Full opinion text
OPINION BARRY, District Judge. I. Introduction This action involves an insurance coverage dispute between Beecham, Inc. (“Beecham”) and its insurer, the Continental Insurance Company (“Continental”), with respect to the environmental contamination of a facility in Myerstown, Pennsylvania previously owned by Beecham. Presently before the court are cross-motions for summary judgment for declaratory relief concerning the rights and liabilities under the contracts of insurance entered into by the parties, which motions, almost by definition, raise a plethora of issues. On an initial consideration of the motions but prior to this opinion, the court concluded that with respect to the parties’ dispute as to whether the substantive law of Pennsylvania or New Jersey should be applied to this dispute, New Jersey law would govern. At the time the court made this determination, one of the central issues in this litigation, i.e. the meaning and interpretation to be given the “pollution exclusion” clause in the insurance policies at issue here, was before the Supreme Court of New Jersey in Morton International, Inc. v. General Accident Ins. Co. of America. Accordingly, by letter dated March 5, 1993, the court advised the parties that the choice of law determination had been made, that New Jersey law would be applied, and that the court would await the decision of the Supreme Court in Morton before determining the substantive issues in this litigation. That case now having been decided by the Supreme Court, this court reaffirms its initial conclusion that New Jersey law applies and considers the remaining issues in light of Morton. For the reasons which follow, Continental’s motion for summary judgment will be denied and Beecham’s cross-motion for summary judgment will be granted in part and denied in part. II. Factual and Procedural History A. The Myerstown Site Prior to Beecham’s Ownership The site of the contamination at issue is a 22 acre plant in Myerstown, Pennsylvania owned by Whitmoyer Laboratories, Inc. (“Whitmoyer”), an animal pharmaceutical company founded in 1934. Final Pretrial Order Stipulation of Facts (hereinafter “Stip.”) ¶ 3; Plaintiffs Appendix in Support of Motion for Summary Judgment (hereinafter “PLApp.”) 2 at 1-4; PLApp. 3 at B10361. In 1957, Whitmoyer began producing arsenic-based feed additives for animals. PLApp. 2 at 1-4; Defendant’s Appendix in Support of Motion for Summary Judgment (hereinafter “Def.App.”) 2 at 1-4. In 1964, Whitmoyer was purchased by and became a wholly-owned subsidiary of Rohm & Haas Company. Stip. ¶ 8. Shortly after Rohm & Haas acquired Whitmoyer, arsenic pollution was discovered in the soil and groundwater at the Myerstown plant. PLApp. 2 at 1-6; PLApp. 5 at R00002323; Def.App. 2 at 1-6; Def.App. 3 at R00368. Prior to 1964, Whitmoyer had loaded arsenic waste materials from the production of arsenical onto tanker trucks and transported the materials to an on-site lagoon where they were dumped. Stip. ¶ 6. In addition, as of 1963 the site had a sludge pile approximately 25 feet in diameter consisting of DDAA. Stip. ¶ 7. Following the discovery of arsenic pollution, and under the guidance of Pennsylvania’s Department of Health, Rohm & Haas began a remediation effort at the plant. Stip. ¶ 16. The remediation plan included, among other things, the termination of wastewater disposal in the lagoon and the excavation of lagoon sludges, groundwater pumping and treatment, and the provision of bottled water to the nearby residents with contaminated wells. PLApp. 2 at 1-6; Def. App. 2 at 1-6. Rohm & Haas constructed an internal dike around the building in which arsenic production took place and placed sealing mechanisms on storm drains which flowed into Tulpehocken Creek so that they could be closed in the event of a spill. Dengler Dep., Def.App. 4 at 31; Stip. ¶¶ 5, 18. It constructed, as well, a concrete “vault,” approximately 123 feet long, 83 feet wide, and 12 feet deep into which arsenic contaminated soil, the calcium arsenate from the lagoon, and other materials were placed, sealed, and “entombed.” PLApp. 2 at 1-6; Def.App. 2 at 1-6; Dengler Dep., PLApp. 6 and Def.App. 4 at 38; PLApp. 9 at B10072; Stip. ¶ 19. Monitoring and treatment wells were installed around the plant to facilitate groundwater testing and analysis and to prevent the flow of contaminants off the property. Def.App. 5 at 2; Croesus Dep., PLApp. 8 at 334; PLApp. 9 at B10072. The material in the sludge pile was drummed and stored in a barn near the plant property to be sold for product reclamation. Dengler Dep., Def. App. 4 at 39, 45. In 1976 or 1977, additional arsenic waste was consolidated from all the lagoons into certain “consolidated” lagoons. Def.App. 2 at 1-6; PLApp. 2 at 1-6; PLApp. 7 at B10337-B10338. All of the lagoons were later covered with topsoil and seeded with grass. Id.; Stip. ¶24.- B. Beecham’s Acquisition of Whitmoyer from Rohm & Haas On March 31, 1978, Beecham purchased the stock of Whitmoyer from Rohm & Haas. Certification of Albert J. White, dated February 28, 1982 (hereinafter “White Cert.”) ¶2. Beecham’s purchase of this stock was part of a larger transaction in which Beecham acquired various assets of Rohm & Haas located around the world. Of the total purchase price of $18.5 million, $13.1 million was attributable to the purchase of Whitmoyer’s stock. See Certification of Albert J. White, dated February 28, 1992, Exh. A and PLApp. 20 (hereinafter “Purchase Agreement”) at B10602. As part of the Purchase Agreement, Rohm & Haas warranted that the property sold was in good condition and in compliance with all federal, state, and local laws. White Cert., Exh. A., at 32, 36. Continental points out that this warranty was general in nature and, in any event, could not have taken into consideration the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq., which was not enacted until several year’s after the acquisition. Prior to the Whitmoyer acquisition, Beecham representatives Fred Bledsoe and Robert McEntee were taken on tours of the Myerstown plant and facilities. McEntee Dep., PLApp. 12 at 31; Bledsoe Dep., PLApp. 13 at 36; Ambrogi Dep., PLApp. 4 at 117— 120; King Dep., PLApp. 16 at 22. These tours consisted of walking around the plant site to each of the production areas. King Dep., PLApp. 16 at 24. ' Lloyd Croesus, Whitmoyer’s Safety and Environmental Manager, testified that the subject of arsenic contamination at the plant was raised during a tour with Beecham representatives and that those representatives were informed not only that contamination had occurred prior to Rohm & Haas’ purchase of the plant but that there was still some groundwater and soil arsenic contamination. Croesus Dep., PLApp. 8 at 118-19. In addition, Whitmoyer’s President, William Ambrogi, recalled discussing the history of the contamination problems at the plant “to convince [Beecham and Bledsoe ‘in particular] that ... we were convinced that the problem was solved.” Ambrogi Dep., PLApp. 4 at 117. Continental also cites to a document entitled “Subjects for Discussion with R & H” which lists as a topic “Identity of Current and Potential EPA Problems.” PLApp. 18 at B10483. Beecham attacks the cited portion of Croesus’ testimony because he did not specify to whom at Beecham he spoke concerning the Myerstown facility’s history of contamination. Croesus Dep., Pl.App. 8 at 118-19. Moreover, all four Beecham employees who were substantially involved in the Whitmoyer acquisition, Bledsoe, McEntee, General Counsel, and Secretary Albert White, and Assistant Insurance Manager Paul Pfeffer, have denied that they were told about the arsenic contamination or the remediation efforts undertaken by Rohm & Haas at the Myerstown plant. See Certification of Fred Bledsoe, dated March 25, 1992, ¶¶3-4; Cer-. tification of Robert McEntee, dated March 25, 1992, ¶¶ 2-3; Certification of Albert J. White, Esq., dated March 25,1992, ¶ 5; Certification of Paul Pfeffér, dated March 31, 1992, ¶ 4. In support of its position that Rohm & Haas represented to it that the Myerstown plant had no environmental problems, Beecham points to the testimony of Fred Bledsoe that he was told that the Myerstown site had been inspected and approved by the Pennsylvania Department of Environmental Resources (“PADER”). Bledsoe Dep., Def, App. 51 at 39-41. In addition, Beecham cites to a portion of Bledsoe’s handwritten notes from 1977: “Reported — the Myerstown Penna plant had been inspected by EPA, OSH, etc. — and no problems had been encountered.” Def.App. 6 at B11543; Bledsoe Dep., Pl.Opp.App. 1 at 100. Continental counters that because the notations are from 1977, they are most likely from a preliminary stage of the acquisition talks and likely predate plant tours and other investigations undertaken by Beecham personnel. Beecham also notes that the annual reports of Rohm & Haas for 1976 and 1977 disclose what they term as “less extensive” environmental efforts but fail to make mention of those efforts undertaken at the Myerstown facility. See Def.App. 7 at B04656B; Def.App. 8 at B04700B. Beecham asserts that the deposition testimony of William Ambrogi and Frantz Dengler supports its position that the absence of any reference to remediation efforts at the Myerstown plant is attributable to Rohm & Haas’ belief that remediation had been successfully completed. Ambrogi Dep., Def.App. 9 at 45-47; Dengler Dep., Def.App. 4 at 74. Continental, on the other hand, argues that the testimony cited by Beecham relates only to the groundwater recovery program and that, even then, the program was terminated because it was seen as too costly and futile. Pl.Opp.Br. at 8. Continental claims that, prior to the Whitmoyer acquisition, Beecham had knowledge of the bottled water program instituted by Rohm & Haas. Specifically, Continental points out that the Purchase Agreement refers to, under “Miscellaneous Agreements and Commitments,” the “[v]erbal commitment of Whitmoyer Laboratories, Inc. to supply bottled water to persons near the Myerstown plant whose wells have been contaminated by the presence of arsanilic acid.” Purchase Agreement at 16323. Lloyd Croesus testified that he received a i’equest from Beecham personnel for a list of those persons to whom Whitmoyer was supplying bottled water as a result of arsenic contaminated wells. Croesus Dep., PLApp. at 125. Beecham does not dispute the reference to these verbal commitments in the Purchase Agreement, although White, Beecham’s General Counsel, claims that he did not see a copy of the Purchase Agreement with a reference to bottled water prior to signing the agreement. White admitted, however, that notes on the two pages following the reference to bottled water were in his handwriting. White Dep., PLApp. 15 at 78-81. Beecham does dispute the import to be drawn from Continental’s claim that Beecham nearly scuttled the Whitmoyer purchase as a result of certain ecological problems. While it is undisputed that a September 20, 1977 letter from Beecham’s Bledsoe to Ambrogi indicates that Beecham was not interested in acquiring the Whitmoyer Laboratories’ part of Rohm & Haas’ Animal Health Business, in part because it “believe[d] that potential ecological problems will arise,” Beecham claims that Continental’s use of this statement to support its argument that Beecham was aware of the arsenic contamination at the Myerstown facility is disingenuous. PLApp. 22 at B10464. Indeed, the recipient of Bledsoe’s letter, Ambrogi, testified that the reference to “ecological problems” in the sentence in question was limited to a tank full of waste in Paulsboro, New Jersey. Ambrogi Dep., Def.App. 41 at 123. Beecham urges that the exact opposite inference must be drawn from the statement concerning potential ecological problems: that Beecham’s refusal to complete a deal which included the purchase of a waste tank it considered to be an ecological problem makes Continental’s argument that Beecham bought Whitmoyer with knowledge of the arsenic contamination incredible. Beecham further notes that as a result of this concern, the Paulsboro waste tank was omitted from the Purchase Agreement. Purchase Agreement at B10601. C. The Operation of Whitmoyer under Beecham After Beecham’s acquisition of Whitmoyer, Whitmoyer employees Harold Huffman, Donald King, and Lloyd Croesus continued to work at the plant. King became Operations Manager, to head Whitmoyer’s Myerstown operations; Huffman moved from Area Manager to Plant Manager; and Croesus remained in his former position as Safety and Environmental Manager. Croesus Dep., PL App. 8 at 148-49. Beecham oversaw Whitmoyer operations through the Whitmoyer Operations Committee, which included Beecham employees William Hepburn and Robert Widerkehr. PLApp. 35 at B05824B. The production of products containing arsenic continued at the site throughout the period when Whitmoyer was owned by Beecham. PL Rule 12(G) Statement ¶ 44; Def.Opp.Rule 12(G) Statement ¶ 44; Croesus Dep., PLApp. 8 at 196. Continental asserts that the arsenic contamination problem at the Myerstown plant was evident throughout Beecham’s ownership of Whitmoyer. Throughout that period, i.e. from 1978 to 1982, Whitmoyer continued to supply bottled water to nearby residents whose wells were contaminated. Pl.Rule 12(G) Statement ¶ 37; Def.Opp.Rule 12(G) Statement ¶ 37. Lloyd Croesus testified that he saw cracks in the concrete vault and that he had a conversation with Harold Huffman about the possibility of setting up a monitoring system to determine if waste material was leaking out of the vault. Croesus Dep., PLApp. 8 at 330. Moreover, Whitmoyer employees knew that arsenic was infiltrating the sewer system, suspecting that it was entering the system through cooling tower holding tanks, production facilities, and sink and shower rooms. PLApp. 29 at EP00000490000051. Beecham admits that in July, 1978, the PADER threatened to issue an injunction suspending the Myerstown plant’s operations due to excessive arsenic emissions into the air. PLApp. 37 at B10943. While no injunction was ever issued, Whitmoyer was fined $6,500 in October, 1978 for unauthorized modification of the arsenic waste evaporation system, failure to list all air contaminants, failure to operate the system in accordance with the operation permit, and operation of the system in a manner that caused air pollution. Stip. ¶ 32; PLApp. 38 at B10992-B10995. That same year Whitmoyer also settled a claim with an adjacent land owner concerning crop damage allegedly caused by arsenic pollution. PLApp. 39 at B11015; Def.Opp. Rule 12(G) Statement ¶45; Croesus Dep., PLApp. 8 at 471-72. It is admitted, too, that in 1982 Whitmoyer was fined $3,200 for exceeding the permitted volume discharge level, although the parties dispute the significance of such a violation. Stip. ¶ 34; Pl.Rule 12(G) Statement ¶ 40; Def. Opp.Rule 12(G) Statement ¶40. In 1979, Buckeye Pipeline Company uncovered some arsenical materials during an excavation to repair a pipeline. PLApp. 31 at B12237-B12288. A dump of approximately forty feet by thirty feet by seven feet deep was discovered. Id. Two attorneys employed by Beecham, Robert Frawley and Larry Olon, visited the site and reviewed the situation. Id.; Frawley Dep., PLApp. 32 at 27-30. In an effort to limit its liability from the toxic material that was not properly contained, Beecham authorized approximately $70,000 to clean up the area. PLApp. 31 at B12237-B12238; Croesus Dep., PLApp. 8 at 267. The Whitmoyer Operations Committee also considered whether to remove the waste stored in the concrete vault, opting not to do so. PLApp. 35 at B05829B. WThitmoyer Operations Committee members Anthony Bott and Leroy Kauffman testified that this decision was based on the belief of the committee members that the concrete vault was adequately sealed. Bott Dep., Def.App. 39 at 38; Kauffman Dep., Def.App. 40 at 62. On May 4,1982, Beecham sold Whitmoyer, with the exception of the Affiliated Laboratories division located in Illinois, to Stafford Laboratories, Inc. for $4 million. PLApp. 42 at 2. In February, 1984, the United States Environmental Protection Agency (“EPA”) found elevated levels of arsenic in the groundwater and sediment. The site was proposed for the National Priorities List of potentially hazardous waste sites, pursuant to CERCLA section 105(8)(B), 42 U.S.C. § 9605(8)(B), in October, 1984 and finalized on the list in June, 1986. PLApp. 2 at 1-7; Def.App. 2 at 1-7. In April, 1986, Beecham was notified by the PADER that it was a potentially responsible party (“PRP”) with respect to contamination at the Myerstown site. Def.App. 20. Shortly thereafter, Beecham notified Continental of its claim. Def. App. 20. D. Beecham’s Contracts of Insurance with Continental Continental first issued Comprehensive General Liability (“CGL”) policies to Beecham in 1976 and issued subsequent policies providing coverage for the years through 1985. Stip. ¶ 38. In 1978, Whitmoyer was added as an additional insured under the CGL policies. Stip. ¶ 41. Under the terms of these policies, Continental agreed to pay “all sums which the insured shall become legally obligated to pay as damages because of ... property damage caused by an occurrence” during the policy period. An “occurrence” is defined as “an accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured.” The policies also contain a “pollution exclusion” clause which states that: This insurance does not apply ... (f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals or pollutants into or upon land, the atmosphere, or any water course or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. Stip. ¶ 38. The policies from 1977 to 1986, and the 1976 policy as of August 24, 1976, contain an endorsement entitled “Knowledge of Occurrence” which states that: “It is agreed that in the event of any occurrence written notice shall be given [sic] by or on behalf of the insured to the company or any of its authorized agents as soon as practicable after knowledge thereof by the insurance manager, any corporate attorney or officer of the corporation.” Stip. ¶39. In addition, the policies covering 1976 to 1986 contain an endorsement stating that: “It is agreed that failure of the named insured to disclose all hazards existing at the effective date of the policy shall not prejudice the insured with respect to the insurance afforded by this policy if such failure is not intentional.” Stip. ¶ 53. In connection with the policy in effect from April 1, 1977 to April 1, 1978, policy number L1416312, Continental issued a Retrospective Agreement according to which policy premiums were calculated. Stip. ¶ 44. This document allowed Continental to impose retrospective premiums for losses covered by the subject policy. Stip. ¶ 45. III. Choice of Law As an initial matter, the court must determine which state’s substantive law is to be applied to the dispute concerning the interpretation of the contract of insurance between Continental and Beecham. Because this action was brought initially in the Middle District of Pennsylvania and transferred to this court pursuant to 28 U.S.C. § 1401(a), see Continental Ins. Co. v. Beecham, Inc., No. 87-1275 (M.D.Pa. February 25, 1988) (report and recommendation of the magistrate judge) (Def.App. 22); Continental Ins. Co. v. Beecham, Inc., No. 87-1275, 1988 WL 168564 (M.D.Pa. June 24, 1988) (memorandum opinion and order of the district judge adopting the report and recommendation of the magistrate judge) (Def.App. 23), the court must apply the choice of law rules that the transferor court, the Middle District of Pennsylvania, would have applied. See Ferens v. John Deere Co., 494 U.S. 516, 531, 110 S.Ct. 1274, 1283, 108 L.Ed.2d 443 (1990); Van Dusen v. Barruck, 376 U.S. 612, 639, 84 S.Ct. 805, 820, 11 L.Ed.2d 945 (1964). Because the Middle District of Pennsylvania would have been bound, as are all federal courts sitting in diversity, to apply the choice of law rules of the state in which it is located, this court must apply the choice of law rules of Pennsylvania. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Shuder v. McDonald’s Corp., 859 F.2d 266, 269 (3d Cir.1988). Continental argues in favor of the application of Pennsylvania substantive law, while Beecham contends that New Jersey law should govern. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 21, 203 A.2d 796 (1964), the Supreme Court of Pennsylvania abandoned its outmoded strict lex loci delicti rule “in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” See also Melville v. American Home Assur. Co., 584 F.2d 1306, 1311 (3d Cir.1978) (holding that Pennsylvania would extend the Griffith approach to contract actions); United Brass Works, Inc. v. American Guarantee and Liability Ins. Co., 819 F.Supp. 465, 468 (W.D.Pa.1992). Pennsylvania’s current rule has been interpreted as encompassing both the significant contact analysis of the Restatement (Second) of Conflict of Laws and an analysis of the interests and policies asserted by each jurisdiction. Compagnie des Bauxites de Guinee v. Argonaut-Midivest Ins. Co., 880 F.2d 685, 689 (3d Cir.1989). Thus, the court must “weigh the contacts on a qualitative scale according to them relation to the policies and interests underlying the issue.” Shields v. Consolidated Rail Corp., 810 F.2d 397, 400 (3d Cir.1987). Parenthetically, Beecham argues that the report and recommendation of the magistrate judge and the subsequent memorandum opinion of the district judge in the Middle District of Pennsylvania constitute law of the case as to the choice of law issue now before the court. This argument must be rejected out of hand. First of all, it is axiomatic that the doctrine of law of the case is binding only as to issues actually addressed and decided or decided by necessary implication. See Bridge v. U.S. Parole Comm’n, 981 F.2d 97, 102 (3d Cir.1992); Schultz v. Onan Corp., 737 F.2d 339, 345 (3d Cir.1984); Todd & Co. v. Securities & Exchange Commission, 637 F.2d 154, 157 (3d Cir.1980). The motion before the magistrate judge, and later the district judge, in the Middle District of Pennsylvania was a motion to transfer pursuant to 28 U.S.C. § 1404(a). While the substantive law which will be applied in an action is a factor for consideration in a § 1404(a) analysis, it is but one of a number of considerations to be weighed in what is, ultimately, a determination of whether private and public interests warrant the transfer of an action. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The transferor court did not presume to decide the choice of law issue and the remarks of both the magistrate judge and the district judge reflect as much. Leksi, Inc. v. Federal Ins. Co., 736 F.Supp. 1331, 1333 (D.N.J.1990) (another court’s decision on a motion to transfer under section 1404(a) is not deemed an actual determination of what substantive law should apply); Continental Ins. Co. v. Beecham, Inc., No. 87-1275, slip op. at 8, 10, 1988 WL 168564 (M.D.Pa. June 24, 1988) (memorandum opinion and order of the district judge) (“the magistrate concluded based on a preliminary review of choice of law principles ...” and “we need not determine the ultimate outcome of [the choice of law] issue at this stage of the proceedings”). Furthermore, the motion to transfer was made over four years ago on a record which was obviously not complete. Fairness and accuracy mandate that this court determine the choice of law issue de novo on the record before it. A. Contacts Analysis 1. Restatement Section 193 As part of Griffith’s hybrid analysis, the court must consider the contacts with Pennsylvania and New Jersey. The court in Griffith looked for guidance in its assessment of relevant contacts to the Restatement (Second) of Conflict of Laws section 379(2) (hereinafter “Restatement”), which relates to tort actions. Accordingly, because this is a contract action, it is appropriate that this court look to those sections of the Restatement which apply to contract actions. Continental argues that section 193 should govern the contacts analysis here. That section, entitled “Contracts of Fire, Surety or Casualty Insurance,” provides that the validity of such a contract is to be determined according to “the local law of the state which the parties understood was to be the principal location of the insured risk-during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship under the principles in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.” Restatement § 193. Citing both case law and comments to the Restatement, Continental urges the court to follow section 193. Continental’s argument, however, is flawed. The application of section 193 depends upon an understanding between the parties as to the “principal location of the insured risk.” Restatement § 193. The comments to the section make clear that “Ltjhe location of the insured ■ risk will be given greater weight than any other single contact in determining the state of the applicable law provided that the risk can be allocated, at least principally, in a single state. ” Restatement § 193, comment b (emphasis added). The comment cites two examples of when the risk will not be allocable to a single state: where the insured object will move from state to state and where the policy covers a group of risks that are scattered in two or more states. Id. Continental does not suggest that there was an explicit understanding between itself and Beecham that the principal location of the insured risk was Pennsylvania. Rather, it argues that section 193 dictates that Pennsylvania law apply “for the simple reason that the insured’s .liability in the underlying action arises from a risk located in that State.” Pl.Br. in Support of Summary Judgment at 20. Continental errs, however, in focusing on where the liability arose rather than where the risk or risks which were the subject of the contract of insurance were located. In other words, the relevant consideration is the location of the risks covered by the contract at the time the contract was entered into and throughout the term of the contract, not where any given insured risk came to fruition. Whitmoyer was added to Beecham’s CGL policy with Continental as an additional insured after the acquisition in 1978. Included as additional insureds under that contract, in addition to Beecham’s operations in New Jersey, were the Affiliated Laboratories Division of Whitmoyer, located in Illinois, as well as other businesses located in California and Tennessee. Def.App. 27. It is obvious that the risks covered by the CGL policies at issue extended far beyond merely the risk presented by the Whitmoyer site in Myers-town, Pennsylvania. The nature of the contract, therefore, was such that the risk or risks could not be allocated principally to one state. That the terms of section 193 are not applicable in instances in which the risks covered by a contract of insurance are dispersed in more than one state is made abundantly clear not only by comment b, but also by comment f and by case law considering such instances. Comment b states that where the risk cannot be principally allocated to one state, the location of the insured risk “has less significance.” Restatement § 193, comment b. Comment f, applicable to multiple risk policies, states that such a policy may be treated as if it is more than one policy, with the law of the state where each risk is located to be applied to any dispute concerning that risk. By its very terms, however, comment f is of limited scope. It applies only to policies covering risks for which a state requires a particular statutory form, typically fire insurance policies, which form will generally be incorporated into the policy. Id., comment f. Comment f states that at least the part of the policy which incorporates the form of a particular' state will be construed in accordance with that state’s rules. Id. Because the CGL policy at issue, or at least those parts of it relevant to this action, are not of the ilk contemplated by comment f, the policy will not be treated as more than one policy. The conclusion that section 193 has no application where the risks insured are scattered is consistent with the case law. The Third Circuit has reached a similar conclusion, albeit in the context of an insured object which was a movable piece of equipment. See Compagnie des Bauxites, 880 F.2d at 690. Moreover, the court in United Brass Works found section 193 to be “largely inapplicable if the risk in question is not the policy’s primary insured risk.” United Brass Works, Inc. v. American Guarantee and Liability Ins. Co., 819 F.Supp. 465, 469 (W.D.Pa.1992). In addition, Continental’s reliance on Jones Truck Lines v. Transport Ins. Co., No. 88-5723, 1989 WL 49517 (E.D.Pa. May 10, 1989) is misplaced. First of all, the Jones Truck Lines court engaged in a section 193 analysis only after reciting the contact factors applicable to contract actions generally in section 188(2). Id. at *3. Secondly, the court misapplied comment f of section 193, construing it overbroadly to mean that multiple risk policies in general are to be treated as if they involve separate contracts of insurance for each risk. Id. Such an interpretation not only misreads comment f, but also eviscerates the relevant portions of comment b cited above. Continental’s argument that the contacts analysis must proceed under section 193 and that Pennsylvania, therefore, has the dominant contact for purposes of this dispute, must be rejected. Rather, the court must look to Restatement section 188, the section applicable to contract actions generally, for guidance as to the relevant contacts with Pennsylvania and New Jersey. See Compagine des Bauxites, 880 F.2d at 690 (citing Sanderfer Oil & Gas, Inc. v. AIG Oil Rig of Texas, Inc., 846 F.2d 319, 324 (5th Cir.1988)). 2. Restatement Section 188(2) Section 188(2) provides that in the absence of an effective choice of law by the parties, as here, the contacts to be considered are: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. Restatement § 188(2). Continental is a New Hampshire corporation with its principal place of business in New York. At the time of the negotiation of and entry into the contracts of insurance at issue, Beeeham was incorporated in New Jersey and had its principal place of business in New Jersey. Following Beecham’s March, 1989 merger with SmithKline Beckman Corporation, Smith-Kline Beeeham Corporation became a Pennsylvania corporation with its principal place of business in Pennsylvania. Pl.App. 1A & IB. The evidence concerning the place of negotiation of the contracts generally points to New Jersey, although it is acknowledged that occasional meetings pertaining to the renewal of the contracts may have taken place at Continental’s New York offices. See Wassmer Dep., Def.App. 44 at 54; Coughlin Dep., Def.App. 45 at 27. The parties offer no clues as to the place of performance of the contracts. “The place of performance of an insurance contract, in the absence of a clause specifically dealing with the issue, is the place where the premiums are paid.” Armotek Indus., Inc. v. Employers Insurance of Wausau, 952 F.2d 756, 761 (3d Cir.1991). If Beecham paid premiums to Continental’s offices in New York, this contact would support New York, a forum whose law neither party champions. In any event, with no evidence in the record as to where premiums were paid, any attempted evaluation of the performance contact would be based on sheer speculation. The record is similarly unsettled as to the place of contracting. As provided in the Restatement, the place of contracting is the place where the last act necessary to give the contract effect occurred. Restatement § 188, comment c. There is deposition testimony indicating that while some meetings may have taken place in Continental’s New York offices, such meetings would have been preliminary in nature and not attended by Robert McEntee or Albert White from Beecham. Coughlin Dep., Def.App. 45 at 27. While this may give rise to an inference that the final signatures were executed in New Jersey, the record remains vague. Continental claims that the policy documents, at least as to one policy, “appear to have been countersigned” in New York. Pl.Reply Br. at 6 n. 2; Def.App. 27 at B08Í89B-B08214B. If the countersignatures were the last act necessary for the contract to take effect and they occurred in New York, this would support a finding that the law of New York should apply — again, a result which neither party presses. Despite Continental’s denigration of New Jersey’s contacts, it asserts only two contacts with Pennsylvania. First, it asserts that SmithKline Beecham, formed as a result of the 1989 merger of Beecham and SmithKline Beckman, is a Pennsylvania corporation with its principal place of business in Pennsylvania. Given that the issue before the court is one of contract interpretation and Beecham was a New Jersey corporation with its principal place of business in New Jersey throughout the entire time of negotiation and while the contracts were in effect, this contact carries little weight. See Home For Crippled Children v. Prudential Ins. Co., 590 F.Supp. 1490, 1500-01 (W.D.Pa.1984). Second, Continental asserts that the contaminated property is located in Pennsylvania. To the extent that Continental claims that Pennsylvania is, thus, the place of the insured risk, that argument is undermined by the fact that the insured risk was spread among numerous states. Were Continental’s argument accepted by the court, a single contract of insurance could conceivably be subject to fifty different interpretations. But see Transamerica Ins. Co. v. Thomas Durkin & Sons, Inc., No. 90-0968, 1991 WL 246927, *2 (E.D.Pa. November 19, 1991) (finding this assumption “unreasonable”); Johnson Matthey Inc. v. Pennsylvania Mfrs. Ass’n Ins. Co., 250 N.J.Super. 51, 58-59, 593 A.2d 367 (App.Div.1991) (rejecting this argument under New Jersey choice of law analysis). To the extent that Continental presses the relevance of this contact because it is the subject matter of this suit, this argument, too, must be rejected. This action is a contract dispute; the relevance of contacts must be viewed with reference to the contract. Pennsylvania courts have routinely rejected the situs of the occurrence of a tort as a contact relevant to a dispute over an insurance contract. McCabe v. Prudential Property and Casualty Ins. Co., 356 Pa.Super. 223, 232, 514 A.2d 582 (1986); Nationwide Mutual Ins. Co. v. Walter, 290 Pa.Super. 129, 138, 434 A.2d 164 (1981). B. Interest Analysis Proceeding to the second arm of the Griffith framework, the court must “evaluate] qualitatively the policies underlying the significant relationships to the controversy.” Griffith, 416 Pa. at 22, 203 A.2d 796. This interest analysis, which tempers the Restatement’s contacts analysis, is intended to ensure that the law of the state “having the most interest in the problem and which is most intimately concerned with the outcome” will govern. Spratley v. Aetna Casualty & Surety Co., 704 F.Supp. 595, 597 (E.D.Pa.1989) (quoting Breskman v. B.C.B. Inc., 708 F.Supp. 655, 656 (E.D.Pa.1988)). Stated somewhat differently, the court must determine “the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.” McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677 (1966). The primary dispute between the parties is the interpretation of the pollution exclusion clause included in the CGL policies issued to Beeeham by Continental. The court must examine the laws of New Jersey and Pennsylvania to determine if they differ, discern the policies of each state underlying its law, and decide, based on these policies, which state has a priority interest in having its law applied to this dispute. A review of this nature yields the conclusion that New Jersey has a greater interest in having its law apply. In order for there to be coverage under the policies at issue, there must be an “occurrence,” defined as “an accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured.” The pollution exclusion clause, however, provides that injury and property damage arising from pollution is generally not covered by the policy unless the “discharge, dispersal, release or escape is sudden and accidental”. The relevant distinctions between Pennsylvania and New Jersey law relate to how the pollution exclusion clause is to be read in relation to the definition of “occurrence”. Pennsylvania law is clear that the pollution exclusion clause is unambiguous and that the limitation rendering that clause inapplicable to discharges that are “sudden and accidental” is not merely a restatement of the “neither expected nor intended” language of the occurrence definition. Thus, under Pennsylvania law the “sudden and accidental” language has been interpreted to mean that the pollution exclusion clause will apply except where discharges “are abrupt and last a short time.” Northern Ins. Co. v. Aardvark Assoc., Inc., 942 F.2d 189, 193 (3d Cir.1991); see also Lower Paxon Township v. United States Fidelity & Guaranty Co., 383 Pa.Super. 558, 577, 557 A.2d 393 (1989); Techalloy Co. v. Reliance Ins. Co., 338 Pa.Super. 1, 13, 487 A.2d 820 (1984); Nationwide Mutual Ins. Co. v. R.P. Hoffman Mobil, Inc., No. 90-1187, slip op. at 7-8 (E.D.Pa. September 17, 1992). Until recently, it was somewhat unclear as to how the pollution exclusion clause was to be interpreted under New Jersey law. The Supreme Court of New Jersey, however, addressed the issue head-on in Morton Int’l, Inc. v. General Accident Ins. Co. of America, 134 N.J. 1, 629 A.2d 831 (1993). After an extensive analysis, the court concluded that although the literal language of the pollution exclusion clause would ordinarily support a reading that “sudden” has a temporal component, the representations of the insurance industry in the course of obtaining regulatory approval for the language of the standard pollution exclusion, and specifically the representation that it was merely to “clarify” the definition of “occurrence” to exclude intentional polluters, mandate that the clause be given a different meaning. The court held: Accordingly, we hold that notwithstanding the literal terms of the standard pollution exclusion clause, that clause will be construed to provide coverage identical with that provided under the prior occurrence-based policy, except that the clause will be interpreted to preclude coverage in cases in which the insured intentionally discharges a known pollutant, irrespective of whether the resulting property damage was intended or expected. Id. at 66, 629 A.2d 831. Thus, under New Jersey law the pollution exclusion clause is read more narrowly than it is under Pennsylvania law. As previously noted, Pennsylvania’s only meaningful connection to this action is that the contaminated site is located within the state. To be sure, Pennsylvania has an interest in the proper treatment and remediation of environmentally contaminated sites within its borders. At issue, however, is the interpretation of a contract. Pennsylvania’s interest in interpreting the pollution exclusion clause to encompass a temporal element over and above the “sudden and accidental” requirement inherent in the occurrence definition, and avoid what its courts have held to be a “blatantly unreasonable” interpretation which would “rewrite the policy by excluding one impoi'tant pollution coverage requirement,” is undoubtedly a legitimate one. Lower Paxon Township, 383 Pa.Super. at 577, 557 A.2d 393. Interpreting insurance contracts to mean what they say furthers the goal of meeting the reasonable expectations of the parties. This policy of Pennsylvania, however, simply lacks the requisite nexus to this action to speak forcefully for the application of Pennsylvania law. The contracts between Continental and Beecham were not negotiated, entered into, or performed in Pennsylvania. At the time the contracts were entered into, neither party was a Pennsylvania corporation or had its principal place of business in the state. While one insured risk was in Pennsylvania, there were numerous other risks in other states, minimizing the importance of that factor. New Jersey, on the other hand, has repeatedly demonstrated a strong policy of protecting the insured in its interpretation of insurance contracts. The Supreme Court of New Jersey has opined on numerous occasions that insurance contracts are subject to principles of adhesion contract analysis such that where there is an ambiguity in the contract that will reasonably support two meanings, the ambiguity must be resolved in favor of coverage. Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 175, 607 A.2d 1255 (1992); Meier v. Neto Jersey Life Ins. Co., 101 N.J. 597, 612-613, 503 A.2d 862 (1986); Sparks v. St. Paul Ins. Co., 100 N.J. 325, 335, 495 A.2d 406 (1985); Allen v. Metropolitan Life Ins. Co., 44 N.J. 294, 305, 208 A.2d 638 (1965); Mazzilli v. Acci. & Casualty Ins. Co., 35 N.J. 1, 7,170 A.2d 800 (1961). It has held as well that “courts are bound to protect the insured to the full extent that any fair interpretation will allow.” Mazzilli, 35 N.J. at 7, 170 A.2d 800. The strength of this policy in New Jersey is nowhere more evident than in the Supreme Court’s Morton opinion. The court chastised the insurance industry for representations that it characterized as “not only astonishing but also inaccurate and misleading as well,” Morton, supra, at 38, 629 A.2d 831, and staunchly defended the insurance consumers who were victimized by the incomplete disclosures of the insurance industry in the process of obtaining regulatory approval for the pollution exclusion clause: This court is now asked to construe CGL policies containing the pollution exclusion clause in a manner consistent with the clause’s literal language, ignoring the industry’s misleading presentation to state regulators over twenty years ago, and overlooking the apparent unfairness that such an interpretation would impose on policyholders who were charged rates that did not reflect the radical diminution in coverage contemplated by the insurance industry. So to construe the pollution exclusion would, in this Court’s view, violate this State’s strong public policy requiring regulation of the insurance business in the public interest, and would reward the industry for its misrepresentation and nondisclosure to state regulatory authorities. Id. at 73, 629 A.2d 831. In order to protect the insured and fairly interpret the boundaries of insurance coverage, New Jersey courts give effect to the reasonable expectations of the insured. Meier, 101 N.J. at 612, 503 A.2d 862 (citing Di Orio v. New Jersey Mfrs. Ins. Co., 79 N.J. 257, 269-70, 398 A.2d 1274 (1979). In this connection, the Morton court imputed the reasonable expectations of the New Jersey insurance regulatory authorities, as informed by the representations of industry groups, to those insured’s with CGL policies containing the pollution exclusion clause. Morton, supra, at 74, 629 A.2d 831. The vitality and consistency of New Jersey’s policy of resolving ambiguities in insurance contracts in favor of insureds and, more importantly, the intimate connection of this policy to New Jersey’s contacts to this action — that Beecham was a New Jersey corporation doing business in New Jersey and that some, if not all, of the negotiation of the contracts took place in New Jersey — lead inexorably to the conclusion that New Jersey has a priority interest in having its law applied in this action. The heart of this dispute is the insurance contracts, which have the most significant contacts with New Jersey. In turn, New Jersey has a strong policy of protecting its insured citizens in insurance contract interpretation. Where the contacts and interests of one state so starkly rise above all other contacts and interests, the choice of law is evident: New Jersey law must be applied. IY. Coverage Issues As a federal court sitting in diversity, this court must predict how the highest court of the state whose law is being applied would rule. Adams v. Madison Realty & Dev., Inc., 853 F.2d 163, 168 (3d Cir.1988); Blum v. Witco Chemical Corp., 829 F.2d 367, 376 (3d Cir.1987). As previously mentioned, during the pendency of these motions, the law of New Jersey with respect to the pollution exclusion clause was clarified by the Supreme Court’s decision in Morton. At least with respect to the definition of “occurrence” and the pollution exclusion clause appearing in the CGL policies, that decision will inform and guide this court’s decision. A. Burden of Proof The parties’ competing assertions as to the burdens of proof are easily resolved. The Third Circuit has held that the burden of proof is a matter of substantive rather than procedural law and that, therefore, the principles of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), require a federal court to allocate the burdens in accordance with state law. Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1174 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). New Jersey law is clear that when an insurer seeks a declaration of noncoverage by way of a declaratory action, the insurer, as plaintiff, bears the burden of proving the facts alleged in the complaint. Summit Assoc. v. Liberty Mutual Fire Ins. Co., 229 N.J.Super. 56, 62-63, 550 A.2d 1235 (App.Div.1988); Concord Ins. Co. v. Miles, 118 N.J.Super. 551, 555, 289 A.2d 267 (App.Div.1972); Hanover Ins. Group v. Cameron, 122 N.J.Super. 51, 56, 298 A.2d 715 (Ch.Div.1973). Here, Continental has alleged that there was no “occurrence” giving rise to coverage under the CGL policies. Therefore, Continental will bear the burden of proving that the ultimate damage was expected or intended by Beecham. Morton, supra, 134 N.J. at 17, 629 A.2d 831; New Castle County v. Hartford Accident and Indemnity Co., 933 F.2d 1162, 1197 (3d Cir.1991) (cited in Morton ). Moreover, New Jersey law is equally clear that the insurer must bear the burden of demonstrating that a policy exclusion would bar coverage. The New Jersey cases to this effect are legion. See, e.g., Transamerica Ins. Co. v. National Roofing, Inc., 108 N.J. 59, 65, 527 A.2d 864 (1987); United Rental Equipment Co. v. Aetna Life and Casualty Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977); Burd v. Sussex Mutual Ins. Co., 56 N.J. 383, 399, 267 A.2d 7 (1970); Diamond Shamrock Chemicals Co. v. Aetna Casualty & Surety Co., 258 N.J.Super. 167, 216, 609 A.2d 440 (1992); Aetna Ins. Co. v. Weiss, 174 N.J.Super. 292, 296, 416 A.2d 426 (App.Div.), certif. denied, 85 N.J. 127, 425 A.2d 284 (1980); Reliance Ins. Co. v. Armstrong World Industries, Inc., 259 N.J.Super. 538, 559, 614 A.2d 642 (Law Div.1992). This .burden requires not only that the insurer demonstrate that the exclusion applies, but also that the “sudden and accidental” exception to the exclusion does not apply. See New Castle County, 933 F.2d at 1182 (predicting that the Delaware Supreme Court would allocate not only the burden of proving that the pollution exclusion is applicable but also the burden of proving that the “sudden and accidental” exception to the exclusion is not applicable in line with the traditional distinction between coverage clauses and exclusionary clauses). Of course, the insured must carry the burden with respect to any affirmative defenses asserted by it. Hanover Ins. Group, 122 N.J.Super. at 56, 298 A.2d 715. B. Occurrence and Pollution Exclusion Prior to the Supreme Court’s ruling in Morton with reference to the interpretation of the pollution exclusion clause under New Jersey law, the weight of New Jersey ease law was in accord with the Appellate Division’s holding in Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J.Super. 516, 528 A.2d 76 (App.Div.1987), i.e. that the “sudden and accidental” language of the pollütion exclusion clause is simply a restatement of the “neither expected nor intended from the standpoint of the insured” language of the occurrence definition. See CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77 (1st Cir.1992); National Starch and Chemical Corp. v. Great American Ins. Cos., 743 F.Supp. 318 (D.N.J.1990); Marotta v. RLI Ins. Co., No. 87-4430, 1990 WL 359763 (D.N.J. June 5, 1990); Summit, 229 N.J.Super. at 63, 550 A.2d 1235; CPS Chemical Co. v. Continental Ins. Co., 199 N.J.Super. 558, 489 A.2d 1265 (Law Div.1984), rev’d on other grounds, 203 N.J.Super. 15, 495 A.2d 886 (App.Div.1985); Jackson Township Municipal Utilities Authority v. Hartford Accident & Indemnity Co., 186 N.J.Super. 156, 451 A.2d 990 (Law Div.1982); Lansco, Inc. v. Dept. of Environmental Protection, 138 N.J.Super. 275, 350 A.2d 520 (Ch.Div.1975), aff'd, 145 N.J.Super. 433, 368 A.2d 363 (1976), certif. denied, 73 N.J. 57, 372 A.2d 322 (1977). In Morton, however, the Supreme Court expressly overruled Broadivell Realty to the extent that Broadwell Realty held that the standard pollution exclusion clause is merely a restatement of the unexpected and unintended requirement of “occurrence”. Morton, supra, at 29, 629 A.2d 831. The Morton court recognized that the word “sudden” generally has a temporal element and that “sudden and accidental” as used in the pollution exclusion clause referred to “those discharges, dispersals, releases, and escapes of pollutants that occur abruptly or unexpectedly and are unintended.” Id. Nevertheless, the court declined to enforce the clause as written, finding, as noted earlier, that the insurance industry had substantially misled regulators in the course of gaining approval for the use of the pollution exclusion clause in standard CGL policies. In particular, the court found that the industry’s description of the pollution exclusion clause as a “clarification ... to avoid any question of intent,” i.e., to preclude insurance coverage for intentional polluters, disingenuous in light of the industry’s general position today that the exclusion precludes coverage for all pollution unless the discharge of the pollutants was abrupt or from a “boom” event. Id. at 37, 629 A.2d 831. After engaging in what can only be called a monumental survey of judicial treatment of the pollution exclusion clause in state and federal courts, the court concluded that irrespective of whether the pollution exclusion clause is interpreted to mean “abrupt” or “unexpected”, the effect of the clause on coverage for damage caused by pollution would not be the same as in a strictly occurrence-based policy. The real issue before it, opined the court, was whether the pollution exclusion clause should be applied in accordance with its literal meaning when that would result in a drastic — and, from the standpoint of regulators, unforeseen — reduction in coverage for pollution-caused damages. Id. at 69, 629 A.2d 831. Based on the representations — or misrepresentations — of the insurance industry, the court held that the pollution exclusion clause will be construed to provide coverage identical with that provided under the prior occurrence-based policy, except that the clause will be interpreted to preclude coverage in cases in which the insured intentionally discharges a known pollutant, irrespective of whether the resulting property damage was intended or expected. Id. at 77, 629 A.2d 831. Thus, in order to prevail on its motion for summary judgment regarding the pollution exclusion clause, Continental must show as a matter of law that Beecham intentionally discharged pollutants. On the other hand, in order to prevail on its motion insofar as it concerns the pollution exclusion clause, Beecham must demonstrate that there is an issue of material fact as to whether it intentionally discharged pollutants. Motion also addressed the definition of “occurrence”, i.e. “an accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured.” The occurrence requirement will be satisfied where the injury, here environmental contamination, was unexpected and unintended. It is the intent or expectation of causing the injury, rather than the intent to do the act which precipitates the injury, which controls. See Morton, supra, at 80, 629 A.2d 831; SL Indus., Inc. v. American Motorists Ins. Co., 128 N.J. 188, 207-08, 607 A.2d 1266 (1992) (in the context of defining an occurrence, the relevant inquiry is into the insured’s intent to cause the injury rather than the act that resulted in the injury); Lyons v. Hartford Ins. Group, 125 N.J.Super. 239, 245, 310 A.2d 485 (App.Div.1973), certif. denied, 64 N.J. 322, 315 A.2d 411 (1974) (coverage exists for unintended results of intentional acts). Moreover, in determining whether there was an intent to cause an injury, it is the subjective intent of the alleged wrongdoer which is relevant. Morton, supra, at 80, 629 A.2d 831; Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 185, 607 A.2d 1255 (1992); see also J.T. Baker, Inc. v. Aetna Casualty and Surety Co., 135 F.R.D. 86, 90 (D.N.J.1989). The Morton court noted that the insured’s intent to injure could be objectively established in some instances where “exceptional circumstances” demonstrate such intent. Morton, supra, at 83, 629 A.2d 831. Thus, in order to prevail on a motion for summary judgment with reference to whether there was an “occurrence”, Continental must demonstrate that Beecham either expected or intended the contamination at the Myerstown plant. Beecham can defeat this aspect of Continental’s motion by raising a genuine issue of material fact as to whether it expected or intended the contamination. On the other hand, Beecham may prevail on its motion for summary judgment insofar as it seeks to strike the counts of Continental’s declaratory judgment complaint related to the occurrence requirement only if it is able to show that Continental cannot raise any factual issue as to at least one element for which Continental will bear the burden of proof at trial, i.e. that Beecham expected or intended the contamination. Continental contends that throughout its ownership of Whitmoyer — and before — Beecham was aware that the plant’s operations were adding to the air, land, and groundwater contamination and, thus, that it expected or intended that contamination. Continental also raises subsidiary arguments, one of which is that coverage is barred by the “loss in progress” doctrine. Beecham counters that there is no evidence that it expected or intended the contamination, a position, it claims, which is bolstered by the fact that Continental’s own technical personnel who inspected the site did not uncover the contamination. In addition, Beecham points out that the policies contained an endorsement providing that coverage can be denied for nondisclosure of hazards only if such nondisclosure was intentional. Finally, Beecham argues that Continental should be estopped from denying coverage based on a loss in progress because it initially failed to assert this ground. Reviewing the facts of record, it is apparent that Beecham cannot prevail on its motion for summary judgment as to the pollution exclusion clause or the occurrence requirement. There is at the very least an issue of fact as to whether Beecham intentionally dispersed or discharged pollutants. Moreover, although it is a closer call, the evidence points to a factual issue as to whether the environmental damage resulting was expected or intended such that there was or was not an occurrence, i.e. whether Beecham intended to cause the damage. The deposition testimony of Lloyd Croesus, Whitmoyer’s Safety and Environmental Manager, indicates that he informed Beecham personnel that there had been contamination prior to Rohm & Haas’ purchase of Whitmoyer and that there was still some groundwater and soil arsenic contamination. Croesus Dep., Pl.App. 8 at 118-119. Croesus also testified that in 1979 he noticed cracks in the arsenic waste vault. Croesus Dep., PLApp. 8 at 330. He stated, as well, that, as a memorandum he wrote at that time indicated, Beecham had expressed concerns about leaking or leaching from the concrete vault containing arsenic waste. Id. at 330-32. Continental also points to that portion of the Purchase Agreement between Beecham and Rohm & Haas disclosing the bottled water agreements between Whitmoyer and local residents. Although, as noted earlier, Beecham attacks Croesus’ credibility and the Beecham employees involved deny that they were informed of the arsenic contamination or the remediation efforts by Rohm & Haas, and although Beecham’s General Counsel Albert White denies having seen that portion of the Purchase Agreement pertaining to the bottled water, the court cannot disregard the Croesus testimony and other disputed evidence. Who and what is to be believed is for trial. In reviewing the record with an eye toward Continental’s motion, it is similarly apparent that factual disputes preclude summary judgment. Aside from the fact that the Beecham personnel involved in the acquisition of Whitmoyer have denied that they were told about the arsenic contamination at the site or about Rohm & Haas’ remediation efforts prior to 1978, Beecham has evinced at least some dispute of fact relating to each of Continental’s asserted grounds for summary judgment. For instance, Whitmoyer Operations Committee members Anthony Bott and Leroy Kauffman indicated that the committee believed that the concrete vault at the site was adequately sealed. Bott Dep., Def. App. 39 at 38; Kauffman Dep., Def.App. 40 at 62. In short, factual disputes, both concrete and inferential, mandate the conclusion that Continental cannot meet its burden with respect to whether there was an “occurrence” or its burden with respect to the pollution exclusion clause. C. Waiver/Estoppel of Coverage Beecham contends that Continental should be estopped from litigating three additional defenses to coverage. Beecham claims that Continental raised these coverage defenses, i.e. the “known loss” or “loss in progress” doctrine, the named insured endorsement, and the alienated premises exclusion, for the first time in its motion for summary judgment and that, because Continental had previously disclaimed coverage on other specified grounds but not these, it has waived or is estopped from arguing these “new” defenses. Continental’s rejoinder is that the loss in progress doctrine is subsumed within the occurrence issue, which was one of its original bases for disclaiming coverage, and that, in any event, coverage cannot be expanded by the invocation of waiver or estoppel. Beecham’s argument that Continental has waived th