Full opinion text
OPINION KEETON, District Judge. This aging hazardous-waste-disposal-liability-insuranee-coverage dispute, unique in some details, is in many ways within a familiar pattern of factual and legal complexity. In a commendable response to the practical consequences for the parties and the legal system, counsel cooperated fully with the court in fashioning an order for phased trial, commencing with a Phase-One Trial before a jury on the issues determining liability for coverage. For the reasons explained in this Opinion, I conclude that defendant Atlantic Mutual Insurance Company (“Atlantic Mutual”) is entitled to judgment on the verdict and, in the alternative, to judgment in part on the verdict and in part as a matter of law. I. From the outset, the dispute has centered on the duty to pay and the duty to defend under an “occurrence” liability insurance policy that was issued by Atlantic Mutual to Interex Corporation, Inc. (“Interex”) for a policy period of noon December 29, 1979 to noon December 29, 1980 (the 1979-80 period), renewed for a period of noon December 29, 1980 to noon December 29, 1981 (the 1980-81 period). Three governmental agencies (of the United States, Massachusetts, and New Hampshire) issued PRP letters in 1986, asserting claims against Interex, among other entities, for remediation costs for toxic waste contamination at four Cannons Engineering sites, located respectively at Bridgewater and Plymouth, Massachusetts, and Nashua and Londonderry, New Hampshire. II. Consultation on the verdict form and charge to the jury commenced months before the jury was impanelled and continued intermittently throughout the trial, ending (with objections to the verdict form and charge, and rulings on them) just before the jury commenced deliberations. The purpose of the court was, in cooperation with counsel, to fashion a verdict form that would, if possible, obtain an answer from the jury to every question of genuinely disputed fact that might be material to judgment under any resolution, by this or a higher court, of the many and complex disputed issues of law. First-phase issues of fact were submitted to the jury by special questions only. That is, the court elected the option, allowed by Fed.R.Civ.P. 49(a), not to ask the jury to return a general verdict under Fed.R.Civ.P. 49(b). The verdict was in the form of answers to nine special questions, subdivided into more than a hundred pairs of blanks labeled YES or NO and a few dozen three-way YES options for the jury to check, if applicable. The jury’s answers have considerably reduced the number of factual and legal issues material to disposition. Still left for decision, after substantial post-verdict submissions of the parties, is a moderately complex array of substantive and procedural issues. The jury returned its verdict in the Phase-One Trial on July 22, 1994. The verdict is reproduced in Appendix A to this Opinion. Appendix B contains the introductory paragraphs of the Charge to the Jury along with Part II of the Charge, which explained to the jury the law relevant to the special questions directed to them. Each party moved for judgment as a matter of law after the evidence was closed in the Phase-One Trial. The motions were “not granted,” Fed.R.Civ.P. 50(b). Each party moved for final judgment in its favor, partly on the verdict and partly as a matter of law. Each party moved, in the alternative, for an interlocutory judgment in its favor as to specified issues, partly on the verdict and partly as a matter of law, requesting that the court proceed promptly with a Phase-Two Trial of all remaining issues essential to final disposition. I have reviewed the jury verdict and have determined that (with one possible exception, Answer 9(a), discussed in Part IX infra) all the jury findings were supported by evidence received at the Phase-One Trial. Indeed, the entire array of jury answers, considered in the context of the whole set of factual disputes presented by the evidence received at the Phase-One Trial, gives me confidence that the jury, despite the extraordinary complexity of the case, understood the evidence, the contrasting contentions of the parties, and the questions submitted to them. They answered in a pattern consistent with a reasoned determination of all the genuinely disputed fact questions they were asked to answer. The way issues of law are decided in this or a higher court will determine which among all the findings are material to final judgment and which are not. For the reasons stated in this Opinion, I conclude that defendant Atlantic Mutual is entitled to judgment on the verdict of the jury as to the liability issues tried in the Phase-One Trial. In addition, I have proceeded to examine other issues that might be reached if a higher court overturned one or more of my legal rulings material to judgment on the verdict. After doing so, I have determined, in the alternative, that under each of two additional lines of legal reasoning involving currently unsettled issues of state substantive law, Atlantic Mutual is entitled to judgment. On either of these alternative grounds, the judgment would be partly on the verdict and partly as a matter of law. Under all three bases of judgment, some of the jury findings (though supported by evidence and favorable to the position argued by plaintiff) are determined to be immaterial to the outcome as a matter of law. III. The scope of coverage for either a duty to pay or a duty to defend under liability insurance coverage depends, first, on the terms of the contract. There are significant differences among liability insurance contracts. For example, some are “occurrence” policies; others are “claims made” policies. Moreover, different “occurrence” policies differ from each other in significant ways, and so do different claims-made policies. The policies in evidence in this case are “occurrence” policies, which state that the insurer promises [to pay] on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... property damage to which this insurance applies, caused by an occurrence The policies also state that the company shall have the right and duty to defend any suit against the insured seeking damages on account of such ... property damage, even if any of the allegations of the suit are groundless, false, or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient.... The following definitions are provided: “occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured; ... “property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, ... The policy also contains a common form of “pollution exclusion” that states: This insurance does not apply: [to] property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the 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; ... Other relevant policy provisions are quoted in full in the Charge to the Jury reproduced in Appendix B. IV. As noted above, the answers of the jury to special questions are set forth in full in Appendix A. Here, I summarize key findings that, under my conclusions of law, support a judgment for defendant Atlantic Mutual on the verdict of the jury as to the liability issues in this case. The jury was asked to make findings as to all four Cannons sites, and to make findings for each of the two policy years at issue. A. The 1979-80 Policy Year With respect to the Plymouth site, the jury found that the PRP letters made a claim against Interex that was or potentially (even if not explicitly) was based on property damage caused by a release of waste materials or other contaminants during the 1979-80 policy year. See Jury’s Responses to Questions 2(a), (b), and (c); 4(a), (b), and (e). The jury found that the property damage did not arise out of a release that was sudden. See Jury’s Response to Question 2(c)(ii). The jury found that there was no preponderance of evidence either way as to whether the PRP letters even potentially claimed that the property damage arose out of a release that was sudden. See Jury’s Response to Question 4(c)(ii). The jury found that the PRP letters did not claim or potentially claim that property damage arose out of a release dining the 1979-80 policy year at any of the other three Cannons sites. B. The 1980-81 Policy Year With respect to the Bridgewater site, the jury found that the PRP letters made a claim against Interex that was or potentially (even if not explicitly) was based on property damage caused by a release of waste materials or other contaminants during the 1980-81 policy year. See Jury’s Responses to Questions 3(a), (b), and (c); 5(a), (b), and (c). The jury found that there was no preponderance of the evidence either way as to whether the property damage arose out of a release that was sudden and that there was no preponderance of the evidence either way as to whether the PRP letters even potentially claimed that the property damage arose out of a release that was sudden. See Jury’s Responses to Questions 3(c)(i) and 5(c)(i). The jury found that the PRP letters did not claim or potentially claim that property damage arose out of a release during the 1980-81 policy year at any of the other three Cannons sites. For reasons explained in Part VI below, I hold that the burden of proof was on Interex on the issue of suddenness, as part of the meaning of “sudden and accidental.” The failure of Interex to meet this burden was fatal to all Interex claims for coverage. V. A. Each party has advanced an argument after verdict for an interpretation of the verdict form that is both contrary to its commonsense meaning and contrary to any contention disclosed unambiguously to the court and opposing counsel and accepted by the court as a premise for fashioning the verdict form and the charge explaining it. The consultations of record regarding the verdict form and charge to the jury were extensive. If counsel on either side thought the verdict form susceptible of the interpretation now suggested, they had ample opportunity to disclose that potential interpretation to opposing counsel and the court. Applying a standard of objectively reasonable conduct, I find that counsel on each side could not reasonably have believed that the court and opposing counsel would have agreed to either of the interpretations now advanced. This is especially apparent in view of the court’s expressed objective of phrasing the questions, to the maximum extent possible given the complexity of the case, in plain English rather than jargon developed by lawyers practicing in the hazardous waste disposal/liability insurance area, and with successive questions organized and positioned on the page for the reader in a structure that would help the reader see the pattern of the verdict form as a whole, the similarities and differences among the different questions and sub-parts of questions, and the relationships among the questions and subparts of questions. Atlantic Mutual now attempts to convert answers to part (c)(ii) of Questions 2 and 4 and part (c)(i) of Questions 3 and 5 into jury findings of no accident. Interex argues that the answers to part (a) of Questions 2 through 5 alone are sufficient to satisfy the elements of its burden of proving a claim or potential claim within the primary definition of coverage in the insurance contract. Inte-rex then argues that answers to parts (b) and (c) of Questions 2 through 5 are merely jury findings that the pollution-exclusion clause of the policy did not apply. Thus, Interex concludes that the jury found that there were covered occurrences not involving any release or discharge of contaminants into or onto one of the Cannons sites, i.e., occurrences within the primary definition of covered occurrences and entirely outside the pollution exclusion. The arguments of both parties are fundamentally inconsistent with a commonsense interpretation of the questions in the verdict form and answers of the jury. Before turning to that interpretation in Part D below, I call attention to some of the flaws in each of the opposing contentions for a different interpretation. B. Atlantic Mutual contends that it is fatal to all Interex claims that the jury declined to find by a preponderance of the evidence in part (c) of Questions 2 through 5 that a discharge or release, at a site where they found that one occurred, was accidental from the standpoint of the person causing the discharge. I rejected this contention during consultations on the charge and verdict form because it is not supported by any precedent directly on point, interpreting a policy containing the definitions of “occurrence” and “property damage” that appear in the contract between Atlantic Mutual and Interex. Though the issue may be unsettled and debatable under existing precedents, I do not reach it in deciding this case in view of my conclusion that judgment must be entered for Atlantic Mutual in any event on other grounds. C. Interex contends that the phrase “this kind of property damage,” in part (c) of Questions 2 through 5, referred not to whatever property damage the jury had found in answering part (a) but only to “property damage ‘arising out of the discharge of waste material into or upon land, air or water.” Pl.Mem. (Docket No. 231) p. 7. This flawed assumption about the antecedent of “this kind” is part of a syllogism in which Interex argues that we should assume that in answering part (a) of each of Questions 2 through 5 the jury found—but, rather curiously, only as to sites with respect to which the jury answered NO in part (e)—property damage other than “the property damage” about which they made findings in part (c). In the first place, construing the verdict form in this way makes it a deeply-flawed method of attempting to obtain from the jury the needed answers to decide the outcome of this case. Plaintiff made no such suggestion as this either in requests for instruction or in objections to the charge. In general, post-verdict ingenuity of counsel in trying to convert adverse jury findings into findings for the client deserves short shrift. Moreover, in this instance the proposed interpretation of the verdict form and answers is neither literally tenable nor consistent with a commonsense reading of the questions. Every sub-part after (a)(1) of Questions 2 through 5 was to be answered by the jury only if they answered YES to (a)(1). Every sub-part after (a)(2), up to (d), was to be answered only if they also answered YES to (a)(2). In this context, “was it” in (b) is most reasonably interpreted as referring to whatever property damage the jury had found came within both (a)(1) and (a)(2). Similarly, “this kind of property damage” in (c) is most reasonably interpreted as referring to whatever property damage the jury had found came within both (a)(1) and (a)(2), as well as (b). It is unreasonable to read parts (a), (b), and (c) together as allowing the jury to find property damage of two different kinds in answering parts (a) and (b)—the “arising” kind and the “not arising” kind—and never asking them to specify at what site, if any, they found the “not arising” kind. If Interex counsel thought the evidence would support findings of property damage of the “not arising” kind, they had ample opportunity to propose additional questions for inclusion in the verdict form to get specific findings. The effort to interpret the verdict form, after verdict, in the way they now assert is not a tenable position. The literal untenability of Interex’s new post-verdict interpretation of the verdict form is underscored by the fact that Interex does not suggest that the jury findings should be interpreted as saying there was some other kind of property damage as well as that arising out of release or discharge of waste material into or upon the Plymouth site in 1979-80 or the Bridgewater site in 1980-81. Yet, if their proposed interpretation of the questions were accepted, a YES finding to any of (e)(i)-(iv) would say no more than a NO finding about whether, in addition to property damage arising from release or discharge, there was also property damage from an “occurrence,” defined in the way Interex proposes, that did not involve a release or discharge. Another fallacy in the Interex syllogism is the assumed meaning of “occurrence.” Interex contends that the contract definition of “occurrence” is so broad that an occurrence is ongoing as long as any harm from loss of use of property continues as a result of presence in or upon the property of any contaminant deposited there years earlier. Thus, the argument goes, an “occurrence” type of liability insurance coverage, in each new policy period, provides more coverage, added to that existing under policies for previous policy periods, until all contaminants that impair use of the property have been removed. Such an interpretation of liability insurance contracts would indeed tap vastly more insurance resources to help pay for the consequences of ill-advised toxic waste disposal. But a moment’s reflection on the resulting extraordinary expansion of coverage, beyond anyone’s reasonable expectations at the time of issuance of liability insurance coverage over several decades past, is enough to cause a court concern about fidelity to the judicial role. Taking this course, a court would be engaging in that kind of lawmaking that occurs when a court (a) searches assiduously for ambiguity and resolves it in favor of expanding coverage beyond objectively reasonable expectations, or (b) invokes an overriding public interest in protection of the environment to expand coverage beyond the terms of the contract between the parties, construed in accordance with ordinary rules of contract law. In an attempt to bolster its proposed expansive interpretation of “occurrence,” Inte-rex points to the contractual phrase, defining the term “occurrence” to mean an accident, including continuous or repeated exposure to conditions which results in property damage neither expected nor intended from the standpoint of the insured; ... Interex passes over, without comment, the literal requirement of “accident” as part of the definition of “occurrence.” An interpretation that yields a concept of an indefinitely ongoing “accident” is an even greater strain on the words used than just the concept of an ongoing “occurrence.” And the problem is not resolved by the “including” phrase, which can reasonably be interpreted as including only “[accidental] continuous or repeated exposures.” Cf. New Hampshire Ball Bearings v. Aetna Casualty & Surety Co., [43 F.3d 749, 754] (1st Cir.1995) (given the facts and circumstances of the case, the definition of “occurrence” did not include the intentional dumping of hazardous waste by the insured because it was not an “accident”); Mottolo v. Fireman’s Fund Ins. Co., No. 94-1707, slip op. at 5-7 [43 F.3d 723, 726-27] (1st Cir. Jan. 3, 1995) (even though insured did not intend to injure property, the dumping of waste by the insured did not constitute an “accident” for the purposes of the definition of “occurrence” in this particular instance). The court’s charge to the jury stated essentially this same point when saying (at p. 33), “a continuous or repeated exposure that is an accident.” Interex counsel, to their credit, noted this instruction in the court’s charge requiring “a continuous or repeated exposure that is an accident.” (Docket No. 243 at 7). But their argument disregards its meaning. Moreover, the phrase “including continuous or repeated exposure to conditions” is qualified by the words immediately following which may be read as qualifying the word “accident” as well, but plainly qualify the phrase “continuous or repeated exposure”. The qualifying phrase “which results in property damage” takes us to another definition that says: “property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, ... It is true that the policy language is not a model of clarity. But ambiguity does not aid a party, under settled doctrines of resolving ambiguities in favor of the policyholder, unless the ambiguity relates to whether the particular interpretation proposed by the policyholder is one that might reasonably be advanced by a reader who is trying to understand the manifested meaning. See, e.g., NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 33 (1st Cir.1994); Bird v. Centennial Ins. Co., 11 F.3d 228, 232 (1st Cir.1993); Vickodil v. Lexington Ins. Co., 412 Mass. 132, 587 N.E.2d 777 (1992); cf. Bourque v. FDIC, 42 F.3d 704, 709 (1st Cir.1994); Buirkle v. Hanover Ins. Co., 832 F.Supp. 469, 482-83 (D.Mass.1993). Interex has not called to my attention any precedent supporting its theory of indefinitely ongoing occurrences, and I am aware of none. Also, despite invitations to do so, Inte-rex never proffered a proposed instruction incorporating this theory into an explanation suitable for inclusion in the charge to the jury explaining Questions 2 through 5. In these circumstances, I have interpreted the policy definition of “occurrence” somewhat less generously than Interex proposes, and instructed the jury accordingly. Of course, whatever the ultimate resolution of the Interex contention may be, in this or other litigation, it cannot be taken as the basis for interpreting answers of a jury instructed as was this jury in the charge given in this case. D. I turn, next, to a statement of what I believe to be the eommonsense interpretation of the relevant jury answers in this case. The contract definitions of “occurrence” and “property damage” that are quoted, above, were stated for the jury in the charge. These definitions tell us, and told the jury, that, subject to other terms of the policy, its liability insurance coverage concerns property damage occurring during the policy period that was neither expected nor intended from the standpoint of Interex and resulted from an accident, including continuous or repeated exposure to conditions. Stated elsewhere in the policy is the “pollution exclusion clause,” saying that this insurance does not apply to property damage arising out of the discharge, disposal, release or escape of ... acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; ... Following the semicolon in the “pollution-exclusion clause” is a provision commonly called the “exception to the exclusion.” It states: but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. In answering YES to parts (a)(1) and (a)(2) of Questions 2 through 5, the jury found that the PRP letters made claims and potentially made claims against Interex based on property damage that happened during each policy period and were caused by an occurrence. In answering YES to part (b) of Questions 2 through 5, the jury found that the property damage that was the subject of these claims and potential claims did arise out of the release or discharge of waste materials or other contaminants into or upon land, water, or air of one of the Cannons sites. Interex’s contention (that the jury’s answers meant, instead, that they found that other property damage, happening during policy years, did not “arise out of the release or discharge of waste materials or other contaminants into or upon land, water, or air of one of the Cannons cites”) is premised on another contention it makes about the meaning of “occurrence” as defined in the insurance contract—a contention about indefinitely ongoing occurrences, explained above, that the court declined to accept in fashioning the verdict form and charge to the jury. I need not and do not consider at this time Interex’s contention that my decisions in fashioning the verdict form and charge were erroneous and, if so, whether Interex’s ambiguous proposals as to any different way of framing the questions and the charge explaining them were sufficient to preserve the point for later motions before the trial court and for appeal. The present inquiry is directed, instead, to what the jury’s answers mean. And they are to be interpreted on the assumption that the jury applied the definition and explanation of “occurrence” given in the charge—not some quite different instruction that Interex contends should have been given. Reinforcing this point is the fact that even now, Interex has offered no explanation of exactly what is its proposed definition of “occurrence” and how that definition could be determined to be consistent with the terms of the insurance contract itself, or the contract as modified by any overriding rules of law for which Interex can cite precedents that are on point. Having given answers in parts (a) and (b) that have the meaning explained above, the jury then found in answering the first pair of blanks in part (c) to Questions 2 through 5 that the only Cannons sites at which “this kind of property damage” occurred were Plymouth (in the 1979-80 policy period) and Bridgewater (in the 1980-81 policy period). In answering the remaining blanks in part (c), they found that “this kind of property damage” at the Plymouth site was not the result of a sudden release or discharge. As to “this kind of property damage” at the Bridgewater site, they found that there was no preponderance of the evidence either way as to whether it was the result of a sudden release or discharge. This is the most reasonable interpretation of the jury verdict. E. If it should be determined instead that the verdict form left uncertainty about whether the jury found that property damage not arising from release or discharge of contaminants occurred during a policy period at one or more of the Cannons sites and that Fed. R.Civ.P. 49(a) therefore left this question to be decided by the trial judge, I find by a preponderance of the evidence received at the Phase-One Trial that the evidence shows no occurrence of property damage as defined in the contract at any of the sites other than the property damage at the Plymouth and Bridgewater sites identified in the jury verdict. I make this finding on the evidence, independently of my interpretation of the jury answers. My belief that my finding is consistent with the jury’s findings is reinforced, however, by the fact that the incidents on which the jury findings are most likely based are readily identifiable: leaks (the substan-tiality of which was disputed) in the seams of a storage tank at the Plymouth site in 1979-80 and (on disputed evidence) an original release of contaminants in 1980-81 at the Bridgewater site. Evidence was sufficient to support findings that each of these leaks discharged liquid waste materials into soil nearby but still on site. F. If a court were to accept the proposed Interex interpretation, the Verdict Form would have been deeply flawed in another respect. It would have been inadequate to tell the parties and the court whether it would be necessary, before determining final judgment, to address and resolve another unsettled question that has produced conflict among the states: If both covered and non-covered claims have been made or potentially made, are all the liability insurance companies that issued policies for different policy years to be held jointly and severally liable, under the duty to indemnify or the duty to defend, or both, for all of the remediation costs for all years, or is some principle of allocation among insurers and between insurers and the insured to be applied where some claims and potential claims are uncovered and others are covered? Because of this unsettled question, the In-terex argument for the sweeping judgment on the verdict that it has requested would have to be rejected even if all the other flaws in the Interex position, explained above, were overlooked. VI. The parties to this action disagreed on a number of relevant legal issues. Set out below are (A) key issues that could not be disputed under current Massachusetts precedents, (B) other issues that were disputed but were mooted by the jury findings in this ease, and (C) those issues of law that remain for this court to decide. A. Issues of Law Established in Massachusetts 1. Duty to Defend. The duty to defend is broader than the duty to indemnify. E.g., Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 318 n. 4, 458 N.E.2d 338 (1983), rev. denied, 391 Mass. 1102, 459 N.E.2d 826 (1984). The duty arises if a claim is made that potentially, even if not explicitly, states a claim that would be covered under the policy. That is, the insurer is obligated to defend if the allegations in the suit are “reasonably susceptible” of an interpretation that they state a claim covered by the policy. Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146, 461 N.E.2d 209 (1984). 2. “Sudden.” Unlike some other jurisdictions, Massachusetts has determined that the word “sudden” in the exception clause of the pollution exclusion is not ambiguous. See Lumbermens Mutual Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 555 N.E.2d 568, 572 (1990). In addition, the word “sudden” has a temporal quality and relates to the abruptness of the commencement of the discharge. See id.; see also Goodman v. Aetna Cas. & Sur. Co., 412 Mass. 807, 593 N.E.2d 233 (1992). 3. “Sudden and accidental.” In some jurisdictions, the courts interpret the phrase “sudden and accidental” from the standpoint of the insured. The Massachusetts Supreme Judicial Court has ruled that, in interpreting this phrase of the policy, the “point of view of the insured is immaterial.” Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 610 N.E.2d 912 (1993). Thus, if “a third person who discharged a pollutant did so intentionally, the pollution exclusion denies coverage, even to an innocent insured.” Id. 610 N.E.2d at 916. B. Issues of Law Mooted by Jury Find-inys 1. Choice of Law. The insured argued that New Hampshire law should be applied to legal issues in this case involving the two sites in Londonderry and Nashua, New Hampshire. The court did not, before submitting questions to the jury, determine whether the insured would prevail on this contention under the Massachusetts “flexible, multi-factor, interest-analysis” used for choice of law decisions. E.g., Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 442 (1st Cir.1985); see also A. Johnson & Co. v. Aetna Cas. & Sur. Co., 741 F.Supp. 298 (D.Mass.1990), aff'd 933 F.2d 66 (1st Cir.1991) (undertaking a similar choice of law analysis). After receiving the jury verdict, I have concluded that this question has now been rendered moot by the jury responses to Questions 2(e)(iii), 2(c)(iv), 3(c)(iii), 3(c)(iv), 4(c)(iii), 4(c)(iv), 5(c)(iii) and 5(c)(iv), in which the jury found that the two New Hampshire sites were not affected by the contested legal issues involving the pollution exclusion. Determining the final judgment for these two sites is a matter of contract interpretation under rules of law that do not differ in Massachusetts and New Hampshire (see Part VII below); therefore the choice of law for these two sites is irrelevant. The other two sites are both in Massachusetts, and Massachusetts law will be applied to decide the disputed legal questions involving these sites. 2. Timing of Occurrence. The insured argued that even in an “occurrence” policy, certain property damage that happened during the policy period should be covered by the policy, even if the occurrence that caused the damage happened before the policy period. In support of this proposition, the insured cited case law, which could conceivably be read to allow coverage for pre-policy occurrences. This legal question was rendered moot, however, by the jury responses to Questions 2(a)(2), 3(a)(2), 4(a)(2), and 5(a)(2). In each of these answers, the jury found that the property damage that they found was property damage caused by an occurrence that happened during the policy period. Thus there was no issue regarding a pre-policy occurrence for the court to resolve. 3. Viewpoint for “accidental.” Although Massachusetts law on this issue is clear, Interex requested jury findings on whether each discharge of pollutants was “accidental from the standpoint of the insured” (in addition to findings, which the court had determined it would ask for, as to whether each was “accidental from the standpoint of the person causing the discharge”). See Questions 2(c), 3(c), 4(c), and 5(c). These questions were arguably relevant to a decision under New Hampshire law, but this issue is now moot because under the jury findings, no coverage existed as to New Hampshire sites in any event and only Massachusetts law applies to coverage for claims and potential claims regarding the sites in Massachusetts. The application of Massachusetts law to the jury findings has been addressed to some extent in Part V above and will be addressed further in Parts VII and VIII below. C. Remaining Issues of Law The remaining issues center on the burden of proof for the “sudden and accidental” exception to the pollution exclusion. One question is this: When an insured is seeking indemnification, is the burden of proving that a release was “sudden and accidental” on the insured or on the insurer? A related issue is whether a different party has the burden of proof on “sudden and accidental” when the insured is seeking to enforce the duty to defend as distinguished from the duty to indemnify. The Massachusetts Supreme Judicial Court has not decided either of these questions. See Polaroid, 610 N.E.2d at 916, n. 7 (“[W]e need not decide whether the insurer or the insured has the burden of proof on the question of the sudden and accidental nature of any discharge.”). The only ruling the SJC has made on this subject is that when an insurer is in breach of its duty to defend, the burden of proving “sudden and accidental” is on the insurer. See id. at 922, n. 22. Whether Atlantic Mutual was at any time before the Phase-One Trial in breach of its duty to defend depends on the jury answers in this trial and the allocation of the burden of proof in this trial. This latter issue is considered next. VIL It is hornbook law that the insured has the burden of proving that its claimed loss falls within the coverage of the insurance policy. See 19 G. Couch, Couch on Insurance 2d § 79:315 (Rev. ed.) (1983). Once the insured meets this burden, the insurer must then bear the burden of showing that a policy exclusion eliminates coverage for the otherwise covered loss. See id. When an exclusion from coverage has an exception that partially restores coverage, authorities are split on which party has the burden of proving the exception. See, e.g., id. § 79:335 (stating that, in 1983, the burden of proving an exception to an exclusion was generally on the insurer, but that a minority view placed the burden on the insured). Taking account of recent developments, I conclude that the majority of state courts now place the burden on the insured as to the “sudden and accidental” exception from the pollution exclusion. See, e.g., St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195 (1st Cir.1994) (Rhode Island law); Aeroquip Corp. v. Aetna Cas. & Sur. Co., 26 F.3d 893 (9th Cir.1994) (California law); Northern Ins. Co. v. Aardvark Assocs., Inc., 942 F.2d 189 (3d Cir.1991) (Pennsylvania law); American States Ins. v. Mankato Iron & Metal, 848 F.Supp. 1436 (D.Minn.1993) (Minnesota law); Hudson Ins. Co. v. Double D. Mgmt. Co., Inc., 768 F.Supp. 1542 (M.D.Fla.1991) (Florida law); Covenant Ins. Co. v. Friday Engineering, Inc., 742 F.Supp. 708 (D.Mass.1990) (Massachusetts law, but citing case based on Maine law as the standard recognized in “this district”); A. Johnson & Co. v. Aetna Cas. & Sur. Co., 741 F.Supp. 298 (D.Mass.1990) (Maine law), aff'd 933 F.2d 66 (1st Cir.1991); Fireman’s Fund Ins. Co. v. Ex-Cell-O Corp., 702 F.Supp. 1317 (E.D.Mich.1988) (Michigan law). The minority view places the burden for proving “sudden and accidental” on the insurer. See, e.g., New York v. Blank, 27 F.3d 783 (2d Cir.1994) (New York law); New Castle Co. v. Hartford Acc. & Indent. Co., 933 F.2d 1162 (3d Cir.1991) (Delaware law); Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F.Supp. 1406 (D.Del.1992) (Connecticut law); United States Fidelity & Guar. Co. v. Morrison Grain Co., 734 F.Supp. 437 (D.Kan.1990) (Kansas law), aff'd 999 F.2d 489 (10th Cir.1993). These cases, in both the majority and minority camps, generally do not distinguish between the burden of proof for the duty to indemnify and the burden of proof for the duty to defend. Although the Supreme Judicial Court has not determined on which party the burden of proof rests under Massachusetts law, the Court of Appeals for the First Circuit has twice taken the position, when interpreting the laws of other states, that the burden of proof should fall on the insured. See St. Paul Fire & Marine Ins. Co., 26 F.3d 1195 (Rhode Island law); A. Johnson & Co. v. Aetna Cas. & Sur. Co., 933 F.2d 66 (1st Cir.1991) (Maine law). In choosing this position, the First Circuit reasoned: Once the insurer has established that the pollution exclusion applies, coverage depends on the applicability of the exception. Because the insured bears the burden of establishing coverage under an insurance policy, it makes sense that the insured must also prove that the exception affords coverage after the exclusion is triggered. Warwick, 26 F.3d at 1200. Or, stated another way, this allocation makes sense because it “aligns the burden with the benefit.” Aeroquip Corp., 26 F.3d at 895. In addition, if the burden were placed on the insurer, a property owner might then have the unfortunate incentive to remain ignorant about the cause of any release or discharge in order to increase the chance of coverage. It is not likely that Massachusetts courts would favor creating such an incentive. For these reasons, I conclude that, when the Supreme Judicial Court addresses this issue, it will decide that in Massachusetts, the burden of proving that a release was “sudden and accidental” rests with the insured. This is true whether the insured is seeking to enforce the duty to pay or the duty to defend, as there is no persuasive reason to distinguish between these different contexts in which this issue arises. Only if the insurer is already in breach of its duty to defend for some other reason will the burden shift to the insurer to prove both the exclusion and the exception to the exclusion. VIII. Applying this law to the jury’s findings, I conclude that judgment must enter for the defendant for the sites in Massachusetts because the plaintiff did not meet its burden of proof on the “sudden and accidental” exception to the pollution exclusion. The jury found that the plaintiff met its burden of proving, by a preponderance of the evidence, that the claimed loss was of a type within the general policy provisions. That is, the jury answered YES to the question: (1) Did one or more of the PRP letters, considered by itself or in combination with other PRP letters, make one or more claims against Interex based on property damage that happened during a policy period, and that was caused by an occurrence? See Jury’s Responses to Question 2(a)(1) (for the 1979-80 period) and 3(a)(1) (for the 1980-81 period). The jury also answered YES to the related questions, finding that there was also a potential claim of covered property damage. See Jury’s Responses to Questions 4(a)(1) (for the 1979-80 period) and 5(a)(1) (for the 1980-81 period). The jury then found, by answering YES to the following question, that the defendant, Interex, met its burden of proving that the covered loss at two sites was within the “pollution exclusion” from coverage: (2) [If you found a claim of property damage above,] was it property damage arising out of a discharge, dispersal, release or escape of waste materials or other pollutants into or upon land, water, or air of one of the [relevant] sites? See Jury’s Responses to Questions 2(b) (for the 1979-80 period) and Question 3(b) (for the 1980-81 period). The jury answered YES to this question and found that “this kind of property damage” occurred at Plymouth during the 1979-80 period (response to Question 2(c)(ii)) and at Bridgewater during the 1980-81 period (response to Question 3(c)(i)). The jury did not find that property damage of the generally covered type occurred at the other two sites. The jury made identical findings on the questions whether potential claims of covered losses were potentially ones that involved the discharge of waste materials into or upon land, water or air. That is, at Plymouth and Bridgewater the potential claims for covered losses that were for property damage of the generally covered type were also within the type to which the pollution exclusion applies. See Jury’s Responses to Questions 4(b), 4(c)(ii), 5(b) and 5(c)(i). The jury was then asked to find, for the Plymouth and Bridgewater sites, whether the claim, or a potential claim, was for property damage arising from a release that was “sudden” and was “accidental.” Because there is a dispute of law on the allocation of the burden of proof, the verdict form gave the jury a three-way option of finding YES by a preponderance of the evidence, finding NO by a preponderance of the evidence, or finding that there was not a preponderance of the evidence either way. The court instructed the jury that their answer had to be unanimous. They were not permitted to take the third option simply because they were not unanimous as to either of the others. Rather, if they could not arrive at a unanimous answer, they were to report that fact to the court rather than taking the third option as their answer. On the question whether the release at the Plymouth site was sudden, the jury found “NO, by a preponderance of the evidence.” See Jury’s Response to Question 2(c)(ii). This finding bars plaintiffs claim for indemnity coverage for the Plymouth site, because although property damage occurred, it was caused by a release or discharge of waste materials that was not sudden and accidental, and thus is excluded from coverage under the pollution exclusion. As a second ground of decision, I conclude that plaintiffs claim for indemnity at the Plymouth site is also barred by the jury’s finding that, by a preponderance of the evidence, the release was NOT “accidental from the standpoint of the person causing the discharge.” As explained above, in Massachusetts the relevant standpoint for evaluating “accidental” is the standpoint of the person who causes the discharge, not the standpoint of the insured. Thus the jury finding that the discharge was accidental from the standpoint of Interex is irrelevant, and plaintiffs indemnification claims for this site at Plymouth are barred because the releases were not accidental and thus were excluded from coverage under the pollution exclusion. On the potential-claim questions for Plymouth, the jury took the third option—<cWe find there is not a preponderance of the evidence either way”—on whether the release was sudden and on whether the release was accidental from the standpoint of the person causing the discharge. Answer to Question 4(c)(ii). Because the jury took the third option in answering 4(c)(ii), I must resolve the disputed issue of law regarding burden of proof. Based on my determination that, in Massachusetts, the insured has the burden of proving, by a preponderance of the evidence, that a claim was potentially for a release that was sudden and accidental, I conclude that plaintiffs claims for defense coverage are barred for failure to meet its burden of proof on both the “sudden” and the “accidental” components, as well as the combined “sudden and accidental” exception, to the pollution exclusion. For the generally covered type of property damage at the Bridgewater site, the jury again took the third option in answering Questions 3(e)(i) and 5(e)(i). That is, as to the releases at this site, they found that there was no preponderance of the evidence either way as to whether the release was “sudden” and “accidental.” For the reasons stated above, I conclude that plaintiff had the burden of proving “sudden and accidental.” The jury findings demonstrate that plaintiff failed to meet this burden for all claims for coverage. All of plaintiffs claims for coverage are therefore barred. IX. Interex included in its complaint against Atlantic Mutual a count for violation of Mass.Gen.L. ch. 93A. Under the order for Phase-One Trial, this count was tried before the court simultaneously with the jury trial, except that the court heard out of the presence of the jury evidence admissible in relation to the Chapter 93A claim but not in relation to the claims tried before the jury. I find that Interex has failed to meet its burden of proving a Chapter 93A violation. I find, as did the jury in its response to Question 8, that Atlantic Mutual had a reasonable basis for questioning the request for Atlantic Mutual to provide coverage for claims or potential claims asserted against Interex in the PRP letters. Also, I find that the conduct of Atlantic Mutual, though less forthcoming than it should have been if it had been presented with a forthright claim by a person or persons it knew to be officers or authorized attorneys for Interex, did not reach the level of “rascality” required under Massachusetts law for one commercial entity to establish a Chapter 93A claim against another commercial entity. See Anthony’s Pier Four, Inc. v. HBC Associates, 411 Mass. 451, 588 N.E.2d 806 (1991); see also Industrial General Corp. v. Sequoia Pacific Systems Corp., 44 F.3d 40, 45-46 (1st Cir.1995); Compagnie de Reassurance D’Ile de France v. New England Reinsurance Corp., 825 F.Supp. 370 (D.Mass.1993). Moreover, it is appropriate to evaluate the conduct of Atlantic Mutual in the context of the strikingly misleading conduct of Attorney Philip L. Comella, who was purporting to make a claim for Interex without ever offering to Atlantic Mutual any form of evidence from which Atlantic Mutual could determine what happened in the financial transactions that brought Cornelia’s employer into the picture and what had happened to the Inte-rex entity to which Atlantic Mutual had issued policies. This context strongly reinforces my finding that Atlantic Mutual’s conduct was not á deceptive act or practice under Chapter 93A. X. The Interex complaint also included a count alleging violation of the implied covenant of good faith and fair dealing. One aspect of this claim was submitted to the jury in Question 9(a), to which the jury answered that “Atlantic Mutual acted in violation of the implied covenant of good faith and fair dealing in responding to the request for coverage based on claims asserted in the PRP letters.” (Emphasis added.) Atlantic Mutual challenges the sufficiency of the evidence to support this finding. I regard this as a close and debatable issue but conclude I need not decide it. The reason is that in any event the Interex claim based on violation of the implied covenant of good faith and fair dealing fails for lack of a showing that the breach is of a kind and degree that would warrant the relief Interex seeks—a declaration of coverage—or that any other relief, such as damages, would be appropriate in the circumstances of this case. I have concluded, in earlier parts of this Opinion, that Atlantic Mutual is entitled to judgment against Interex on all the Interex claims for coverage, both as to indemnity and as to defense. Thus, Atlantic Mutual was responding to nonmeritorious requests for coverage. Obiter dictum in a Massachusetts judicial opinion suggests that this fact in itself may be enough to defeat the Interex claim as a matter of law. See Sarnafil, Inc. v. Peerless Ins. Co., 418 Mass. 295, 304, 636 N.E.2d 247 (1994). Even if it is not alone enough to defeat the claim, I determine that it is among the circumstances shown in evidence that, taken together, do so as a matter of law in this case. Among the other circumstances shown by the evidence are the indisputably less-than-forthcoming manner in which the request for coverage was first presented. Attorney Cornelia did not tell the whole story about his employer’s relationship to Interex and how it happened that the request for coverage was coming from an officer or attorney of another entity, not the policyholder entity, Interex, Inc. Whether or not a factfinder would be compelled to find that Attorney Comella was deliberately withholding information that he knew would have a bearing on Atlantic Mutual’s decisionmaking (an issue I do not decide), it is at least indisputable that information that would be regarded as material by any objectively reasonable decisionmaker in Atlantic Mutual’s position was not disclosed and that this nondisclosure made the request for coverage incomplete in a way that made it materially misleading. I do not suggest that this fact excused Atlantic Mutual’s less than diligent response. I do hold, however, that these circumstances weigh materially against awarding any relief in this case. As I stated to counsel in a conference shortly before submission of this case to the jury in the Phase-One Trial: the implied obligation of good faith and fair dealing is mutual, and if one side is withholding relevant information, that is relevant to what is reasonable conduct on the other side. It is also relevant, I conclude, to whether any remedy (even damages or some form of declaratory statement about the conduct) is appropriate when a jury has determined that the request for coverage was made on behalf of an insured entity that had no coverage under the policy in relation to the claims or potential claims for which it was requesting coverage. Even if there may be some circumstances in which a claimant who is pressing only nonmeritorious claims against an insurer may have some kind of remedy under Mass. Gen.L. ch. 93A or for breach of the implied covenant of good faith and fair dealing, Inte-rex has failed to show that this is such a ease. An additional circumstance of the present case is that Interex persisted in asserting that Atlantic Mutual was jointly and severally liable for the whole cost of defense while also asserting that Interex had a right to participate in controlling the defense, rather than turning it over to Atlantic Mutual alone, or to Atlantic Mutual jointly with other insurers. In short, Interex never offered to turn over the defense to Atlantic Mutual without attaching conditions it had no right to attach. Serious conflicts of interest among Interex, other alleged insurers for earlier policy periods, and Atlantic Mutual stood out like a sore thumb. Yet counsel for Interex sought to maintain control over the defense—thus holding a power to affect interests squarely in conflict with those of In-terex—while calling upon Atlantic Mutual to pay the entire defense costs. Serious and unsettled issues of law would have been presented by these circumstances had not the jury verdict made them moot. Nevertheless, the existence of these circumstances and potential problems were a matter that a reasonable representative of a liability insurer in Atlantic Mutual’s position could appropriately consider in responding to the request for coverage presented and pressed by Interex. Finally, it is a relevant factor that ordinarily breach without harm, at least when not willful—as the jury found in Answer 9(b)—is not actionable. See Sarnafil, Inc., 418 Mass. at 304, 636 N.E.2d 247. XI. A number of motions remain on the docket. The court reserved until trial its decision on plaintiffs motion in limine for a ruling on evidence (Docket No. 185). Objections were to be made when the evidence was presented at trial. This motion in limine is now moot in light of the court’s rulings during trial. Two other motions are now moot for the same reason: Docket No. 213, plaintiffs motion for a ruling on objections to the trial deposition of Dr. Rosenberg is moot in light of the court’s rulings on those objections at trial; Docket No. 216, defendant’s motion in limine to preclude evidence, is moot in light of the evidentiary rulings at trial. These motions will be dismissed as moot. The motion by defendant Atlantic Mutual for judgment as a matter of law (Docket No. 220) will be allowed to the limited extent set out in this opinion as an alternative ground of decision, and denied in other respects. Plaintiffs oral motion for a ruling as a matter of law (undocketed) will be allowed to the limited extent consistent with this opinion and denied in all other respects. Plaintiffs motion to bar submission of certain questions to the jury (Docket No. 221) was denied in substance during conferences on the verdict form and will now be dismissed from the docket. Plaintiffs motion to modify the charge to the jury (Docket No. 225) was allowed in part during the conferences on the charge and otherwise denied. It will now be dismissed from the docket. ORDER For the foregoing reasons, it is ORDERED: (1) Plaintiffs motion in limine for a ruling on evidence (Docket No. 185) is dismissed from the docket. (2) Plaintiffs motion for a ruling on objections to the trial deposition of Dr. Rosenberg (Docket No. 213) is dismissed from the docket. (3) Defendant’s motion in limine to preclude evidence (Docket No. 216) is dismissed as moot. (4) Defendant’s motion for judgment as a matter of law (Docket No. 220) is dismissed from the docket. (5) Plaintiffs oral motion for judgment as a matter of law is dismissed. (6) Plaintiffs motion to bar submission of certain questions to the jury (Docket No. 221) is dismissed from the docket. (7) Plaintiffs motion to modify the charge to the jury (Docket No. 225) is dismissed from the docket. (8) A scheduling conference is set for 2:00 p.m., February 2, 1995, to consider whether Final Judgment for defendant should now be entered and, if not, to schedule further proceedings essential to prompt final disposition. APPENDIX A Verdict 1. Concerning Any Claim of Insurance Coverage It is undisputed in this case that, at the time the insurance policy in evidence was issued by Atlantic Mutual Insurance Company (hereinafter called “Atlantic Mutual”) to a corporation having the name Interex Corporation (hereinafter called “Interex”), Interex was in existence and did have an office and place of business at the address shown on the policy. There is evidence before you that successive reorganizations of Interex occurred and that, after June 3, 1985, the same corporation (hereinafter called the “plaintiff corporation”) was still in existence but had different officers and a different name, Clean Harbors of Natick, Inc. (hereinafter called “Clean Harbors”). 1(a). Do you find that, at any time before the trial of this case began, any officer or agent of the plaintiff corporation who, at the time had authority to act for the plaintiff corporation in doing so, submitted to Atlantic Mutual the CERCLA PRP letters from the government agencies of the United States of America, Commonwealth of Massachusetts, and State of New Hampshire (hereinafter called “government agencies”) for the purpose of seeking coverage for the plaintiff corporation under a policy or policies of insurance issued by Atlantic Mutual? X YES _ NO If you answered NO to 1(a), skip to question 1(c). 1(b). If YES to 1(a), do you find that a person or persons then having authority to act for the plaintiff corporation provided to Atlantic Mutual information sufficient to enable Atlantic Mutual to verify that the plaintiff corporation was still in existence and that the request for coverage was made on behalf of the plaintiff corporation by an officer or agent who at that time had authority to act for the plaintiff corporation in making the request for coverage? X YES _ NO If you answered YES to 1(b), skip to question 1(d). 1(c). If NO to 1(b), do you find that Atlantic Mutual, before this trial began, obtained from any source information sufficient to enable Atlantic Mutual to verify that the plaintiff corporation was still in existence and that the request for coverage was made on behalf of the plaintiff corporation by an officer or agent who at that time had authority to act for the plaintiff corporation in making the request for coverage? _ YES _ NO If you answered NO to 1(c), skip to question 1(e). 1(d). If YES to either 1(b) or 1(c), at each of the times stated below, did Atlantic Mutual have information sufficient to enable it to verify that the plaintiff corporation was still in existence and that the request for coverage was made on behalf of the plaintiff corporation by an officer or agent who at the time of the request had authority to act for the plaintiff corporation in making the request? On or about May 13, 1986 X YES NO On or about January 15, 1987 X YES NO On or about May 1, 1987 X YES NO On or about June 8, 1988 X YES NO 1(e). Do you find that before the PRP letters were sent to Atlantic Mutual by Chemical Waste Management, Inc., in 1986, Clean Harbors had agreed with Chemical Waste Management, Inc. that Chemical Waste Management Inc. would have authority to act for Clean Harbors for the purpose of requesting insurance coverage in the name of Interex? X YES _ NO 1(f). Do you find that Atlantic Mutual’s conduct caused plaintiff corporation not to provide information in support of a request for coverage made to Atlantic Mutual and that plaintiff corporation otherwise would have provided the information if plaintiff corporation had not justifiably relied on a belief that Atlantic Mutual had indicated that no more information was needed? X YES _ NO 1(g). Did Atlantic Mutual intentionally give up a known right to deny coverage to Interex? X YES _NO Concerning Any Property Damage in the 1979-80 Policy Period 2(a)(1). Did one or more of the PRP letters, considered by itself or in combination with other PRP letters, make one or more claims against Interex that you find to be based on property damage that happened during the period from noon on December 29, 1979 to noon on December 29, 1980, and that was caused by an occurrence? X YES _NO If you answered NO to 2(a)(1), skip to question 3. 2(a)(2). If YES to 2(a)(1), did the occurrence that caused the property damage happen after noon on December 29, 1979? X YES _NO 2(b). If YES to 2(a)(1), was it property damage arising out of the discharge, dispersal, release, or escape (hereinafter called “release” or “discharge”) of waste materials or other contaminants into or upon land, water, or air of one of the Cannons sites? X YES _NO If you answered NO to 2(b), skip to question 2(d). 2(c). If YES to 2(b), at which site or sites did this kind of property damage occur? (i) Bridgewater _ YES X NO If YES, did it arise out of a release: — that was sudden? _We find YES by a preponderance of the evidence. __We find NO by a preponderance of the evidence. _We find there is not a preponderance of the evidence either way. — that was accidental from the standpoint of Interex? ._We find YES by a prepo