Full opinion text
RULING ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc Nos. 499, 505) ARTERTON, District Judge. I. INTRODUCTION This environmental insurance coverage action is brought by United Technologies Corporation and its subsidiaries, plaintiffs Carrier Corporation and United Technologies Automotive (collectively, “UTC”) against its insurer, American Home Assurance Company (“AH”) for breach of contract, breach of the Connecticut Unfair Insurance Practices Act, and breach of the common law duties of good faith and fair dealing. The action is based on AH’s failure to provide insurance coverage to UTC for contamination of the soil, groundwater and surface water at eight properties. In addition, UTC seeks a declaratory judgment as to coverage at 32 other sites. The parties are generally in agreement regarding the applicable policy provisions, however, they disagree on many policy interpretation issues. UTC filed a partial motion for summary judgment on several of these policy interpretation issues. AH filed a motion for summary judgment on several defenses and policy interpretation issues. II. BACKGROUND UTC designs and manufactures high technology products throughout the world. As a result of its manufacturing operations and hazardous waste disposal practices, the soil, groundwater and/or surface water at several of UTC’s plant sites, including City of Industry, California (“COI”), and Windsor Locks, Connecticut (“WL”), have been contaminated. AH issued three consecutive all-risk property insurance policies to UTC, covering the period from November 17,1975 to November 1,1986 (collectively, the “Policies”). The Policies provide coverage for UTC property world-wide. UTC purchased the Policies through its broker, Johnson & Higgins (“J & H”). J & H has offices in Connecticut (“J & H CT”) and New York (“J & H NY’). In its First Amended Complaint, UTC alleges that, in accordance with the Policies, AH must compensate UTC for the soil, groundwater and surface water contamination at WL and the groundwater and soil contamination at COL Specifically, UTC alleges AH breached the Policies by failing to reimburse UTC for the expenses incurred, while investigating, remediating and monitoring the contamination. UTC alleges that AH’s failure to pay UTC’s claim is a breach of contract. Further, UTC contends that AH’s claims handling conduct and refusal to pay the claims constituted a breach of the duties of good faith and fair dealing, and violated the Connecticut Unfair Insurance Practices Act (“CUIPA”). A. Windsor Locks Since the 1950s, UTC has designed and manufactured air and spacecraft control systems at WL. In addition, UTC operated an industrial waste treatment plan at WL from 1953 through 1992. As a result of long term hazardous waste disposal practices and manufacturing operations, the soil, groundwater and surface water at WL have been contaminated by chromium, volatile organic compounds (“VOCs”) and polychlorinated biphe-nyls (“PCBs”). The contamination was the result of a variety of practices and operations in several locations throughout' the WL property. Some of the sources of the contamination include: 1. From 1953 to 1970, chromium leaked from a concrete, underground storage tank. In August, 1970, the leak was discovered and the tank was repaired; 2. From 1975 to 1982, chromium and VOCs were released when UTC began consolidating all of the drums used to store hazardous material. During this time, the storage drums were accidentally dropped, knocked over, and punctured by forklifts; 3. Beginning in the 1950s, chromium and VOCs were released from drums which were stored outside for future use or removal by scrap metal dealers; 4. From the early 1950s through 1968, VOCs and PCBs were released when UTC allowed part of the WL property to be used for fire training exercises which involved the controlled burning of waste oils, solvents and fuels; 5. From the 1950s through the 1970s, VOCs and PCBs were released as a result of UTC’s handling and disposal practices, including the disposal of waste solvents and metal hydroxide sludge by burial or direct release into sandy soil or a natural ravine; 6. From the 1950s through the 1960s, repeated pump seal failures caused PCBs to be released into the soil. Despite these hazardous practices, UTC claims it was unaware that its land was contaminated until October, 1979, when a tornado struck Windsor Locks, Connecticut. Soon thereafter, residents located south of the WL property complained of problems with their water. Consequently, from May through August 1980, the town of Windsor and the Connecticut Department of Health collected samples from residential wells and discovered that several of the wells were contaminated with VOCs. Prompted by this discovery, the Connecticut Department of Environmental Protection (“CTDEP”) issued order number 2925, dated November 4, 1980, requiring UTC to (i) investigate the extent and nature of the groundwater contamination; (ii) provide treatment and/or removal of contaminated groundwater and soil; and (iii) investigate and implement any improvements to chemical storage and handling areas. As a result of this investigation, UTC discovered chromium and VOC contamination migrating from its property to the south. In compliance with Order No. 2925, UTC attempted to remediate the contamination by removing 127 buried drums and the sod surrounding the drums. In addition, UTC installed test wells to evaluate onsite sources of contamination. After further investigation, the CTDEP issued two additional clean up orders. Order No. HM-160 dated May 14, 1984, required UTC to close its hazardous waste surface impoundments and implement a groundwater monitoring program. Order No. HM-170 dated May 31, 1984, required UTC to (i) investigate the extent and degree of contamination resulting from the disposal of hazardous waste at an inactive landfill sludge disposal area; and (ii) prepare a comprehensive hydrogeologic and engineering report explaining the extent and degree of contamination resulting from the landfill and identifying remedial measures necessary to control the contamination. On April, 11, 1986, UTC gave its liability insurer, Liberty Mutual, written notice of a potential claim at WL. However, UTC admitted in an earlier proceeding that Liberty Mutual received actual notice of the CTDEP orders no later than July 27, 1982, during an environmental audit of the WL site. See Plaintiffs Pretrial Statement, United Technologies Corp. v. Liberty Mutual Ins. Co., No. 87-7172 (Mass.Super.Ct. August 3, 1993). On August 8,1986, UTC entered into Consent Order No. 4402 with the CTDEP. Pursuant to this Order, UTC was required to investigate the extent of groundwater and surface water contamination and provide treatment, containment and/or removal of contaminated groundwater and soil as necessary to eliminate or minimize existing groundwater contamination. UTC gave AH notice of the loss and damage at the WL site, at the earliest, on December 24, 1987, when it served AH with a complaint naming it and numerous other insurance companies as defendants. United Technologies Corp. v. Liberty Mutual Insurance Co., No. 87-7172 (Mass.Sup.Ct.1987). On August 18, 1989, the United States Environmental Protection Agency (“EPA”) executed a Consent Agreement and Order RCRA 1076. In accordance with this order, UTC agreed to evaluate the nature and extent of the hazardous waste releases at WL and to conduct a corrective measures study. As a result of these investigations, UTC has taken remedial action at WL, including the preparation of numerous site assessment reports, work plans, testing and analysis of the contaminated property and excavation and disposal of contaminated soil and budding materials. B. City of Industry UTC manufactured air conditioning and heating products at the COI facility from 1979 to 1992. The principal substance at issue in plaintiffs insurance coverage claim at COI is perchloroethylene (PCE). PCE is a degreasing agent utilized by UTC in its manufacturing process to degrease and clean metal parts. Between November 1984 and April 1985, PCE spilled from a degreaser into a below-ground sump located beneath the degreaser system. On or about April 24, 1985, UTC discovered that corrosion-caused holes in the sump had allowed the PCE to discharge into the soil and groundwater. UTC notified its liability insurer, Liberty Mutual, of the loss on May 17, 1985. On March 7,1986, the California Regional Water Quality Control Board issued Cleanup and Abatement Order No. 86-1, which required UTC to “clean up and abate the effects of PCE discharge to soil and groundwater.” In accordance with this order, UTC prepared site assessment reports, work plans, groundwater and soil testing and removed the sump. UTC provided AH with notice of the contamination at the COI site at earliest, on July 20, 1987, when UTC sent AH a letter about a potential loss. III. STANDARD FOR SUMMARY JUDGMENT MOTIONS In a motion for summary judgment, the moving party must initially demonstrate that there are no material facts in dispute and “[a]ll reasonable inferences and any ambiguities are drawn in favor of the non-moving party.” Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Once the moving party has met its burden, “the non-moving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in his favor.” Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995); Celotex Corp. v. Catrett, 477 U.S. 317, 332, 106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986). If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper. Finley v. Giacobbe, 79 F.3d 1285, 1291 (2d Cir.1996). However, “a party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials ' of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (quoting First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). IY. CHOICE OF LAW A federal court sitting in diversity must apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Mentor Ins. Co., Ltd. v. Brannkasse, 996 F.2d 506, 513 (2d Cir.1993). Accordingly, Connecticut choice of law principles must be applied to this case. See Economu v. Borg-Warner Corp., 652 F.Supp. 1242, 1246 (D.Conn.1987). A. Choice of Law for the Breach of Contract Claim When analyzing a contractual choice of law issue, Connecticut courts have traditionally applied the doctrine of lex loci contractus. See, e.g., Whitfield v. Empire Mut. Ins. Co., 167 Conn. 499, 506, 356 A.2d 139 (1975). Under this doctrine, “the validity and the construction of a contract are determined by the law of the place where the contract was made. But, if the contract is to have its operative effect or place of performance in a jurisdiction other than the place where it was entered into... the law of the place of operative effect or performance governs its validity and construction.” Id. at 505-06, 356 A.2d 139. Recently, however, some Connecticut superior courts have applied the “significant relationship test” advanced in the Restatement (Second) Conflicts of Law to determine the appropriate substantive law to be applied to a contract dispute. See e.g. Carrier Corp. v. Home Ins. Co., 43 Conn.Supp. 182, 648 A.2d 665 (1994); Reichold Chemical, Inc. v. Hartford Accident and Indemnity Co., Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 351982 (February 24, 1993). In light of these superior court decisions, Connecticut federal judges have opined that where the lex loci doctrine would produce an arbitrary or irrational result the Supreme Court of Connecticut would apply the Second Restatement in a contract context. See Brandewiede v. Emery Worldwide, 815 F.Supp. 60, 63-64 (D.Conn.1992). Under lex loci contractus, the Court must determine where- the Policies were made. Whitfield, 167 Conn, at 505-06, 356 A.2d 139. The undisputed facts show that the Policies were made in Connecticut! Under Connecticut law, a contract is deemed to have been made where the last act is done which is necessary to create an effective agreement between the parties. See Chemical Trading, Inc. v. Manufacture de Pro- duits Chimiques de Touman, 870 F.Supp. 21 (D.Conn.1994); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550, 555 (D.Conn.1968) (citing authority). Here, the last act necessary to complete the Policies occurred in Connecticut when AH’s signing agent for the state of Connecticut countersigned the Policies on behalf of AH. Accordingly, under the lex loci doctrine, Connecticut law will apply unless the Policies were performed or had their operative effect elsewhere. Brandewiede, 815 F.Supp. at 63; Whitfield, 167 Conn, at 505-06, 356 A.2d 139. The payment of premiums is a significant act of performance. Teleco Oilfield Services, Inc. v. Skandia Ins. Co., Ltd., 656 F.Supp. 753, 759-60 (D.Conn.1987) (Zampano, J.). In Teleco, the district court found that the premiums were paid in Connecticut because the plaintiff mailed its premiums from Connecticut to a Scandinavian broker. Here, it is undisputed that premium checks were sent in the following manner: UTC sent payment to J & H CT who forwarded the payment to J & H N.Y. who remitted the payment to AH in New York. Thus, in accordance with Teleco, premiums were paid in Connecticut when UTC mailed its premium cheek to J & H CT. Under Connecticut law, another relevant contact for purposes of determining the place of performance occurs when the insured receives payment for a claim. See Teleco, 656 F.Supp. at 759-60; see also Reichold, slip op. at 8. The Teleco court found that claims were paid in Connecticut because the insurance company sent any payments to the insured in Connecticut. 656 F.Supp. at 759-60. It is undisputed that claim payments were made in the following manner: AH sent payment to J & H N.Y. who forwarded it to J & H CT who then forwarded it to UTC in Connecticut. Thus, in accordance with Teleco, the claims were paid in Connecticut because UTC received payment in Connecticut. The Policies had their “operative effect” at UTC’s property worldwide. Here, UTC is challenging AH’s insurance coverage at more than forty locations in thirteen states. New York has only one site in UTC’s claim. Connecticut, with eight sites named in the corn-plaint, is tied with New Jersey for the state with the most sites. Application of Connecticut law will not produce an arbitrary or irrational result warranting a deviation from the lex loci approach. Plaintiff’s headquarters are. in Connecticut, communication from AH went, although somewhat indirectly, to Connecticut, and communications to AH came from Connecticut. The Policies required UTC to give notice of a loss under the Policies to J & H’s Connecticut office. Moreover, it is clear from the face of the Policies, which display UTC’s Connecticut address, that AH could reasonably have anticipated application of Connecticut law. Brandewiede v. Emery Worldwide, 815 F.Supp. at 64. AH claims that application of Connecticut law will frustrate the parties’ expectation that New York law would apply. As evidence of this expectation, AH notes that the Policies contain a provision referring to New York law to establish the time period for bringing a suit. However, AH fails to present this Court with any authority to support its proposition that a reference to state law for purposes of establishing the. period in which to bring an action constitutes a choice of law provision. See Carrier Corp. v. Home Ins. Co., 43 Conn.Supp. 182, 189, 648 A.2d 665 (1994); Sonoco Bldgs. Inc. v. American Home Assur. Co., 877 F.2d 1350, 1352 (7th Cir.1989). B. Choice of Law for Tort Claims In addition to its contract action, UTC’s complaint alleges that AH violated CUIPA and breached the common law obligation of good faith and fair dealing. These tort actions derive from UTC’s allegation that AH engaged in unfair claims handling practices. The parties agree that Connecticut law applies the “significant relationship test” advanced in the Restatement (Second) to choice of law issues in tort actions. See e.g. O’Connor v. O’Connor, 201 Conn. 632, 648, 519 A.2d 13 (1986). AH argues that application of this test will reveal New York law applies, while UTC argues that it will reveal Connecticut law governs. Under the significant relationship test, the applicable law is that of the state with the “most significant relationship to the occurrence and the parties under the principles stated in § 6.” See Restatement (Second) Conflicts of Law, § 145. The contacts relevant to the “significant relationship test” are: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” Id. In addition, the court may consider the policies outlined in § 6 of the Restatement.' AH argues that New York law should apply because the conduct causing the injury, the “claims handling,” occurred in New York. The Court finds this argument unpersuasive because AH has failed to contradict the evidence UTC produced indicating that the claims handling for UTC’s environmental claims occurred in New Jersey. AH also argues that one of the factors listed in § 6 favors New York law because it will provide “certainty, predictability or uniformity of result.” However, AH fails to support this argument with any legal or factual authority. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. Neither criteria (c) the place of business of the parties, nor (d) the place where the relationship between the parties is centered, are helpful to the Court’s analysis. Factor (e) is not determinative because the parties’ principal places of business are located in Connecticut, Michigan, and New York. Factor (d) is not determinative because the relationship between the parties is centered in New York and Connecticut. The first contact relevant under the significant relationship test, place of injury, supports application of Connecticut law because UTC received notice of the status of its claims in Connecticut. In addition, one of the factors listed in § 6, ease in determining the applicable law, favors application of Connecticut law because it is the law of the forum. Crellin Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1, 12, (1st Cir.1994). Accordingly, the Court will apply Connecticut law to the contract and tort claims. V. DISCUSSION A. Summary of Holding With respect to UTC’s motion for summary judgment, the Court concludes: (1) In accordance with the lex loci contrac-tus doctrine, Connecticut law applies to the contract claims because the Policies were made in Connecticut and were performed in Connecticut. Further, application of Connecticut law will not produce an arbitrary or irrational result. The tort claims will also be governed by Connecticut law because it is the state with the “most significant relationship to the occurrence and the parties” as provided under the Restatement (Second) Conflicts of Laws. (2) Contamination is a covered peril under the “all risk” property Policies because it was not specifically excluded. (3) Because UTC sustained a pecuniary loss as a result of the contamination of the soil and water at WL and COI, UTC has an insurable interest in such property. (4) The plain meaning of the term “real property” within the meaning of the Policies includes soil and water. (5) There was physical loss and damage to the WL and COI property. However, the determination as to whether all of the damages claimed by UTC involve damage to UTC’s own property or that of third parties is a disputed issue properly resolved at trial. (6) AH does not dispute that the loss at COI occurred during the policy in effect from 1981-1986. Under the multiple injury in fact trigger, a material dispute exists as to whether the losses at WL occurred during the Policies. (7) UTC is not entitled to judgment as a matter of law on its CUIPA claims because there is a dispute of material fact regarding whether AH’s “general business practice” violated CUIPA. (8) UTC’s motion for summary judgment on its claim of bad faith is denied because there is a dispute regarding whether AH’s alleged failure to fulfill its contractual obligation under the Policies was the result of AH’s conduct or UTC’s failure to cooperate with AH’s investigation. With respect to AH’s motion for summary judgment, the Court concludes: (1) UTC’s notice to AH of the claims at WL and COI was untimely as a matter of law. However, there is a genuine dispute as to whether UTC can rebut the presumption of prejudice to AH. (2) The groundwater at COI is not covered under the Policies because its transient nature is inconsistent with the purpose of property insurance policies, which only cover damage to the insured’s own property (3) Because there is a dispute of fact as to whether UTC knew its operating practices were likely to result in hazardous soil and water contamination, the determination of whether the losses were fortuitous is properly resolved at trial. (4) The loss in progress doctrine does not preclude coverage unless the insured was aware of a loss when it applied for the insurance. UTC’s subjective knowledge at the time it applied for the Policies is a disputed issue of material fact. (5) The contamination at COI and the chromium damage at WL are “ensuing losses” and therefore are not excluded under the Policies’ exclusion for damage caused by ordinary wear and tear or gradual deterioration. Alternatively, summary judgment is inappropriate because there is a genuine dispute as to whether the chromium damage at WL was the result of “gradual” deterioration or if it happened rather quickly. There is also a dispute as to whether the loss at COI were the result of “ordinary wear and tear” or a design defect. (6) In the absence of a clear statute of limitations provision, the New York six year limitation for contract actions applies. Whether the action for WL was brought within six years is disputed and is properly resolved at trial. B. Untimely Notice. In its motion for summary judgment, AH argues that there is no genuine dispute that UTC failed to give AH timely notice of the claims at WL and COI, a condition precedent to coverage under the Policies. Aetna Cas. & Sur. Co. v. Murphy, 206 Conn. 409, 417, 538 A.2d 219, 223 (1988). Under Connecticut law, an insured may pursue its claim against an insurer, despite giving late notice, if the insured can rebut the presumption that the insurer was prejudiced by late notice. Id. The Murphy court explained that the purpose of a notice provision is to provide the insurer an opportunity for “a timely and adequate investigation of all the circumstances,” so that “reasonable compromises and settlements may be made, thereby avoiding prolonged and unnecessary litigation.” Id. If the insured fails to notify its insurer of a claim within a reasonable time, the insurer’s ability to conduct an adequate investigation may be hindered because of loss of memory on the part of witnesses, the loss of opportunity for examination of the physical surrounding, and the possible operation of fraud. 8 John A. Appleman & Jean Appleman, Insurance Law & Practice, § 4731, at 2-5 (1981). ■ In order for AH to prevail on its motion for summary judgment, AH must prove that there is no genuine issue of material fact that (a) UTC did not give AH timely notice of its claim; and (b) UTC is unable to rebut the presumption of prejudice to AH. 1. Was UTC’s Notice Reasonable Under The Circumstances? The Policies required UTC to notify AH “as soon as practicable” of any “loss occurring under the .policy.” Connecticut courts have interpreted “as soon as practicable” to mean “as soon as reasonably can be expected.” Silver v. Indemnity Ins. Co. of North America, 137 Conn. 525, 528, 79 A.2d 355 (1951). “The duty to give notice does not arise unless and until facts develop which would suggest to a person of ordinary and reasonable prudence that liability may have been incurred, and is complied with if notice is given within a reasonable time after the situation so assumes an aspect suggestive of a possible claim for damages.” Id. Whether an insured gave notice to an insurer as soon as practicable is a question of law when evidence is undisputed. Id. at 529, 79 A.2d 355. UTC notified AH-of a potential claim at the WL site, at earliest, on December 24, 1987, seven years after the CTDEP issued its first clean up order. UTC notified AH of a potential claim at COI, at earliest, on-July 20, 1987, more than two years after it discovered the contamination and more than a year after the first clean up order was issued by California Regional Water Quality Control Board. AH contends that notice was unreasonably late because UTC notified its liability insurer, Liberty Mutual of potential claims at WL a year and eight months before it gave notice to AH and at COI two years and two months before it notified AH. UTC argues that it is improper to compare the notice given to Liberty Mutual and that given to AH because there are distinctions between Liberty Mutual’s liability policies and the all-risk property policies issued by AH. As UTC’s liability insurer, Liberty Mutual agreed to defend UTC against claims from third parties, including administrative actions initiated by the government. Under its policies with Liberty Mutual, UTC had a duty to notify Liberty Mutual when it was aware of potential liability from the state and federal environmental agencies in order to give Liberty Mutual the opportunity to defend UTC. The AH Policies do not include a similar duty to notify AH of potential claims. Moreover, AH does not have a duty to defend UTC against claims from third parties. The Policies require UTC to notify AH when UTC’s Home Office knows of a loss occurring under the Policies. See supra n. 5. UTC argues that under the circumstances, notice was not unreasonable because the losses and damages “were not immediately apparent and ascertainable, particularly by a home office insurance department far removed from day to day activities at individual sites.” However, UTC cannot escape the notice requirement by failing to inform its Home Office of a potential loss. In re Texas Eastern Transmission Corp. PCB Contamination Ins. Coverage Litig., 870 F.Supp. 1293, 1360, n. 98 (E.D.Pa.1992), aff'd in part, 15 F.3d 1230 (1994), cert. denied, 513 U.S. 915, 115 S.Ct. 291, 130 L.Ed.2d 206 (1994). The policy requirement that the Insurance Department be informed of the claim or occurrence must be read to include a duty on [the insured] to make its Insurance Department aware of relevant corporate activities. Otherwise, insureds could easily build “Chinese walls” around their insurance departments for the sole purpose of defeating insurance carrier defenses to coverage. UTC had a duty to notify AH within a “reasonable time” after the situation at WL and COI suggested a possible claim for damages. Silver, 137 Conn, at 528, 79 A.2d 355. In order to determine whether UTC acted reasonably under the circumstances, it is necessary to determine when UTC knew about the losses at each site. a. Windsor Locks As discussed above, UTC’s hazardous waste disposal practices and manufacturing operations contaminated the soil, groundwater and surface water at WL. UTC argues that the losses associated with the various areas of contamination changed and evolved over time as the investigations into the property damage progressed. (Pl.Resp.App.Exh. 20.) Thus, UTC argues that under the circumstances, it was reasonable to wait to notify AH until it was sure that the $200,000 deductible was exceeded for each loss. UTC, however, does not dispute that, in the past, it routinely provided AH with prompt notice of losses, regardless of whether they reached the $200,000 deductible. Even assuming that the deductible is a relevant consideration in determining when to give notice, UTC’s erroneous belief that the losses at WL would not exceed the deductible will not render a delay of up to seven years reasonable. “[N]either the negligence nor the mistakes of the insured, if not caused by any act of the insurer, will excuse noncompliance with contractual requirements.” 13 Couch on Insurance § 49:53 (1982). The only exception to this rule applies if the insured can show that it “exercised due diligence and reasonable care in ascertaining that there was coverage under the policy.” 46A C.J.S., Insurance, § 1248, at 77; In Edwards v. Ranger Ins. Co., 456 S.W.2d 419 (Tex.Civ.App.1970), the court found that a' forty six day delay in giving notice was untimely. The insured, whose aircraft insurance policy had a $250 deductible, argued that the delay was not untimely because he believed that the cost of repairing the damaged aircraft would not exceed $250. Id. at 421. The eourt was unimpressed finding that “a policyholder who fails to give notice of [an] accident has the full duty of investigating it, and if, in the light of a full investigation, information is not obtained precluding every reasonable hypothesis that there was injury or damage (as to which the policy had application) resulting therefrom, he will not be relieved of compliance with the provisions of the policy relating to prompt notification.” Id. During the seven years between the initial discovery of contamination at WL and the date UTC notified AH, four governmental orders were issued requiring UTC to remediate the contamination at WL. Although UTC appears to have devoted substantial effort to comply with the governmental orders, UTC failed to fulfill its duty to exercise due diligence and reasonable care in ascertaining whether the situation suggested a possible claim for damages. Silver, 137 Conn, at 528, 79 A.2d 355. UTC’s uncertainty that the deductible would not be met will not excuse its delay in providing notice. Accordingly, notice of the damage at WL was untimely as a matter of law. b. City of Industry The parties do not dispute that UTC spent $1,479,839.66 in “site investigative costs” from August 1985 to July 1987, when it gave AH notice. (PI. Response to Material Facts Not In Dispute, ¶ 122.) Thus, UTC had substantially exceeded its $200,000 deductible before giving notice to AH. UTC claims that it was not certain how much of these costs would not be covered by its liability insurance. Because of this uncertainty, UTC contends that it did not believe there would be a claim under the Policies. As discussed above, an insured’s erroneous belief that it would not need coverage, if not caused by the insurer, will not excuse the insured from complying with the notice requirement. Further, as demonstrated by UTC’s past practice and the case law, an insured’s duty to give notice does not arise when it is certain to have a claim, but rather, the duty arises, when the insured is aware of circumstances suggestive of the possibility of a claim. Silver, 137 Conn, at 528, 79 A.2d 355. The Policies require notice “as soon-as practicable.” This does not allow UTC to give notice when it strategically decides to or when it has no other alternative. To allow the insured to delay notice hinders the insurer’s ability to investigate and set reserves within the scope of coverage and is inconsistent with a common sense meaning of the policy’s language, as well as UTC’s apparent practice in other instances. The Court holds that notice of the claim at. COI was unreasonably late as a matter of law. 2. Did AH Waive the Notice Requirement? In its opposition to AH’s motion for summary judgment, UTC contends that AH is precluded from arguing that notice was untimely because AH, once having received notice, failed diligently to conduct its investigation and make a coverage determination. The cases UTC cites to support its contention that AH waived the notice requirement by its claims handling practices are factually distinguishable because they involved insurance companies that regularly denied claims without conducting investigations or that failed to get involved with the insured’s investigation. Travelers Ins. Co. v. Central Nat’l Ins. Co. of Omaha, 733 F.Supp. 522, 531 (D.Conn.1990); Maryland Cas. Co. v. Wausau Chem. Corp., 809 F.Supp. 680, 695 (W.D.Wis.1992). Here, it. is undisputed that AH never denied coverage for the claims and AH made numerous requests to UTC for information necessary to evaluate the claim. Furthermore, AH contends that it was UTC’s conduct that hindered its ability to “get involved with the insured’s investigation.” Finally, there is some support for AH’s assertion that it preserved its late notice defense. UTC’s domestic property manager, Harold Packman, testified that AH “immediately” informed him that there was a potential problem with untimely notice. See National Union Fire Ins. Co. v. Mastroni, 754 F.Supp. 269, 272 (D.Conn.1990) (no waiver of right to disclaim coverage based upon breach of a policy condition when insurer reserved its right to disclaim coverage). In light of the above, the Court cannot find as a matter of law that AH waived the notice requirement. 3. Was AH Prejudiced by Late Notice? AH contends that its ability to investigate the claims at WL and COI was prejudiced because before it received notice (a) physical evidence and documents were destroyed; (b) important witnesses died or their memories dimmed; (c) UTC spent substantial money to comply with government mandates; and (d) the physical appearance of the sites changed. Thus, AH argues that UTC cannot establish any genuine issue of material fact to rebut the presumption of prejudice. See Olin Corp. v. Insurance Co. of North America, 771 F.Supp. 76 (S.D.N.Y.1991), aff'd, 972 F.2d 1328 (2d Cir.1992). AH’s argument that it was prejudiced because UTC entered into consent decrees with several government agencies and spent substantial money cleaning the contamination before notifying AH fails to recognize the distinction between property insurance and liability insurance. See supra n. 5. The cases finding that these activities prejudiced the insurer involved liability insurance policies which specifically provided that the insurer had the right to be involved in the defense of any claim which may create liability for the insurer under the policy. See, e.g., Fireman’s Fund Ins. Co. v. ACC Chem. Co., 538 N.W.2d 259, 263 (Iowa 1995). AH, as an all-risk property insurer, did not have any such right under the Policies and therefore was not prejudiced by these activities. The Policies cover all risks of loss except those that are specifically excluded. In order to determine whether UTC’s property was damaged by an excluded peril, AH must be able to determine the source of the contamination. AH argues that it was prejudiced because its ability to reconstruct the cause and timing of the specific contaminating events was hindered by the late notice. According to AH, the physical attributes of the COI and WL properties were changed; in addition, many of the practices that caused the contamination have long been discontinued and witnesses with knowledge of the contaminating events are dead, unavailable or no longer remember important information. Furthermore, AH argues that it was deprived of the opportunity to investigate the COI facility and events occurring at the plant, including the ongoing monitoring and remediation activities in 1985, when such investigation would have been meaningful. UTC argues that AH’s ability to investigate the loss at WL and COI has not been prejudiced because the numerous reports prepared by the government and engineers give AH a full and accurate understanding of the damage at WL and COI. AH has received 20 engineering reports on COI and 34 on WL documenting the damage and potential causes of the contamination, many of which were prepared shortly after each individual area of contamination was identified. Moreover, UTC contends that AH’s claim of prejudice is specious because at least three of the nine witnesses identified by AH died “well after” AH was notified of the claim and any potential testimony of the other of the witnesses has been developed at length by other witnesses or reports. Finally, UTC argues that AH is not prejudiced by any missing documents or alteration of the physical site because AH is adequately protected by the abundance of evidence available. See Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 89 F.3d 976 (3d Cir.1996), cert. denied,—U.S.-, 117 S.Ct. 485, 136 L.Ed.2d 379 (1996) (denying insurer’s claim that it was prejudiced because witnesses had died and evidence was lost because there was a wealth of relevant documentary evidence and the site designer was available for cross examination); Hartford Postal E.F.C.U. v. Colonial Penn Ins. Co., 1995 WL 79811 (Conn.Super. Feb 9, 1995). In Aetna Cas. & Sur. Co. v. Murphy, the Connecticut Supreme Court noted that the determination of prejudice requires a factual inquiry. See Murphy, 206 Conn, at 417-18, 538 A.2d 219. Thus, the question of prejudice is properly left for the finder of fact unless the facts are undisputed. See Appleman, supra § 4746, at 198-199. Here, a triable issue of fact exists as to whether UTC’s evidence adequately rebuts the presumption of prejudice. Although AH has presented substantial evidence of changes that have occurred at the sites and of witnesses who are no longer available, AH does not explain how it is prejudiced by the missing information or witnesses. For purposes of summary judgment, it is not sufficient for AH to merely state it was prejudiced without specifically identifying how it was prejudiced and articulating with greater precision why UTC’s documentation is insufficient to cure such prejudice. AH’s general reference to having difficulty reconstructing the cause of the contamination is insufficient to establish the necessary causal relationship. Although UTC’s recital of the volumes of documents produced and the numerous witnesses that are available will not alone rebut the presumption of prejudice, they at least raise a genuine dispute of fact regarding whether UTC cured any material prejudice to AH. C. Whether Contamination Is An Insured Peril Under The Policies . UTC argues that in the absence of any dispute as to the existence of contamination at WL and COI, it is entitled- to a determination that this contamination is covered under these “all risk” Policies covering all physical loss or damage even though it was not enumerated in the Policies, because there was no specific exclusion. See Ins. Co. of North America v. Gypsum Co., 678 F.Supp. 138, 141 (W.D.Va.1988), aff'd, 870 F.2d 148 (1989); see also Eugene Anderson, et al, Policyholder Claims for Insurance Coverage Because of Environmental Damage, ALI-ABA 427, 529-31 (1989). This is in contrast to a “named peril” policy in which an insurer specifies the perils it will cover and the policyholder bears the risk of any unknown or unforeseen cause of damage. Id. UTC argues that AH could have included contamination among the perils specifically excluded from the Policies, but did not do so, thereby accepting “all risks,” including contamination. In fact, at the same time AH issued the first and second policies to UTC, it issued “all-risk” policies to Carrier which specifically excluded contamination. AH argues that exclusions contained in other policies drafted by AH at the same time are irrelevant to construing the Policies at issue here, but fails to factually distinguish the circumstances related to the issuance of the Policies here from the other policies issued by AH during the same time period or to provide the Court with any legal authority for its argument. Moreover, AH contends that the determination of whether contamination is a covered peril is inextricably linked to the fact-intensive question of whether the loss was fortuitous or to a determination of whether an exclusion, such as gradual deterioration, applies. The Court is not persuaded. Here, UTC is merely arguing that contamination is a covered peril under the Policies. A determination that contamination is a covered peril does not foreclose AH from claiming that, despite being a covered peril, the loss is not covered because other conditions of the policy, such as fortuity, were not satisfied. Accordingly, the Court finds that contamination is a covered peril under the “all risk” Policies because it is pot specifically excluded. D. Whether UTC Has An “Insurable Interest” In The Contaminated Property When evaluating any claim under a property insurance policy, the initial inquiry is whether the insured had an “insurable interest” in the damaged property at the time of the loss. Jerry Proveneher, “First-Party Claims With an Environmental Twist,” 23 ABA Brief 8 (Summer, 1994). UTC argues that as a matter of law, it has an insurable interest in the soil and groundwater at WL and COI and the surface water at WL because the parties agree that these areas have been contaminated and require remediating. Perhaps because AH contends that groundwater is not “covered property” under the Policies, it does not address whether UTC has an insurable interest. The determination of whether UTC has an insurable interest in groundwater is distinct from whether groundwater is “covered property.” The “insurable interest” analysis involves whether the insurance policy is unenforceable or void because it fails to protect any interest of the insured. 3 Couch on Insurance 3d § 41:1 (“Today, it is universally held, either by force of statute or upon public policy grounds, that insurable interest is necessary to the validity of a policy, no matter what the subject matter.”). The question of whether “covered property” was damaged is reached only after finding the policy is valid. Because “insurable interest” and “covered property” issues are distinct, the Court will address them separately. “Generally speaking, a person has an insurable interest in property whenever he [or she] would profit by or gain some advantage from its continued existence or suffer some loss or disadvantage by its destruction. If the insured would sustain a loss by the destruction of the insured property, it is immaterial whether he or she has any title in, lien upon, or possession of, the property itself.” 3 Couch on Insurance 3d § 41:11. Under Connecticut law, the critical question is whether the insured will be “directly and financially affected by the loss of the property insured____ This opens a wide field and the decisions take an extensive range with a growing tendency to expand rather than to contract the scope of the term.” Plum Trees Lime Co. v. Keeler, 92 Conn. 1, 101 A 509 (1917). Here, it is undisputed that UTC is directly liable for the cost of remediating the contamination of the water and soil at WL and COL Because UTC sustained financial loss by the contamination of the soil and water, UTC. has an insurable interest. Accordingly, UTC’s motion for summary judgment is granted. E. Whether Water And Soil Constitute “Covered Property” Within The Meaning Of The Policies. The Policies insure “all real and personal property” owned by UTC. In addition, the Policies insure the property of others in which UTC has care, custody or control. UTC urges the Court to find as a matter of law that the term “real property” includes soil and water. AH urges the Court to find as a matter of law that the groundwater at COI is not “covered property” within the meaning of the Policies because it is neither owned by UTC nor within UTC’s care, custody or control. The Court will address each of these issues in turn. 1. Real Property The term “real property” is not defined in the Policies. UTC argues that the plain meaning of the term “real property” includes soil and water. AH argues that summary judgment should not be granted because “real property” is an ambiguous term, and extrinsic evidence will show that “real property” was intended to refer only to buildings, not land. An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract. Hammer v. Lumberman’s Mut. Cos. Co., 214 Conn. 573, 583, 573 A.2d 699 (1990). “When interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.” O’Brien v. U.S. Fidelity and Guaranty Co., 235 Conn. 837, 843, 669 A.2d 1221 (1996). UTC argues that “real property” is not an ambiguous term and should be interpreted in accordance with its plain and ordinary meaning. See Horning Wire Corp. v. Home Indemnity Co., 8 F.3d 587 (7th Cir.1993) (“land is merely a subset (though admittedly a big one) of the broader category of real property”); Westinghouse Elect. Corp. v. Liberty Mut. Ins., Co., No. L-69352-8 (N.J.1992) (finding that the term “real property” as used in an all risk policy is standard insurance language and carries no unique meaning in insurance context). “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” 24 Leggett Street Ltd. Partnership v. Beacon Industries, 239 Conn. 284, 295, 685 A.2d 305 (1996). The Second Circuit and Connecticut courts regularly rely on dictionaries to determine the plain and ordinary meaning of an insurance policy term. See e.g. Cunninghame v. Equitable Life Assur. Society, 652 F.2d 306, 309 (2d Cir.1981); Providence Washington Ins. Group v. Albarello, 784 F.Supp. 950, 953 (D.Conn.1992). Standard dictionaries, as well as legal and insurance dictionaries, define real property as including land, soil, and water. AH does not dispute that the ordinary meaning of “real property” includes land. However, AH argues that, looking at the Policies as a whole, rather than the isolated phase “real property,” reveals an ambiguity. In finding an ambiguity, AH argues that the Policies provide a method for valuing property that is damaged. Because the Policies include a method for valuing buildings, but not land’or natural resources, AH contends it is unclear whether land is included in the term “real property”. Paragraph 11 of the Policies provides that all covered property not otherwise provided for in the valuation scheme should be valued at “actual cash value at the time and place of loss”. AH contends that because UTC is not seeking the “actual cash value” of the property, but rather is seeking to be reimbursed for the costs expended in the cleanup supports its proposition that the Policies do not cover land. ■ The valuation provision does not have any bearing on whether there is coverage for a particular claim. Although the Policies provide that all other property is to be valued at “actual cash value,” this is not the only means of valuing damage. The Policy in effect from 1981- — 1986 also provide for coverage of expenses incurred in removing debris and all of the Policies provide for “expenses to reduce loss.” Thus, UTC’s failure to seek actual cash value for its land does not import an ambiguity into the Policies, but rather is consistent with the plain language of the Policies. Paragraph 19 of the Policies, entitled “Premium Adjustment” requires UTC “to furnish [AH with] a statement of aggregate values of buddings, structures, and personal property...” The premium is adjusted based on the submitted values. AH argues that “real property” is ambiguous because the Policies’ premiums were not adjusted to reflect the values for land and natural resources. However, the amount of the premium cannot be used to affect the plain terms of the contract. 2 Couch on Insurance § 22:47, at 22-97 (1996) (“[although the amount of the premium cannot affect the plain terms of the contract, it is a fact to be taken into consideration in construing doubtful clauses in a policy.”); see also Trans-america Ins. Co. v. Bellefonte Ins. Co., 548 F.Supp. 1329, 1331 (E.D.Pa.1982) (only reaching premium issue after finding ambiguity in the policy); McNeilab Inc. v. North River Ins. Co., 645 F.Supp. 525, 540 (D.N.J.1986), aff'd, 831 F.2d 287 (3d Cir.1987) (same). Here, the plain terms of the agreement provide coverage for “real property.” “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers and laymen contend for different meaning.” Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990) (citations and quotations omitted). Here, AH has failed to provide the Court with any authority for the proposition that “real property” is an ambiguous term. Nor does AH refer the Court to any sources, such as dictionaries, that define real property to exclude land. When Policy terms are unambiguous, they must be given their plain and ordinary meaning and extrinsic evidence is inadmissible to determine the meaning. Cunninghame v. Equitable Life Assurance Soc’y of the United States, 652 F.2d 306, 308 (2d Cir.1981); TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288-89, 589 A.2d 329, 333 (1991). Finding no ambiguity and no dispute of material fact, the Court grants summary judgment. 2. Groundwater at COI AH urges the Court to find as a matter of law that the groundwater at COI is not “covered property” under the Policies because UTC does not own it or have care, custody or control of it. It is undisputed that the groundwater at COI is public property as a matter of California law and thus, can not be privately owned by UTC. Cal. Water Code § 102 Consequently, the groundwater is not covered by the Policies unless it is within UTC’s “care, custody or control” such that UTC is subject to legal liability for causing damage to it. AH contends that UTC cannot claim it has “care, custody, or control” over the COI groundwater because its subsidiary, Carrier Corporation, submitted a statement to a California -Superior Court in which it claimed to “not own or have any interest in the groundwater it has been ordered to clean up.” See Carrier Corp. v. Detrex Corp., No. C703625, Slip op. (Cal.Super.Ct. October 28, 1988) (Def.App.Exh.123). However, according to UTC, this statement was made in the context of whether Carrier sustained damage to its property. Here, the question is notwithstanding UTC’s lack of ownership, did UTC have sufficient “care, custody, or control” of the groundwater for coverage under the Policies. Because AH failed to provide the Court with sufficient information regarding the context of UTC’s “admission” that it does not have an interest in the groundwater, summary judgment is inappropriate on this basis. Several courts have considered whether groundwater contamination was covered under liability policies, but the parties did not present, nor has the Court found any cases in which groundwater was found to be ‘covered under a property , policy. See e.g. Lane Elec. Coop., Inc. v. Federated Rural Elec. Ins. Corp., 114 Or.App. 156, 834 P.2d 502, 505 (1992). As discussed above, liability policies generally insure damage to the property- of another caused by the insured, whereas a property policy covers the insured’s property. See swpra n. 5. Liability policies contain “owned property exclusions” which generally provide that it does not cover property owned by the insured or property of others in the insured’s care, custody, or control. The purpose of the owned property exclusion is to prevent a liability policy from covering property policy losses. Pejcha Revocable Trust v. State Farm Fire & Cas. Co., 1996 WL 417259 (N.D.Cal., July 23, 1996); Olds-Olympic, Inc. v. Commercial Union Ins. Co., 129 Wash.2d 464, 918 P.2d 923. (1996). Of those courts that have examined whether ownership of groundwater was excluded under the owned property exclusion, “the majority of jurisdictions ... have concluded that groundwater below real property does not ‘belong’ to the property owner,” and thus was covered under the liability policies. Reliance Ins. Co. v. Armstrong World Industries, 292 NJ.Super. 365, 678 A.2d 1152, 1159 (1996). Generally these courts have found that the nature of groundwater is inconsistent with the insured’s ownership or “care, custody or control.” Id. “Some courts have expressly concluded, largely based on environmental statutes... that groundwater is a public resource belonging to the government and is thus ‘third party1 property.. Id (citing Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1565 (9th Cir.1991) (under a California statute all water within the state was state property, and therefore damage to groundwater was not excluded under the owned property exclusion); State v. New York Cent. Mut. Fire Ins. Co., 147 A.D.2d 77, 542 N.Y.S.2d 402, 403 (1989) (court held that under New York law groundwater is a natural resource protécted by the State as trustee for the public, and therefore oil that had either entered the groundwater - or threatened to do so caused damage to the property of a third party)). “Some courts have gone even farther, clearly expressing that the state’s interest in groundwater is a property right.” Reliance, 678 A.2d at 1160 (citing C.D. Spangler Const. Co. v. Industrial Crankshaft, 326 N.C. 133, 388 S.E.2d 557, 563 (1990)) (where the court noted that injury to the State’s natural resources is property damage under [a liability policy] because the state’s interest in protecting its natural resources is a property right.). Alternatively, numerous other courts have reasoned that “groundwater in its natural state cannot be deemed ‘property1 that is ‘owned’ by anyone.” Id. (citing Gerrish Corp. v. Universal Underwriters, 947 F.2d 1023 (2d Cir.1991) (the ‘presence of ... pollution in,... groundwater’ was ‘proof of damages to property not owned, controlled or possessed by the insured’); U.S. v. Conservartion Chem. Co., 653 F.Supp. 152, 200 (W.D.Mo.1986) (district court adopted a special master’s conclusion that because groundwater is not “owned or controlled” by the insured, the owned property exclusion did not apply)). The Court finds it difficult to conceptualize how groundwater, which is transient or migratory in nature, could be under UTC’s “care, custody or control.” “At the least, groundwater is unique. Unlike other property that is normally considered as being within the four comers of one’s deed, groundwater not only flows, trickles or runs or oozes through the land from one place to another, but other than being a source of potable water, it is certainly not susceptible to the custody or control of a property owner.” Morrone v. Harleysville Mut. Ins. Co., 283 N.J.Super. 411, 662 A.2d 562, 566 (1995) (internal citations, and quotations omitted). Viewed more existentially, “the water continually flowed and flowed and yet it was always there; it was always the same and yet every moment it was new.” Hermann Hesse, Siddartha, at 102 (1976). Because UTC’s groundwater damage claim is to the property of third parties, which the Court concludes cannot be deemed within UTC’s care, custody or control, it is not covered under these property damage Policies, and the Court will grant AH’s motion for summary judgment regarding groundwater at COI. F. Whether WL and COI Suffered “Physical Damage” Within The Meaning Of the Policies. The parties filed cross motions for summary judgment urging the Court to rule as a matter of law on whether there was “physical loss or damage” at WL and COI within the meaning of the Policies. UTC argues that its motion for summary judgment should be granted because there is no dispute of material fact that the soil and water at WL and the soil at COI were damaged by contamination. AH contends that no “physical loss or damage” occurred within the plain language of the Policies because UTC’s damages are related to investigating the contamination and complying with government orders, not to cleaning up the contaminated property. Property insurance provides coverage for physical loss or damage to the insured’s property, “[tjhus actual physical injury or destruction [to the insured’s property] must occur before the policy will respond to a loss.” Provencher, “First Party Claims With An Environmental Twist,” supra at *10. There is no dispute that the soil and water at WL and the soil at COI have been contaminated. Furthermore, it is undisputed that UTC was responsible to government agencies for remediating the actual physical injury of contamination. There is nothing in the Policies nor is there any legal authority which precludes UTC from recovering for losses sustained on its own property while also seeking coverage under its liability for any damage caused to third parties. Furthermore, there is no legal authority to support AH’s apparent position that there can be no claim as a matter of law for “property damage” once the government is involved. A similar argument under New York law was rejected by the Second Circuit in Stonewall Ins. Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir.1995), modified on other grounds and reh’g denied, 85 F.3d 49 (2d Cir.1996). In Stonewall a liability insurance policy which provided coverage for any property damage the insured, a manufacturer of asbestos products, caused to third parties. Id. at 1208. The insurer argued that the underlying claims against the insured were not for “property damage” because they “are merely for the costs of prophylactic measures undertaken by the buildings owners, and that such costs represented only the expenses incurred to comply with government imposed health and safety standards.” Id. The Second Circuit rejected the insurer’s argument, finding that “the claimants’ buildings have suffered ‘physical injury5 as a result of the installation of [asbestos containing materials] ____ The damage is from the release of fibers into the building, not from the regulatory requirement that the asbestos be removed, even though the cost of removal may be an appropriate item of damages.” Here, there is undisputed evidence that UTC’s property has been damaged by the release of various contaminants. While some of the costs plaintiff is seeking to recover may not be provably related to remedying the pollution damage to plaintiff’s property, the Court declines to find as a matter of law that money expended to comply with the government orders to investigate the nature and scope of the necessary remediation of its contaminated property does not constitute physical loss or damage. The attribution of damages to remedy of UTC’s own property loss is a matter properly left for trial. AH further contends that the expenses UTC incurred to comply with the government orders were designed to protect the environment and the health of the general public and adjoining landowners, not to protect UTC’s own property, and thus are not covered under the property insurance policies. Again, the issue for purposes of coverage should not be whether the money was expended to comply with a governmental order, but rather whether the money was expended solely to remedy damage to UTC’s own property. To the extent money was expended to remedy damage caused to others, AH, as an all-risk property insurer, is not liable. However, on the basis of the record, the Court cannot determine which expenses were incurred to remedy U