neither a named insured nor a corporate successor to Crown Metro. Emhart replied on January 3, 2001, urging Century to reconsider its position on successorship and reminding Century that, in the November 22, 2000 letter, it had requested an investigation into the “ ‘confirmed coverage and any additional insurance coverage’ INA provided to Crown Metro.” (Emphasis in original.) On January 11, 2001, Zajac told Emhart that, upon reevaluation, Century agreed that Emhart may have succeeded to Crown Metro’s insurance policies, but that the Excess Policy provides coverage for liabilities in excess of primary and/or underlying limits of liability. If you wish to pursue coverage under this policy, you must provide proof that all applicable primary and/or underlying limits have been completely and properly exhausted. At this time, we have no information to indicate that underlying coverage has been exhausted or that this claim will reach our layer of insurance. Therefore, notwithstanding the pollution exclusion in the policy, we are not presently obligated either to provide a defense or to indemnify Em-hart in this matter. Although not referenced in the January 11, 2001 letter, the record reveals that Century had initiated a search for additional Crown Metro policies, but had failed to find any. On January 25, 2002, Emhart brought the instant action against Century and the other named defendants. For reasons that are not entirely clear, on August 29, 2002, Zajac requested a second search for additional policies that INA had issued to Crown Metro. Four months later, the search generated a General Liability-Automobile Policy GAL 36597 (the “Primary Policy”) with a coverage period from February 15, 1969, to February 15, 1970, and a $100,000 limit of liability. Although there is no record of transmittal, it appears that the Primary Policy was forwarded (to Zajac, presumably) on January 7, 2003. However, Zajac did not see the Primary Policy until July 2, 2003, when she happened upon it while reviewing the case file. Zajac immediately faxed a copy of the Primary Policy to Century’s outside counsel, who, eight days later, forwarded it to Emhart. Several months later, after Emhart reminded Century that claims under “any other policies your investigation identifies” were still outstanding, Century denied coverage under the Primary Policy. The basis for the denial, as Zajae’s January 29, 2004 letter makes clear, was a familiar one: Emhart was not a named insured and had not proven successorship. On February 25, 2004, Century filed a counterclaim against Emhart, seeking a declaratory judgment that it did not have a duty to defend or indemnify Emhart under the Primary Policy. Thereafter, Emhart filed a response and a counterclaim-in-reply, which sought to establish those duties and to show that they had been breached. On October 19, 2006, after a six-week jury trial on the issue of indemnity, the jury found in favor of Century and the remaining insurers. Specifically, the jury found, in response to a special interrogatory, that dioxin contamination was not reasonably discoverable during the applicable policy periods. On May 1, 2007, the Court, dealing with old business, issued an order finding, among other things, that Century had a duty to defend Emhart under both the Primary Policy and the Excess Policy. An evidentiary hearing was held in June and July 2007 to determine whether Century had breached that duty and, if so, to ascertain the extent of damages. This opinion provides the reasoning behind the May 1, 2007 order, rules on the issues presented in the evidentiary hearing, addresses Emhart’s post-trial motions on indemnity, and enters judgment accordingly. II. DISCUSSION This discussion is divided into three parts, corresponding with distinct phases of this litigation. Concepts rather than chronology determine priority. A. The Duty to Defend 1. Corporate Successorship. For this threshold issue, Emhart contends that, through a long and complicated transactional history (the great majority of which need not be recounted here), it succeeded to Crown Metro’s insurance policies. Century does not dispute Emhart’s timeline, or the general proposition that a successor corporation inherits the rights and benefits of a predecessor corporation’s “occurrence” policies. See, e.g., Imperial Enters., Inc. v. Fireman’s Fund Ins. Co., 535 F.2d 287, 292-93 (5th Cir.1976) (holding that a surviving corporation to a statutory merger succeeded to the benefits of the non-surviving corporation’s occurrence policy, which contained a non-assignment clause and did not list the surviving corporation as a named insured); Brunswick Corp. v. St. Paul Fire & Marine Ins. Co., 509 F.Supp. 750, 752-53 (E.D.Pa.1981) (similar); Paxton & Vierling Steel Co. v. Great Am. Ins. Co., 497 F.Supp. 573, 578-80 (D.Neb.1980) (similar); cf. Textron, Inc. v. Aetna Cas. & Sur. Co., 638 A.2d 537, 540-43 (R.I.1994) (holding that an acquiring corporation’s occurrence policies did not cover the environmental damage that an acquired corporation caused prior to the acquisition). However, Century, putting a new twist on an old argument, posits that Emhart did not inherit the insurance policies at issue in this case. Century observes that, in 1976, Crown Metro — at that point a subsidiary of USM Corporation (“USM”), which eventually merged into modern-day Emhart — changed its name to Bostik South, Inc. (“Bostik South”). A year later, Bostik South was liquidated and all of its assets and liabilities were distributed to its parent, USM. Then, in 1980, USM sold certain of Bostik South’s former assets to Bengal Corporation (“Bengal”), which, Century claims, succeeded to Crown Metro’s insurance policies. To support its transactional rendition, Century points to § 3(2) of the Purchase and Sale Agreement (the “Agreement”) between USM and Bengal. Section 3(2), which describes the assets being transferred, includes “ex-ecutory contracts.” Century argues that, because insurance policies are executory in nature, the term “executory contracts” in § 3(2) includes the insurance policies issued to Crown Metro, and, therefore, USM ceded those policies to Bengal in 1980. Subsequent language in the Agreement supports this interpretation, Century continues, particularly § 7(B)(3), which provides that USM (and thus Emhart) would retain liability associated with “[a]ny violation of laws, rules or regulations including, without limitation, EPA and OSHA regulations (and any other governmental agency) to the extent that such violations relate only to the time prior to [1980],” while Bengal would assume liability for “any violations occurring after [1980] or based on facts or condition which existed prior to [1980] but which continue thereafter.” Under Rhode Island law, which governs the Century and OneBeaeon insurance policies, “the insured seeking to establish coverage bears the burden of proving a prima facie case, including but not limited to the existence and validity of a policy.” Gen. Accident Ins. Co. of Am. v. Am. Nat’l Fireproofing, Inc., 716 A.2d 751, 757 (R.I.1998). After the insured meets this burden, “[t]he insurer then bears the burden of proving the applicability of policy exclusions and limitations in order to avoid an adverse judgment.” Id. Century’s strained interpretation of the Agreement does not disturb Emhart’s supportable account of the meanderings of Crown Metro’s occurrence policies. As a preliminary matter, it is doubtful that an occurrence policy is “executory” in the sense advocated by Century simply because an insurer is subject to long-term “tail” exposure after the policy period has expired. See, e.g., Textron, Inc. v. Liberty Mut. Ins. Co., 639 A.2d 1358, 1361-62 nn. 1, 2 (R.I.1994) (explaining that “tail” coverage is a distinguishing feature of occurrence policies, and one reason why premiums for occurrence policies are higher than, say, claims-made policies, which extinguish never-ending-tail liability); DiLuglio v. New England Ins. Co., 959 F.2d 355, 358 (1st Cir.1992) (same). The surprisingly small amount of authority on the subject, limited primarily to the bankruptcy context, suggests that an occurrence policy is not an executory contract, at least, as in the present case, after premiums have been paid. See, e.g., Am. Safety Indemn. Co. v. Vanderveer Estates Holding, LLC (In re Vanderveer Estates Holding, LLC), 328 B.R. 18, 26 (Bankr.E.D.N.Y.2005) (“It is well established that insurance policies for which the policy periods have expired and the premium has been paid are not executory contracts, despite continuing obligations on the part of the insured” because “the failure of the insured to perform those continuing obligations would not excuse the insurer from being required to perform.”); Vern Countryman, Executory Contracts in Bankruptcy, Part I, 57 Minn. L.Rev. 439, 460 (1973) (providing the working definition of an executory contract within the meaning of the Bankruptcy Code: “a contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other”); see also Kunkel v. Sprague Nat’l Bank, 128 F.3d 636, 642 n. 7 (8th Cir.1997) (holding that a contract for the sale of cattle was not executory merely because one of the parties had not yet fulfilled its payment obligation, when all the acts necessary to give rise to that obligation had been performed). In any event, Century’s argument is beside the point. Viewing the Agreement in its entirety, Haydon v. Stamas, 900 A.2d 1104, 1110 (R.I.2006) (observing that inquiring courts must “view a contract in its entirety, assigning to its terms their plain and ordinary meanings as the manifestation of the parties’ intent”), the phrase “executory contracts” in § 3(2) cannot reasonably be interpreted so encyclopedically as Century proposes. For example, the Agreement does not contain representations about insurance coverage, a schedule of insurance policies, or a requirement that either USM or Bengal notify the insurers of the purported transfer. Their absence is conspicuous, if not determinative, in a document that is alleged to have conveyed occurrence policies with extensive long-term “tail” coverage. Century’s broad reading of the nondescript language in § 7(B)(3)’s division of liability is not a convincing substitute. Without any reasonable indication that USM and Bengal meant to include occurrence policies within the ambit of “executory contracts,” Century has failed to satisfy its burden. 2. The Primary Policy. Turning to center stage, Emhart observes that, under Rhode Island law, an insurer has a duty to defend when the charging documents make allegations that would “potentially” require the insurer to provide for coverage. According to Emhart, because these documents “at least suggest[ ], through implication, that certain contamination at the Centredale Site was discoverable during the policy period,” Century must defend under the Primary Policy. Century argues that the complaining documents do not allege affirmatively that dioxin was discoverable during the policy period, only that “contamination” — not necessarily dioxin — occurred at some point between 1943 and 1971. The implication that dioxin was discoverable in the approximately eleven-month policy period, Century claims, is not a “reasonable possibility.” As a preliminary matter, Century misconstrues the appropriate standard. Rhode Island, like the great majority of jurisdictions, applies the “pleadings test,” Progressive Cas. Ins. Co. v. Narragansett Auto Sales, 764 A.2d 722, 724 (R.I.2001), also known as the “four corners of the complaint” rule, see, e.g., Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 876 A.2d 1139, 1146 (2005); Everson v. Lorenz, 280 Wis.2d 1, 695 N.W.2d 298, 314 (2005); W. Va. Fire & Cas. Co. v. Stanley, 216 W.Va. 40, 602 S.E.2d 483, 498-99 (2004); Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo.2003), or the “comparison test.” See, e.g., Elliott v. Hanover Ins. Co., 711 A.2d 1310, 1312 (Me.1998); Smith v. Nationwide Mut. Fire Ins. Co., 116 N.C.App. 134, 446 S.E.2d 877, 878 (1994). Under the pleadings test, the insurer’s duty to defend is ascertained by laying the complaint “alongside the policy; if the allegations in the complaint fall within the risk insured against in the policy, the insurer is said to be duty-bound to provide a defense for the insured.” Employers’ Fire Ins. Co. v. Beals, 103 R.I. 623, 240 A.2d 397, 402 (1968). Elaborating upon this test, the Beals court said, “in other words, when a complaint contains a statement of facts which bring the case within or potentially within the risk coverage of the policy, the insurer has an unequivocal duty to defend.” Id. at 403 (emphasis supplied). Since Beals, the Rhode Island Supreme Court has consistently applied the potential-for-coverage standard in duty-to-defend cases. See, e.g., Howard v. Guidant Mut. Ins. Group, 785 A.2d 561, 562 (R.I.2001) (indicating that the “potential” for coverage is the standard); Allstate Ins. Co. v. Russo, 641 A.2d 1304, 1306 (R.I.1994) (same); Mellow v. Med. Malpractice Joint Underwriting Assoc. of R.I., 567 A.2d 367, 368 (R.I.1989) (same); Hingham Mut. Fire. Ins. Co. v. Heroux, 549 A.2d 265, 266 (R.I.1988) (same); Flori v. Allstate Ins. Co., 120 R.I. 511, 388 A.2d 25, 26 (1978) (same). The “reasonable possibility” standard that Century trumpets likely comes from confounding language in Nortek, Inc. v. Liberty Mut. Ins. Co., 858 F.Supp. 1231 (D.R.I.1994). In Nortek, a magistrate judge remarked (in an adopted and appended Report and Recommendation) that, under Rhode Island law, the pleadings test requires that “the factual allegations in the complaint raise[ ] the reasonable possibili ty of coverage under the policy.” Nortek, 858 F.Supp. at 1236 (emphasis in original). A footnote purporting to provide authority for this new development cites four Rhode Island cases (all referenced above) that do not support it. See id. at 1236 n. 17 (citing Mellow, Hingham, Flori, and Beals). The only authority cited in footnote seventeen that can explain the presence of the word “reasonable” is Liberty Life Ins. Co. v. Commercial Union Ins. Co., 857 F.2d 945 (4th Cir.1988). However, in Liberty, the Fourth Circuit construed the law of South Carolina, 857 F.2d at 950 n. 8, which, unlike Rhode Island, requires a “reasonable possibility of recovery” in duty-to-defend cases. See Gordon-Gallup Realtors, Inc. v. Cincinnati Ins. Co., 274 S.C. 468, 265 S.E.2d 38, 40 (1980). Despite this controvertible lineage, judges in this district have recited Nortek’s inaccurate language on occasion, inadvertently giving it the imprimatur of the court. See, e.g., Employers Mut. Cas. Co. v. PIC Contractors, Inc., 24 F.Supp.2d 212, 215 (D.R.I.1998); Aetna Cas. & Sur. Co. v. Kelly, 889 F.Supp. 535, 541 (D.R.I.1995). But see O’Donnell v. Twin City Fire Ins. Co., 40 F.Supp.2d 68, 71 (D.R.I.1999) (using “could possibly be covered” as the standard without using the word “reasonable”). To the extent this difference alters the duty-to-defend analysis in the first place, the Court takes this opportunity to recalibrate the case law of this District accordingly. The relevant question then is whether the allegations in the charging documents are potentially within the Primary Policy’s risk of coverage. The charging documents are four separate instruments delivered to Emhart (and then promptly forwarded to Century and company) over a span of months. Two of them have been identified already. The PRP letter claims that Emhart is “a successor to the liability of a chemical company which operated at the Site,” and thus a party potentially responsible for the remedial costs associated with the “release or threat of release” of a cornucopia of hazardous substances, including dioxin. The First Administrative Order makes a finding of fact that “[h]azardous substances [ie., dioxin] were disposed of at the Site as part of the former operations of several chemical companies,” observes that “Em-hart is ... a successor to liability of several chemical companies which operated at the Site from approximately 1943 to approximately 1971,” and directs Emhart to perform certain remedial tasks. The two remaining instruments supplemented the First Administrative Order, but do not disclose much if any novel information. The Second Administrative Order for Removal Action (the “Second Administrative Order”), issued on March 26, 2001, focuses mainly on downstream remedial activities. In pertinent part, it states that “[ejvidence suggests that the operations of the chemical companies and the drum reconditioning facility at the Site resulted in releases or threats of releases of hazardous substances at the Site,” and concludes that Emhart “is a liable party” under CERC-LA. The Third Administrative Order for Removal Action (the “Third Administrative Order”), issued over two years later, addresses remediation at the tailrace. Its relevant sections simply reiterate the findings and conclusions of the Second Administrative Order. The Primary Policy provides coverage for an “occurrence,” which is defined as “an accident, including injurious exposure to conditions, which results, during the policy period, in property damage neither expected nor intended from the standpoint of the insured.” (Emphasis supplied.) The latter underscored phrase precludes coverage for property damage that Em-hart intended to cause or expected to be caused; in other words, environmental contamination that Emhart knew about and that was not accidental. The former underscored phrase, by operation of Rhode Island law, precludes coverage for property damage, even if accidental, that was not discovered, did not manifest itself, or was not discoverable in the exercise of reasonable diligence during the policy period; here, between February 15, 1969 and January 1,1970. See Textron-Wheatfield, 754 A.2d at 745-46; Textron-Gastonia, 723 A.2d at 1144; CPC, 668 A.2d at 649. It is undisputed that property damage was not discovered and did not manifest itself until long after the Primary Policy had expired; therefore, coverage would trigger, if at all, only under the discoverability prong. As applied here, discoverability has three elements: (1) that environmental contamination took place between February 1969 and January 1970; (2) that it was capable of being detected at the Site at that time; and (3) that Crown Metro had a reason to test for it at the Site at that time. See Textron-Wheatfield, 754 A.2d at 745. Of course, as Century points out, the charging documents are silent with respect to whether dioxin was discoverable at the Site in 1969; it is, therefore, unclear from the face of the documents whether the alleged contamination was caused by an “occurrence.” But under Rhode Island law, neutral or ambiguous allegations do not foreclose an insurer’s duty to defend. In Flori, the Rhode Island Supreme Court considered whether an insurer had a duty to defend its insured even though the complaint failed to allege facts necessary to determine whether a policy exclusion applied. Flori, 388 A.2d at 27. There, a homeowner hired a general contractor to renovate a downstairs area for occupancy. The general contractor, in turn, subcontracted with the insured to perform foundation and concrete work. When the basement flooded, the homeowner sued the general contractor and the insured for negligently performing their work. The insured requested a defense, but the insurer refused based on an exclusion for “completed operations” and the fact that the complaint did not specify whether the alleged negligence occurred before or after the work was “deemed completed” under the policy. Acknowledging that “[t]he pleadings ... leave in doubt whether a state of facts exists that will render inapplicable the completed operations exclusion,” the court nevertheless required the insurer to defend: “Under our rule that doubt must be resolved against [the insurer].” Id.; see also Shelby, 767 A.2d at 76-77 (holding that the possibility that & force majeure caused the collapse of a structure did not insulate the insurer from its duty to defend an insured under a policy that limited coverage to the insured’s negligent performance); PIC Contractors, 24 F.Supp.2d at 216-17 (refusing to consider when plaintiffs were diagnosed with illness because the complaint did not allege the date of the diagnosis, which was disputed in any event); Providence Journal Co. v. Travelers Indemn. Co., 938 F.Supp. 1066, 1074, 1072 (D.R.I.1996) (“The court must resolve any uncertainty as to the adequacy of the pleadings in this respect in favor of the insured.”). That Emhart has shown a potential for coverage in this case is most convincingly demonstrated by Century’s failure to establish the absence of any such potential. See Montrose Chem. Corp. v. Superior Court, 6 Cal.4th 287, 24 Cal.Rptr.2d 467, 861 P.2d 1153, 1161 (1993) (en banc) (rejected a similar plea for a “reasonable possibility” standard, and holding that “the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential. In other words, the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot.”) (emphasis in original); see also PIC Contractors, 24 F.Supp.2d at 216-17 (holding that a duty to defend lies where pleadings did not “exclude the possibility” that the policies triggered). First off, Century’s argument about the specificity of the alleged “contamination” is mistaken; the charging documents clearly allege that dioxin, among several other noxious compounds, was responsible for the contamination at the Site. That aside, assuming arguendo that the allegations in the charging documents do not provide a “reasonable possibility” of coverage, it is something else entirely to say that they do not provide the potential for coverage. To be sure, the policy period is a relatively small speck on the continuum of contamination alleged by the EPA. Whether coverage triggered under the Primary Policy, therefore, is unclear (and perhaps remote) from the perspective that the charging documents provide. But there’s the rub, for Rhode Island precedents demand that, to avoid its duty to defend, Century must confute any potential for coverage, however remote. See Flori, 388 A.2d at 26; Beals, 240 A.2d at 403; see also Montrose, 24 Cal.Rptr.2d 467, 861 P.2d at 1156 (requiring an insurer to defend á CERCLA action when the insurer could not show that the underlying claim fell outside of the policy coverage, even though the allegations of the charging documents were “neutral”). Viewed in this manner, Century’s statement that the charging documents are defective because they indirectly rather than affirmatively allege coverage is more of a concession than a criticism. Century responds, and Emhart vehemently denies, that the Court should consult “extrinsic facts” before it decides Century’s defense obligations. Century notes that other jurisdictions have allowed for such consultation when it is not entirely clear from the charging documents whether a particular policy would provide coverage, and when the underlying litigation would not resolve the coverage dispute. These requirements are satisfied in the present case, Century explains, because, under CERCLA, Emhart (as the successor to a chemical company that operated on the Site) is strictly liable for the contamination on the Site and the costs associated with cleaning it up. See 42 U.S.C. § 9607(a)(2). As a consequence of CERC-LA’s strict liability regime, the EPA need not allege in the charging documents or prove in an underlying administrative action that dioxin was discoverable at the Site during the policy period. Thus, Century concludes that extrinsic evidence must be considered in order to have a full and accurate picture of whether it must defend Emhart. Without having addressed this precise issue, Rhode Island courts generally (with one narrow exception) condemn the use of extrinsic facts in determining the scope of an insurer’s duty to defend. See, e.g., Beals, 240 A.2d at 399; see also O’Donnell, 40 F.Supp.2d at 71 (“The insurer cannot rely on facts not asserted in the complaint to avoid its duty to defend.”). The seminal case in this regard is Beals, which involved a romp of two third-grade students, one of whom, for some unknown reason, struck the other in the eye with a lead pencil. Beals, 240 A.2d at 399. The insurer fired the first salvo by seeking a declaratory judgment that it was not required to defend or indemnify its insured (the pencil-wielding pupil) because the act was intentional. A couple months later, the injured student and his parents brought a civil action against the insured alleging negligence. Applying the pleadings test, the Rhode Island Supreme Court held that the insurer was obligated to defend, even though it was unclear whether the act was intentional (and thus excluded from coverage) or unintentional (and thus within the risk of coverage). In so holding, the court propounded three principles to govern an insurer’s duty to defend in Rhode Island. First, “the duty to defend is broader in its scope than the duty of an insurer to indemnify.” Id. at 403; see also Mellow, 567 A.2d at 368. Second, and flowing from the first principle, an insurer’s duty to defend exists, if at all, “regardless of the actual details of the injury or the ultimate grounds on which the insured’s liability to the injured party may be predicated.” Beals, 240 A.2d at 402 (citing 7A Apple-man, Insurance Law and Practice § 4683, p. 436); see also Flori, 388 A.2d at 26 (“irrespective of whether the plaintiffs in the tort action can or will ultimately prevail”). This is related to the widely-recognized rule, observed in Rhode Island, see Sanzi v. Shetty, 864 A.2d 614, 618 (R.I.2005), that “claims stated in the complaint must be taken ‘as pleaded,’ even if they are demonstrably groundless, false or fraudulent.” See 1 Barry R. Ostrager and Thomas R. Newman, Handbook on Insurance Coverage Disputes § 5.02[a] at 221 (13th ed.2006). Third, “any doubts as to the adequacy of the pleadings to encompass an occurrence within the coverage of the policy are resolved against the insurer and in favor of its insured.” Beals, 240 A.2d at 403; see also Flori, 388 A.2d at 27. The authority Century offers as evidence to support the abrogation of these principles is unpersuasive. Not one of Century’s cases involve an insurer’s duty to defend an administrative action under CERCLA, or even a claim in a more traditional proceeding with comparable attributes (i.e., strict liability). See Delta Airlines v. State Farm Fire & Cas. Co., 96 F.3d 1451 (9th Cir.1996) (unpublished) (unfair competition and commercial disparagement); W. Heritage Ins. Co. v. River Entm’t, 998 F.2d 311 (5th Cir.1993) (negligent operation of a motor vehicle); Millers Mut. Ins. Assoc. of Ill. v. Ainsworth Seed Co., 194 Ill.App.3d 888, 141 Ill.Dec. 886, 552 N.E.2d 254 (1989) (negligent installation of machinery and equipment); Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 267 A.2d 7 (1970) (negligent infliction of shotgun wounds). These cases fade in the light of clearly-established Rhode Island precedent. For instance, Delta’s nonbinding prediction that “the Alaska Supreme Court would follow sound authority allowing an insurer to rely on extrinsic facts to prove that coverage is unavailable when the complaint is silent as to the existence of those facts,” 96 F.3d 1451, 1996 WL 511575, *1 (emphasis in original), directly conflicts with Flori, 388 A.2d at 27. So too does the Fifth Circuit’s interpretation of Texas law in W. Heritage: “when the petition does not contain sufficient facts to enable the court to determine if coverage exists, it is proper to look to extrinsic evidence in order to adequately address the issue.” 998 F.2d at 313. The Millers Mut. opinion, perhaps the least helpful of all, considered extrinsic facts without explaining why it had departed from the rule the opinion itself recognized as one of general application; it simply found a previous opinion “persuasive” on that point. 141 Ill.Dec. 886, 552 N.E.2d at 256. Century’s reliance on Burd is similarly misplaced. The insurance dispute in Burd had its genesis in a shooting incident that led to the conviction of the insured for assault and battery. Burd, 267 A.2d at 8-9. The victim then sued the insured for damages, alleging both intentional and unintentional torts. The insured in turn sued the insurer when it refused to defend the civil suit on the ground that the policy excluded coverage of intentional bodily injury. The New Jersey Supreme Court held that a conflict of interest obviated the insurer’s duty to defend because it was unclear whether the ultimate grounds for recovery (if any) would be based on negligence (and not on an intentional tort, which the policy excluded). The solution: “translate [the insurer’s defense] obligation into one to reimburse the insured if it is later adjudged that the claim was one within the policy covenant to pay.” Id. at 10. This made sense, the New Jersey court explained, because the purpose of the “covenant is to defend suits involving claims which the carrier would have to pay if the claimant prevailed in the action.” Id. Although otherwise sound, Burd strikes a discordant tone with Beals. Both cases addressed similar situations, but competing ideas about an insurer’s duty to defend led to significantly different results. Burd understood the duty to defend to be coextensive with the duty to indemnify (at least in the critical respect discussed). See Burd, 267 A.2d at 10. When a conflict of interest prevented an insurer from controlling its insured’s defense, the court made the duty to defend contingent upon an insurer’s ultimate duty to indemnify. Id. This was not an option in Beals because, under Rhode Island law, the duty to defend is far more expansive than the duty to indemnify — an observation that necessarily implies that an insurer may have to defend a suit that it may not have a coverage obligation in the end. See Beals, 240 A.2d at 403; see also Flori, 388 A.2d at 26; see also 1 Allan D. Windt, Insurance Claims & Disputes: Representation of Insurance Companies & Insureds, § 4:4 (5th ed.2007) (recognizing that many courts have refused to align themselves with the New Jersey Supreme Court’s holding in Burd). From a policy perspective, Century’s call for the use of extrinsic facts appears to be a sensible response to laconic CERCLA complaints and inordinately high costs of defending CERCLA actions. See Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083, 1095-98 (Colo.1991) (Mullarkey, J., dissenting) (arguing that the majority’s rigid adherence to the pleadings test unfairly prejudices insurers in CERCLA actions). But closer examination reveals a cunning attempt at an end run around the duty to defend. The weakness in this play, however, is that Century has not offered a single undisputed extrinsic fact that would eliminate the potential for coverage in this case. See Montrose, 24 Cal.Rptr.2d 467, 861 P.2d at 1156 (“[Wjhere extrinsic evidence establishes that the ultimate question of coverage can be determined as a matter of law on undisputed facts, we see no reason to prevent an insurer from seeking summary adjudication that no potential for liability exists and thus that it has no duty to defend.”); see also Providence Journal, 938 F.Supp. at 1074, 1079 (holding that the insurer did not have a duty to defend or indemnify because the insured admitted that the discharge of liquid waste at the Site was expected or intended from the standpoint of the insured, even though that fact was not alleged in the charging documents). As catalogued in the Court’s pre-trial rulings, several issues of material fact surrounded the discoverability of dioxin at the Site in 1969. The parties dedicated a sizable portion of the ensuing six-week trial to those issues, which the jury ultimately, but not inevitably, resolved in Century’s favor. It is no great surprise then that Century has not identified any extrinsic evidence establishing that “the ultimate question of coverage can be determined as a matter of law on undisputed facts.” Montrose, 24 Cal.Rptr.2d 467, 861 P.2d at 1159; see also City of Johnstown v. Bankers Standard Ins. Co., 877 F.2d 1146, 1149 (2d Cir.1989) (holding that insurers had not met their burden to show that they had no duty to defend a CERCLA action, “whether that duty is measured against the underlying CERCLA complaint alone, or against the record as a whole”) (citations omitted). Allowing Century to obviate its duty to defend based on what were at all relevant times disputed extrinsic facts would effectively erode the distinction, under Rhode Island law, between the duties to defend and indemnify. See Beals, 240 A.2d at 403. This Court is neither willing nor able to permit that. 3. The Excess Policy. The inquiry turns to the Excess Policy, which, although similar to the Primary Policy in scope of coverage, calls for separate analysis because of certain provisions that Century claims anticipate its duty to defend. Century observes that the indemnity obligations of the Excess Policy trigger when Emhart becomes legally obligated to pay damages because of property damage caused by an occurrence and when either (1) a claim falls within the terms of coverage of the Excess Policy but not the Primary Policy or (2) the Primary Policy’s limit of liability is exhausted because of property damage during the policy period. Pointing to the latter requirement, Century argues that Emhart has not proven exhaustion and that a defense under the Excess Policy does not lie until Emhart does so. See, e.g., United States Fidelity & Guar. Co. v. Federated Rural Elec. Ins. Corp., 37 P.3d 828, 833 (Okla.2001) (“Most courts reject the argument ... that if a claim against the insured is for a sum greater than the primary coverage the excess insurer should be required to participate in the defense even though the primary policy is not exhausted.”); 14 Couch on Insurance § 200:45 (Lee R. Russ, et al. eds., 3d ed. 1995) (“On the other hand, it had been held that where a claim which exceeds policy limits has merely been asserted, and the policy limits have not been paid over, an excess insurer is not obligated to defend.”). Emhart, who has the burden to establish exhaustion, see Ins. Co. of N. Am. v. Kayser-Roth, Corp., 770 A.2d 403, 416-17 (R.I.2001), responds that Century must defend under the Excess Policy because the charging documents made it abundantly clear that the costs of complying with the EPA’s remediation requirements would well exceed the Primary Policy’s $100,000 limit of liability. See, e.g., Am. Family Life Assurance Co. v. U.S. Fire Co., 885 F.2d 826, 832 (11th Cir.1989) (holding that excess insurer was obligated to defend once it became clear that the primary policy would not cover the insured’s liability); 14 Couch on Insurance § 200:45 (“Some courts have held that an excess carrier must participate in the defense and share in the cost of defense when it is clear that the potential judgment against the insured many be substantially greater than the amount of the primary policy limits.”). In the absence of specific instructions in the insurance contract, the requirements for exhaustion are, as the authority above suggests, unsettled. Here, the question is almost entirely academic. Any doubt that the possible extent of Emhart’s liability would exceed $100,000 has long since vanished. Prior to trial the parties stipulated that “[tjhrough June 2006, Emhart has incurred costs in the amount of $711,732.00 for performing the work required by the three orders issued by the EPA.” How Century could agree to this stipulation and yet contest exhaustion is beyond comprehension. The obvious implication of the stipulation is that the Primary Policy’s limit of liability was exhausted long ago. In fact, a review of the record reveals that Emhart’s indemnification expenses exceeded $100,000 in October 2001, three months before this lawsuit was filed. See supra Part II.C.2 (discussing the rather unique time line in this case). Accordingly, Century was obliged to defend Emhart under the Excess Policy unless it can show that a limitation or exclusion applied. Century’s argument that Emhart cannot prove exhaustion because Century “has not paid anything to Emhart under the Primary Policy for the underlying claim” is likewise unavailing. In critical respect, the Excess Policy conditions coverage on the event that the “limits of liability of the underlying insurance are exhausted because of ... property damage.” Like the Primary Policy, Century’s duty to defend triggers under the Excess Policy in the event of “any suit against [Emhart] seeking damages on account of ... property damage.” As this language makes plain, the only qualification for exhaustion is “property damage,” which the Excess Policy defines as “injury to or destruction of tangible property.” No reasonable construction of the Excess Policy would require payment from Century’s coffers as a prerequisite for exhaustion. See Am. Commerce Ins. Co. v. Porto, 811 A.2d 1185, 1192 (R.I.2002) (observing that the proper test is “not [ ] what the insurer may have intended the policy to cover or exclude, but rather what an ordinary reader of the policy would have understood the policy’s terms to mean if he or she had read them”). Courts presented with this precise question have concluded similarly. See, e.g., Pac. Employers Ins. Co. v. Servco Pac. Inc., 273 F.Supp.2d 1149, 1154 (D.Haw.2003) (distinguishing between policy language that requires exhaustion because of property damages and exhaustion by payment of judgments and settlements). To hold otherwise would allow Century to avoid liability under the Excess Policy by wrongfully holding out under the Primary Policy. This would be a perversion of the exhaustion requirement. In a final attempt to avoid its duty to defend under the Excess Policy, Century points to the Exclusion of Waste Products Endorsement, which excludes “[i]njury to or destruction of property caused by intentional or willful introduction of waste products, fluids or materials ... irrespective of whether the insured [possessed] knowledge of the harmful effects of such acts.” According to Century, the charging documents allege that Metro-Atlantic caused the contamination at the Site by intentionally introducing waste products. Because the waste-product exclusion explicitly states that the Excess Policy does not apply to such activity, Century contends that it need not provide Emhart with a defense under the Excess Policy. Century has the burden to prove that the waste-product exclusion applies. See Children’s Friend & Serv. v. St. Paul Fire & Marine Ins. Co., 893 A.2d 222, 229 (R.I.2006) (requiring an insurer to prove that a professional services endorsement that was not attached to the policy was properly part of it). As previously discussed, that burden requires Century to show that the charging documents do not provide any potential for coverage in light of the Excess Policy’s exclusionary language. See Flori, 388 A.2d at 26; Beals, 240 A.2d at 403; see also Montrose, 24 Cal.Rptr.2d 467, 861 P.2d at 1156. If Century cannot do so, it must defend Emhart under the Excess Policy. See Porto, 811 A.2d at 1196 (“If the type of injuries suffered are excluded from coverage under the language of the policy, no right to coverage or duty to defend the insured exists.”); see also Providence Journal, 938 F.Supp. at 1074, 1079 (holding that a pollution exclusion barred insurer’s duty to defend and indemnify). Laying the charging documents alongside the circumscribed language of the waste-product exclusion as the pleadings test requires, it becomes apparent that Century has failed to satisfy its burden. The closest language in the charging documents helpful to Century’s position is as follows. The PRP Letter states that the EPA “has documented the release or threatened release of hazardous substances or pollutant or contaminants at the Site.” The First Administrative Order alleges that “[t]he chemical companies [] buried drums and other containers at the Site,” and that “[t]he chemicals manufactured by these companies included hexachlorophene.” The Second and Third Administrative Orders state, in identical language, that “[e]videnee suggests that the operations of the chemical companies and the drum reconditioning facility at the Site resulted in releases and threats of releases of hazardous substances at the Site.” None of these documents allege the intentional or willful introduction of waste products at the Site, see Porto, 811 A.2d at 1196, and Emhart has not conceded that Metro-Atlantic engaged in such conduct, see Providence Journal, 938 F.Supp. at 1079. Neither do these documents allege the unintentional or involuntary introduction of waste products such that would clearly remove Emhart’s claim from the specter of exclusion, but under long-settled Rhode Island law, “doubt must be resolved against [the insurer],” Flori, 388 A.2d at 27, as explained in greater detail above. See also Montrose, 24 Cal.Rptr.2d 467, 861 P.2d at 1156. The Interim Final Remedial Investigation (the “Remedial Investigation”), which Century touts in a supplemental memorandum, contains the same neutral allegations that saturate the charging documents. For example, § 7.1.1, entitled “Primary Sources of Contamination,” is entirely equivocal: Trichlorophenols were shipped to the site, where it is believed that hexachlo-rophene was manufactured in approximately 1965. [Hexachloroxanthene] and dioxin were byproducts of this process. The building where this process is believed to have taken place was located on the east bank of the Woonasquatuck-et River.... Other chemical processes also occurred and could be the source of other contaminants at the site. The following section, entitled “Primary Release and Transport Mechanisms,” is equally speculative: Chemicals were apparently released directly to the ground, buried, and possibly discharged directly to the Woonas-quatucket River.... Discharge of chemicals directly into the river, overland flow of chemicals, and erosion and transport of contaminated source area soils by surface runoff resulted in contamination of surface water and sediment in the adjacent river and ponds and tailrace on the east side of the site. The spatial distributions and concentrations of dioxin (primarily 2, 3, 7, 8-TCDD) and [Hexachloroxanthene] in soil and sediment suggest that these contaminants may have been released to the Woonasquatucket River via the direct discharge of dioxin-bearing waste. Dioxins/furans, PCBs, pesticides and other chemicals also probably migrated to the river and Allendale Pond via surface runoff and erosion of contaminated soils from the source area. An earlier section, purporting to analyze the results of a “forensic review,” conveys the following “conceptual model”: Dioxins (primarily 2, 3, 7, 8-TCDD), fu-rans, and [Hexachloroxanthene] were generated as hexachlorophene byproducts that were discharged directly into the Woonasquatucket River. 2, 3, 7, 8-TCDD and [Hexachloroxanthene] ratios are not constant because of variations in the hexochlorophene production process; however, the co-occurrence of [Hexachloroxanthene] and 2, 3, 7, 8-TCDD above background levels in sediments from Allendale Pond to downstream of Mantón Dam indicates that the contaminants came from the manufacture of hexachlorophene on the [ ] site. These conjectural statements fail even to identify Emhart’s predecessor, let alone accuse it of the intentional or willful introduction of waste products. The application of the pleadings test here may seem unduly burdensome on Century, but Rhode Island precedents are clear. Of course, INA could have chosen to exclude the introduction of waste products generally without qualification. It did not. (In fact, the record shows that INA modified the Excess Policy to incorporate the more narrow waste-product exclusion (Endorsement 6) in place of an absolute pollution exclusion (Endorsement 5) that, all parties agree, would have barred Em-hart’s claims in this case.) As written, the waste-product exclusion does not negate the potential for coverage in this case; Century therefore cannot rely on it to avoid its duty to defend. 4. The Umbrella Policy. Notwithstanding Century’s defense obligations under the Excess Policy, OneBeacon argues that an absolute pollution exclusion obviates its duty to defend Emhart under the Excess Umbrella Policy No. S-16-07084 (the “Umbrella Policy”). First, OneBeacon calls for the reformation of the Umbrella Policy based on a so-called scrivener’s error. The Umbrella Policy provides that it is “subject to all the terms and conditions of Policy No. XBC64674.” As it turns out, Policy XBC 64674 is an expired excess insurance policy that Century issued to Crown Chemical Co. (“Crown Chemical”), Crown Metro’s immediate predecessor. OneBeacon maintains that its underwriter mistakenly identified the expired XBC 64674 policy, and that the parties really intended that the Umbrella Policy would “follow form” to the superceding Excess Policy (XBC 46961, discussed at length above) then in effect. This distinction is important because the expired XBC 64674 policy has no pollution exclusion of any kind; the Excess Policy does. Second, OneBeacon argues that, properly reformed, the Umbrella Policy incorporates an absolute pollution exclusion that unequivocally precludes coverage in this case. OneBeacon observes that, at the time the Umbrella Policy was issued, the Excess Policy contained an absolute pollution exclusion (Endorsement 5); later, the Excess Policy was amended by Endorsement 6, which superceded Endorsement 5 and added a narrower pollution exclusion: the now-familiar waste-product exclusion. However, according to OneBeacon, after the Umbrella Policy issued, it could be modified only by an endorsement to the Umbrella Policy itself, not simply by an endorsement to the Excess Policy. Thus, because Endorsement 6 did not purport to modify the Umbrella Policy, OneBeacon contends that the absolute pollution exclusion of Endorsement 5 applies to bar Emhart’s claims. Generally, to reform a contract, “it must appear by reason of mutual mistake that the parties’ agreement fails in some material respect to reflect correctly their prior understanding.” Yates v. Hill, 761 A.2d 677, 680 (R.I.2000). By definition, “[a] mutual mistake is one common to both parties wherein each labors under a misconception respecting the same terms of the written agreement sought to be [reformed].” Dubreuil v. Allstate Ins. Co., 511 A.2d 300, 302-03 (R.I.1986). Because contract law attaches great weight to the written expression of an agreement, mutuality of mistake must be proved by clear and convincing evidence. Kornstein v. Almac’s, Inc., 98 R.I. 318, 201 A.2d 645, 648-49 (1964); Vanderford v. Kettelle, 75 R.I. 130, 64 A.2d 483, 487 (1949); Restatement (Second) of Contracts § 155 cmt. c. (1981). These requirements apply with equal force to insurance policies. Hopkins v. Equitable Life Assurance Soc’y of the U.S., 107 R.I. 679, 270 A.2d 915, 918 (1970); Ferla v. Commercial Cas. Ins. Co., 74 R.I. 190, 59 A.2d 714, 716 (1948). In recent years, reformation based on a scrivener’s error has not received a great deal of attention in Rhode Island courts, and this writer’s research has revealed no case in this jurisdiction, however outmoded, that has addressed the issue head-on. See Patterson v. Atkinson, 20 R.I. 102, 37 A. 532, 532-33 (1897) (holding that a mortgage was valid even though, on account of a scrivener’s error, it purported to convey the entire property when, in fact, the mortgagor maintained only a half interest in the property and the parties had intended to convey only that half interest); Cannon v. Beaty, 19 R.I. 524, 34 A. 1111, 1111-12 (1896) (refusing to reform a deed that contained a scrivener’s error because a statute precluded the execution of the deed in the first place); Almy v. Daniels, 15 R.I. 312, 4 A. 753, 755 (1886) (declining to consider reformation argument based on a scrivener’s error because the matter was not properly before the court); Diman v. Providence, Warren, & Bristol R.R. Co., 5 R.I. 130, 1858 WL 2576 at *1-2 (R.I. 1858) (holding that an agreement contained in a subscription book could not be reformed when the plaintiff had mistakenly subscribed for double the amount of stock). Emhart uses this dearth of authority as a basis for its argument that there can be no reformation, regardless of OneBeacon’s intentions, without clear and convincing evidence that the insured (as well as the insurer by way of its underwriter’s error) intended for the Umbrella Policy to follow form to the Excess Policy. OneBeacon responds that mutuality of mistake is not necessary where, as here, the mistake is due to the clerical error of the scrivener. The rationale for this departure essentially is that the mistake is mutual in the sense that the scrivener did not properly memorialize or transcribe what either party actually intended. 2 Couch on Insurance § 27:28 (Lee R. Russ, et al. eds., 3d ed.1995); see Nash Finch Co. v. Rubloff Hastings, L.L.C., 341 F.3d 846, 849-50 (8th Cir.2003) (construing Nebraska law); Int’l Union of Elec., Elec., Salaried, Mach. and Furniture Workers, AFL-CIO v. Murata Erie N. Am., Inc., 980 F.2d 889, 907-08 (3d Cir.1992) (construing Pennsylvania law within the context of ERISA); Cincinnati Ins. Co. v. Fred S. Post, Jr., Co., 747 S.W.2d 777, 781-82 (Tenn.1988); Geoghegan v. Dever, 30 Wash.2d 877, 194 P.2d 397, 403 (1948); see also OneBeacon Am. Ins. Co. v. Travelers Indem. Co. of Ill., 465 F.3d 38, 41 (1st Cir.2006) (observing that “ ‘[t]he classic case for reformation’ is when the mutual mistake can be traced to a typo or transcription error”) (quoting E. Allen Farnsworth, Farnsworth on Contracts § 7.5 (2001)). For evidence of the parties’ unitary intention that the Umbrella Policy would follow form to the Excess Policy (as opposed to the expired XBC 64674 policy), OneBeaeon observes that the Umbrella Policy identifies Crown Metro (not Crown Chemical) as the named insured. Also, OneBeacon’s underwriter, Vincent Puccio, testified that it was not his practice to underwrite excess umbrella coverage subject to the terms and conditions of an expired underlying excess policy. Moreover, OneBeaeon posits that, without some specific reason in mind, it would be nonsensical for an insured to procure an additional layer of excess coverage that would not follow form to the existing layer beneath it; here, the Excess Policy. At first blush, OneBeacon’s call for reformation is compelling. But, in the end, reformation would be a pointless remedy under the circumstances of this case. Were the Umbrella Policy to be reformed as requested, OneBeaeon could succeed only if the Court agreed that it should have its cake and eat it too. OneBeaeon argues that Endorsement 6 did not modify the (properly reformed) Umbrella Policy because OneBeaeon did not explicitly consent to it. Here, Onebeacon cannot succeed. If OneBeaeon intended for the Umbrella Policy to follow form to the Excess Policy, it must have been aware that the terms of that policy were subject to change. The applicable provision in the Excess Policy provides that “the terms of this policy [shall not] be waived or changed, except by endorsement issued to form a part of this policy.” The Umbrella Policy could have provided a separate means of modification. For example, a section entitled “Exceptions” states that “[t]his insurance differs from the Policy which it follows in the following particulars,” and goes on to set a different limit of liability and premium. A subcategory entitled “Other” provides an ideal space where OneBeaeon could have addressed its modification concerns. The category is conspicuously left blank. The conclusion to draw from this omission is that OneBeacon set a premium that reflected the risk that an endorsement to the Excess Policy might amplify its scope of coverage (as Endorsement 6 certainly did). The upshot is that, by claiming that the Umbrella Policy followed form to the Excess Policy, OneBeaeon effectively consented to the incorporation of Endorsement 6. See GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 812-13 (6th Cir.1999) (allowing the incorporation into a follow form excess policy of an absolute pollution exclusion that was added to the primary policy after the policy period had ended and that was made retroactive to the issuance of the primary policy); Great Atl. Ins. Co. v. Liberty Mut. Ins. Co., 773 F.2d 976, 978 (8th Cir.1985) (holding that an excess insurer had to follow form to a primary policy that the primary insurer and the insured reformed to include a territorial endorsement to correct a clerical error); Pub. Util. Dist. No. 1 v. Int’l Ins. Co., 124 Wash.2d 789, 881 P.2d 1020, 1027 (1994) (holding that an excess insurer was bound by a retroactive errors-and-omissions endorsement added to the primary policy afterwards). In the last act, however, OneBeacon is saved from Century’s fate by a deus ex machina of sorts: the Umbrella Policy’s exhaustion requirement and the