CPC International, Inc. v. Northbrook Excess & Surplus Insurance (46 F.3d 1211, 1995)

TORRUELLA, Chief Judge.

Plaintiff-appellant, CPC International, Inc. (“CPC”), filed this action seeking a declaration that defendant-appellee, Northbrook Excess & Surplus Insurance Company (“North-brook”), is obligated to indemnify it for environmental cleanup costs related to land and water contamination allegedly caused by Peterson/Puritan, Inc. (“Peterson/Puritan”), a former subsidiary of CPC. At the close of CPC’s evidence in the jury trial of the case, the district court granted Northbrook’s motion, pursuant to Fed.R.Civ.P. 50(a), for judgment as a matter of law. CPC appeals 1) the district court’s pretrial choice-of-law decision predicting that a New Jersey court would apply the substantive law of Rhode Island and 2) the district court’s grant of judgment as a matter of law. For the reasons stated herein, we affirm the district court’s choice-of-law decision and certify a question to the Rhode Island Supreme Court.

I.

BACKGROUND

A. Factual Background

The ultimate issue in this case is whether Northbrook is obligated to indemnify CPC for environmental cleanup costs related to land and water contamination caused by Peterson/Puritan, an aerosol packaging plant formerly owned by CPC. CPC is a multinational packaging and manufacturing corporation headquartered in New Jersey. From July 1, 1979 to July 1, 1980, Northbrook served as CPC’s first layer excess insurance carrier, with a $25 million umbrella liability policy.

In 1968, CPC acquired the Puritan Aerosol Company and renamed it Peterson/Puritan. Peterson/Puritan manufactures, among other things, flea spray, hair spray, spot remover and oven cleaner. Its manufacturing facility is located in the town of Cumberland, Rhode Island, on a seventeen-acre site (“the Peterson-Puritan site”) fronted on its western side by the Blackstone River. In 1979, both Cumberland and the neighboring town of Lincoln discovered chemical contamination in their municipal water supplies, the Quinnville Wellfields. The wells were closed later that year.

In 1980, the United States Environmental Protection Agency (“EPA”) hired the environmental engineering firm Goldberg-Zoino and Associates to conduct a hydrogeological study of the aquifer underlying the Blackstone River (the “GZA Report”). In 1982, based on the results of the GZA Report, the Town of Lincoln sued Peterson/Puritan for contamination of the Quinnville Wells. That suit was settled in 1984 for $780,000. The settlement was paid by Northwestern National Insurance Company (“Northwestern National”), CPC’s primary insurance carrier, under a policy with a coverage limit of $1 million.

In 1983, EPA placed an area including the Peterson/Puritan site and the aquifer east of the Blackstone River (designated by the EPA as “OU-1”) on its National Priorities List. In 1987, following several years of negotiations, EPA issued an Administrative Order by Consent, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., which identified Peterson/Puritan as the party responsible for numerous hazardous chemicals migrating into the groundwater, and ordered Peterson/Puritan to investigate additional responsible parties and further analyze site conditions. Later that year, Northwestern National informed CPC and Northbrook that the primary insurance policy was exhausted, thus bringing Northbrook into the fold.

In July of 1987, CPC filed suit against Northbrook in New Jersey state court seeking a declaration that Northbrook is obligated to indemnify it for environmental cleanup costs and damages arising from the Town of Lincoln settlement and the EPA-ordered cleanup. On the basis of diversity jurisdiction, Northbrook removed the case to the United States District Court for the District of New Jersey. In 1989, the New Jersey district court granted Northbrook’s motion to transfer venue to the United States District Court for the District of Rhode Island.

After the transfer, CPC filed a motion for a declaration that the substantive law of New Jersey governs this litigation. In an Opinion dated June 21, 1990, the Rhode Island district court concluded, first, that in ruling upon the choice-of-law issue it must apply the law of the state which would have been applied had the change of venue not occurred and, second, that a New Jersey court would apply New Jersey law to this case because, as the home base of the insured, CPC, it has the most significant interest in the outcome of the ease. CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 739 F.Supp. 710, 713-15 (D.R.I.1990).

The parties filed cross-motions for summary judgment and, on March 15, 1991, the district court denied CPC’s motion for summary judgment and allowed Northbrook’s cross-motion on the ground that the pollution exclusion clause in Northbrook’s policy precluded coverage for gradual pollution. The district court concluded that CPC failed to sustain its burden of establishing a genuine issue of fact with respect to whether the contamination of the aquifer was “sudden and accidental,” within the meaning of New Jersey law, and therefore held that the pollution exclusion applied. CPC Int’l, Inc. v. Northbrook Excess & Surplus Ins. Co., 759 F.Supp. 966, 976 (D.R.I.1991).

CPC appealed and, on March 24, 1992, we reversed the district court’s grant of summary judgment for Northbrook and remanded the case to the district court. We concluded that, in predicting how the New Jersey Supreme Court would interpret the “sudden and accidental” provision, the district court gave insufficient weight to decisions of the New Jersey Superior Court’s Appellate Division (New Jersey’s intermediate appellate court), which had concluded that the “sudden and accidental” provision is ambiguous and had interpreted it favorably to insureds as providing coverage for gradual pollution. See CPC Int’l, Inc. v. Northbrook Excess and Surplus Ins. Co., 962 F.2d 77, 97-98, reh’g denied, 962 F.2d 98 (1st Cir.1992).

After the case was remanded, Northbrook moved for reconsideration of the district court’s 1990 choice-of-law decision. In a Memorandum and Order dated December 16, 1993, 839 F.Supp. 124 (the “Second Choice-of-Law Decision”), the district court granted Northbrook’s motion, holding that the substantive law of Rhode Island would henceforth govern the case. We denied CPC’s petition for mandamus.

The case went to trial on January 28,1994. Over eleven days, CPC offered testimony from several witnesses, including three experts, and employees of the former Peterson/Puritan facility. At the close of CPC’s evidence, Northbrook moved for judgment as a matter of law under Fed.R.Civ.P. 50(a). On February 16, 1994, the district court delivered a detailed oral opinion concluding that CPC had failed to present evidence from which a reasonable jury could conclude that there was an “occurrence” — an event resulting in property damage — during the policy period. The district court therefore granted Northbrook’s motion for judgment as a matter of law. This appeal followed.

II.

STANDARD OF REVIEW

We review the district court’s choice-of-law decision de novo. See Crellin Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1, 4 (1st Cir.1994). With respect to the district court’s grant of judgment as a matter of law, we note, at the outset, that judgment as a matter of law is proper at the close .of the plaintiffs’ case only when, after scrutinizing plaintiffs’ evidence and the inferences reasonably to be drawn therefrom in the light most favorable to the plaintiffs, the trial court concludes that no reasonable jury could find in plaintiffs’ favor on any permissible claim or theory. Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 76 (1st Cir.1993). Judgment as a matter of law may be entered only if the evidence, viewed from this perspective, is such that reasonable minds could not differ as to the outcome. Id.

We review the Rule 50(a) motion decision de novo, see Salve Regina Coll. v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 1220-22, 113 L.Ed.2d 190 (1991); Jordan-Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st Cir.1992), under the same standards governing the district court, Rolon-Alvarado, 1 F.3d at 76, with a view to the legal sufficiency of the evidence presented by the plaintiffs.

III.

DISCUSSION

CPC contends that the district court erred, first, in determining that Rhode Island law would govern the case, after previously determining that New Jersey law would govern, and, second, in concluding that CPC had failed to present evidence from which a reasonable jury could find in its favor.

A. Choice of Law

CPC asserts that the district court erred in changing its original choice-of-law determination. CPC makes two related arguments in support of this assertion. First, CPC contends that the district court violated the “law of the ease” doctrine in changing its original choice-of-law ruling. Second, CPC maintains that the district court’s second choice-of-law ruling was erroneous — i.e., that a New Jersey court would not apply the substantive law of Rhode Island to this case.

In its original choice-of-law decision, the district court ruled that a New Jersey court would apply the substantive law of New Jersey to the facts of this case. The court concluded that, under New Jersey’s choice-of-law rules, New Jersey, as the location of the insured, has the strongest interest in the outcome of the case. The court rejected Northbrook’s contention that the substantive law of Rhode Island, the site of the contamination, or, in the alternative, the law of Illinois, the state in which the insurer accepted the risk, should apply. Northbrook sought, unsuccessfully, to have the choice-of-law question certified to this court. The district court then granted Northbrook’s motion for summary judgment under New Jersey law.

In reversing the district court’s summary judgment ruling, we noted that the district court’s June 21, 1990 choice-of-law decision that New Jersey law governs was not questioned on appeal and that, therefore, it “is law of the case.” CPC Int'l 962 F.2d at 91. We rejected Northbrook’s petition for rehearing on the choice-of-law issue, concluding that Northbrook did not preserve the issue on appeal. After the case was remanded, Northbrook filed a motion requesting that the district court reconsider its previous choice-of-law ruling.

In its Second Choice-of-Law Decision, the district court made two related rulings. First, the district court decided that the New Jersey Supreme Court’s recent decision in Gilbert Spruance Co. v. Pennsylvania Manufacturers’ Ass’n Insurance Co., 134 N.J. 96, 629 A.2d 885 (1993), represents “a clear and contrary change in the law applicable to the ease” and, therefore, that “the law of the case presumption is overcome.” Second, the court held that a New Jersey court, applying the newly articulated principles of Gilbert Spruance, would apply the substantive law of Rhode Island to the facts of this case and, therefore, that Rhode Island law, rather than New Jersey law, would govern this litigation.

As noted previously, under normal circumstances we review de novo a district court’s choice of the substantive law to apply in a particular case. In this case, however, an additional consideration guides our review of the district court’s choice-of-law decision. Under the “law of the case” doctrine, a decision by an appellate court on a particular issue, unless vacated or set aside, governs the issue during all subsequent stages of the litigation. United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991). The law of the case doctrine bars litigants from rearguing issues previously decided on appeal. See, e.g., United States v. Rosen, 929 F.2d 839, 842 n. 5 (1st Cir.), cert. denied 502 U.S. 819, 112 S.Ct. 77, 116 L.Ed.2d 51 (1991); United States v. DeJesús, 752 F.2d 640, 642-43 (1st Cir.1985); White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967). The doctrine is based on considerations of “stability in the decision-making process, predictability of results, proper working relationships between trial and appellate courts, and judicial economy.” United States v. Connell, 6 F.3d 27, 30 (1st Cir.1993). Under the law of the case doctrine, when a trial court, on remand, seeks to dispose of a case in accordance with an appellate court’s mandate, it “ ‘must implement both the letter and the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.’ ” Id. (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991)).

The law of the case was not intended, however, to serve as an absolute bar to reconsideration, nor a limitation on a federal court’s power. Rivera-Martinez, 931 F.2d at 151. We have, therefore, recognized that a district court may, as an exception to the law of the case doctrine, reexamine a previous ruling when “controlling authority has since made a contrary decision of the law applicable to such issues.... ” Id. CPC argues that the New Jersey Supreme Court’s decision in Gilbert Spruance does not represent “a contrary decision of the law applicable” to the district court’s original choice-of-law decision.

We agree with the district court’s conclusion that Gilbert Spruance represents a decision which is contrary to the law as applied by the district court in its original choice-of-law decision. We also think that, although Gilbert Spruance does not necessarily mandate the decision reached by the district court, it certainly provides ample support for the district court’s prediction that the New Jersey Supreme Court, if faced with the question, would conclude that Rhode Island law should govern this dispute.

In its original choice-of-law ruling, the district court analyzed a host of decisions by the New Jersey Appellate Division. The district court also reviewed what was, at the time, the New Jersey Supreme Court’s most recent decision concerning choice-of-law in the liability-insurance context — State Farm Mut. Auto. Ins. Co. v. Estate of Simmons, 84 N.J. 28, 417 A.2d 488 (1980) — and predicted that a New Jersey court would consider New Jersey, the location of the insured’s principal headquarters, the state with the strongest interest in the outcome of the case. In eliminating the law of Rhode Island as a possibility, the district court relied on the Appellate Division’s decision in Westinghouse Elec. Corp. v. Liberty Mut. Ins. Co., 233 N.J.Super. 463, 559 A.2d 435 (App.Div.1989), which adopted the “uniform-contract-interpretation” approach to choice-of-law determinations. Under that approach, policy interpretation should be uniform nationwide and not vary according to the location of the risk.

At the time of the district court’s first choice-of-law opinion, State Farm was the controlling decision of the New Jersey Supreme Court with respect to choice-of-law issues in the liability-insurance context. State Farm held that, because the law of the place of contract “generally comport[s] with the reasonable expectations of the parties concerning the principal situs of the insured risk,” that state’s law should be applied “unless the dominant and significant relationship of another state to the parties and the underlying issue dictates that this basic rule should yield.” State Farm, 84 N.J. at 37, 417 A.2d 488. State Farm directs courts, in making that determination, to rely on the factors and contacts set forth in sections 6 and 188 of Restatement (Second) of Conflicts of Laws (1971). Id. at 34-35, 417 A.2d 488. Thus, State Farm creates a rebuttable presumption that the law of the state where the contract was entered into will govern the dispute. See J. Josephson, Inc. v. Crum & Forster Ins. Co., 265 N.J.Super. 230, 239, 626 A.2d 81, 86 (Law.Div.1993).

Gilbert Spruance changes the presumption by rejecting the “uniform-contract-interpretation approach” and adopting the “site-specific” approach to choice-of-law determinations in the casualty-insurance context. See Gilbert Spruance, 134 N.J. at 111-14, 629 A.2d 885. The New Jersey Supreme Court now directs courts to look, first, to section 193 of Restatement (Second) of Conflicts of Laws, which sets forth the site-specific rule by creating a presumption that a casualty-insurance policy be interpreted under the substantive law of the state that “the parties understood was to be the principal location of the insured risk, unless some other state has a more significant relationship” to the parties, the transaction, and the outcome of the controversy under a Restatement section 6 analysis. Gilbert Spruance, 134 N.J. at 111, 629 A.2d 885 (quoting Restatement (Second) of Conflicts of Laws § 193). Gilbert Spruance also provides that when the subject matter of the insurance is a predictably mul-tistate operation or activity, “the significance of the principal location of the insured risk diminishes,” and “the governing law is that of the state with the dominant significant relationship according to the principles set forth in Restatement section 6.” Id. (citations omitted).

The Gilbert Spruance decision resolved a conflict among different panels of New Jersey’s Appellate Division by specifically rejecting the “uniform-contraet-interpretation approach” to choice-of-law determinations and adopting the “site-specific” approach. Compare Westinghouse, 559 A.2d 435; with Diamond Shamrock Chemicals Co. v. Aetna Cas. & Surety Co., 258 N.J.Super. 167, 609 A.2d 440 (App.Div.1992) (interest of state where pollution site lies is “more dominant and significant”); Johnson Matthey, Inc. v. Pennsylvania Mfrs. Ass’n Ins. Co., 250 N.J.Super. 51, 593 A.2d 367 (App.Div.1991) (interest of state where pollution site lies is “paramount”). In its initial choice-of-law ruling, the district court relied on the reasoning behind the Westinghouse court’s adoption of the uniform-contract-interpretation approach in determining that the law of Rhode Island, the location of the risk, should not govern this case. CPC Int’l, 739 F.Supp. at 714. The Gilbert Spruance court’s rejection of the uniform-contract-interpretation is-therefore a highly significant change in the controlling authority. It changes the equation upon which the district court relied in making its initial choice of law decision.

The district court was obligated to predict which state’s substantive law the New Jersey Supreme Court would apply to the facts of this case, a task made all the more difficult because New Jersey does not have a procedure for certifying questions. In our view, the principles announced by the New Jersey Supreme Court represent a significant change in the law applicable to the district court’s choice-of-law decision. We conclude, therefore, that the district court’s departure from the law of the case was justified.

We also conclude, on de novo review, that the district court’s prediction that the New Jersey Supreme Court would apply the law of Rhode Island in this case is supported by New Jersey case law, particularly the principles announced in Gilbert Spruance. Under the site-specific rule adopted by Gilbert Spruance, it is presumed that the substantive law of the state which is the principal location of the insured risk governs, unless another state has a more significant overall interest in the case. Gilbert Spruance, 134 N.J. at 112, 629 A.2d 885. New Jersey’s only connection with the case is that CPC’s headquarters are located in New Jersey. Moreover, Gilbert Spruance explained that “[w]hen the waste-producing facility and the waste site are located in the same state, their common location makes the application of [the Restatement’s choice-of-law factors] straightforward.” Id. at 107, 629 A.2d 885. As the district court noted, in this case the waste was both generated and disposed of in Rhode Island.

CPC argues that Gilbert Spruance explicitly left open the question of whose law would apply in a case such as this. CPC cites the following language in support of this proposition.

We have no occasion to consider in this appeal the problem presented when waste generated in New Jersey predictably is disposed of in another state_ Specifically, we express no view on the proposition ... that when another state is the foreseeable location of the waste-site, the court must engage in a section 6 analysis to determine if that state has the most significant relationship with [the case].

Id. at 113-14, 629 A.2d 885. In our view, this language merely leaves open the possibility that when waste is generated in New Jersey and disposed of in another state, New Jersey law might still apply. As noted, in this case, the waste was both generated and disposed of in Rhode Island. Under such circumstances, there is every reason to predict that the New Jersey Supreme Court would recognize with equal vigilance the “urgent concern for the health and safety of [Rhode Island’s] citizens” implicated by the generation and dumping of toxic waste in that state. See id. at 113, 629 A.2d 885 (quoting Johnson Matthey, 250 N.J.Super. at 57, 593 A.2d 367).

For the foregoing reasons, we affirm the district court’s decision that the New Jersey Supreme Court would apply the substantive law of Rhode Island in this ease. We now turn to the merits of this appeal — the district court’s decision granting Northbrook’s motion for judgment as a matter of law.

B. The Grant of Judgment as a Matter of Law

1. The Policy Provisions

Northbrook issued a comprehensive liability policy to CPC which was in effect from July 1, 1979 through July 1, 1980. Pursuant to that policy, Northbrook agreed to indemnify CPC for personal injuries, property damage and/or advertising liability “caused by or arising out of each Occurrence happening anywhere in the world.” The policy defines “property damage” as “loss of or direct damage to or destruction of tangible property (other than property owned by an insured) and which results in an Occurrence during the policy period.” The policy defines “Occurrence” as:

an accident, event or happening including continuous or repeated exposure to conditions which results, during the policy period, in Personal Injury, Property Damage or Advertising Liability neither expected nor intended from the standpoint of the Insured

.... All such Personal Injury, Property Damage or Advertising Injury caused by one event or repeated exposure to substantially the same conditions shall be deemed to result from one Occurrence.

2. The District Court Decision

In ruling upon Northbrook’s motion for judgment as a matter of law, the district court made the following pertinent findings of fact. Between 1963 and the late 1970s, Peterson/Puritan polluted the environment in the area of its plant in Cumberland, Rhode Island. Peterson/Puritan employees routinely dumped chemicals, including volatile organic compounds (