DUKE ENERGY CAROLINAS, LLC v. AG INS. SA/NV., 2020 NCBC 45

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
17 CVS 5594
DUKE ENERGY CAROLINAS, LLC
and DUKE ENERGY PROGRESS,
LLC,
Plaintiffs,
v.
AG INSURANCE SA/NV (f/k/a
L’Etoile S.A. Belge d’Assurances); et
al.,
Defendants.
ORDER AND OPINION ON THE
CHUBB DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
REGARDING TRIGGER OF
COVERAGE AND THE AEGIS
DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
REGARDING COVERAGE FOR THE
W.H. WEATHERSPOON STEAM
ELECTRIC PLANT
1. 	THIS MATTER is before the Court on (i) the Chubb Defendants’1 Motion
for 	Partial 	Summary 	Judgment 	Regarding 	Trigger 	of 	Coverage 	(the 	“Chubb
Defendants’ Motion”) filed November 26, 2019, (ECF No. 572), and (ii) the AEGIS
Defendants’2 Motion for Partial Summary Judgment Regarding Coverage for the
W.H. Weatherspoon Steam Electric Plant (the “AEGIS Defendants’ Motion,” together
with the Chubb Defendants’ Motion, the “Motions”) filed on November 27, 2019, (ECF
No. 593).3
1 The “Chubb Defendants” are Defendants Federal Insurance Company (“Federal”), Century
Indemnity Company, as successor to CIGNA Specialty Insurance Company (f/k/a California
Union Insurance Company), and Pacific Employers Insurance Company (“PEIC”).
2 The “AEGIS Defendants” are Defendants Associated Electric & Gas Insurance Services
Limited 	(“AEGIS”), 	Berkshire 	Hathaway 	Direct 	Insurance 	Company 	(f/k/a 	American
Centennial Insurance Company (“ACI”)), and TIG Insurance Company, as successor to
Ranger Insurance Company (“Ranger”).
3 The Chubb and AEGIS Defendants are referenced together herein as the “Moving
Defendants.”
Duke Energy Carolinas, LLC v. AG Ins. SA/NV, 2020 NCBC 45.

2. 	Having considered the Motions, the materials submitted in support of and
in opposition to the Motions, the arguments of counsel at the hearing on the Motions,
and other appropriate matters of record, the Court hereby DENIES the Motions
without prejudice to the Insurers’ rights to renew the Motions after the completion of
expert discovery.
Pillsbury Winthrop Shaw Pittman LLP, by Matthew G. Jeweler, Mark J.
Plumer, Barry Fleishman, Aaron D. Coombs, William C. Miller, and
Jeffrey W. Mikoni, and Hunton & Williams LLP, by A. Todd Brown and
Ryan G. Rich, for Plaintiffs Duke Energy Carolinas, LLC and Duke
Energy Progress, LLC.
O’Melveny & Myers, LLP, by Jonathan Hacker and Bradley Garcia,
White and Williams, LLP, by Shane Heskin and Eric Hermanson,
Fitzgerald Litigation, by Andrew L. Fitzgerald, and Cohn Baughman &
Martin, by Frank Slepicka, for Defendants Century Indemnity Company,
Federal 	Insurance 	Company, 	and 	Pacific 	Employers 	Insurance
Company.
Rivkin Radler LLP, by Alan S. Rutkin, George D. Kappus, Steven M.
Zuckermann, Greg E. Mann, and Gregory J. Klubok, and Goldberg
Segalla, by David G. Harris, II and David L. Brown, for Defendants
Associated 	Electric 	and 	Gas 	Insurance 	Services 	Ltd., 	Berkshire
Hathaway Direct Insurance Company, and TIG Insurance Company.
Hogan 	Lovells 	US 	LLP, 	by 	David 	Newmann 	and 	Alexander 	B.
Bowerman, 	and 	McAngus 	Goudelock 	& 	Courie, 	PLLC, 	by 	Jeffrey
Kuykendal, for Defendant Assurances Générales de France.
Freeborn & Peters LLP, by Bruce M. Engel, Patrick Frye, and Ryan G.
Rudich, and Bradley Arant Boult Cummings LLP, by Matthew S.
DeAntonio and Corby C. Anderson, for Defendant Arrowood Indemnity
Company.
Saiber LLC, by Michael J. Balch, for Defendant General Reinsurance
Corporation.
Clausen Miller P.C., by Ilene Korey and Amy R. Paulus, and Fox
Rothschild LLP, by Jeffrey P. MacHarg, for Defendant Old Republic
Insurance Company.

Kennedys CMK LLP, by John D. LaBarbera and Benjamin A. Blume,
and James, McElroy & Diehl, P.A., by Adam L. Ross, for Defendant
United States Fire Insurance Company.
Karbal Cohen Economou Silk Dunne LLC, by Dena Economou, and
Shipman & Goodwin LLP, by James Ruggeri, for Defendants First State
Insurance Company and Twin City Fire Insurance Company.
Squire Patton Boggs (US) LLP, by Paul Kalish and Eridania Perez, and
McAngus Goudelock & Courie, by Jeffrey Kuykendal, for Defendants
Allianz Global Risks US Insurance Company, Allianz Underwriters
Insurance Company, and Fireman’s Fund Insurance Company.
Jackson & Campbell PC, by Erin N. McGonagle, for Defendants AIG
Property Casualty Company, American Home Assurance Company, and
Lexington Insurance Company.
Hinkhouse Williams Walsh LLP, by William C. Joern and Richard
McDermott, and Pope Aylward Sweeney & Stephenson, LLP, by Robert
Aylward, for Defendant Continental Insurance Company.
Windels Marx Lane & Mittendorf LLP, by Eric J. Konecke, for Defendant
Allstate Insurance Company.
Bledsoe, Chief Judge.
I.
FACTUAL AND PROCEDURAL BACKGROUND
3. 	This action focuses on whether Defendants—all insurers who issued excess
level insurance policies to Plaintiffs Duke Energy Carolinas, LLC (“DEC”) (formerly
Duke Power Company (“Duke Power”)) and Duke Energy Progress, LLC (“DEP”)
(formerly Carolina Power & Light Company (“CP&L”)) (collectively, “Duke”)—are
obligated to compensate Duke for alleged liabilities linked to coal combustion
residuals (“CCRs”), i.e., coal ash, at fifteen Duke-owned power plants in North and
South Carolina.

4. 	The Court does not make findings of fact on motions for summary judgment;
rather, the Court summarizes material facts it considers to be uncontested. 	Hyde
Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 142, 215 S.E.2d 162, 165
(1975).
5. 	DEC owns the Riverbend Steam Station (“Riverbend”) near Mount Holly,
Gaston County, North Carolina. 	The Riverbend plant was in operation from 1929
until 2013, and a coal ash pond was placed into service at Riverbend in 1957.4
6. 	DEP owns the W.H. Weatherspoon Steam Electric Plant (“Weatherspoon”)
near Lumberton, Robeson County, North Carolina. The Weatherspoon plant was in
operation from 1949 until 2011, and a coal ash pond was placed into service at
Weatherspoon sometime between 1949 and 1955.5
4 (See Aff. Shane R. Heskin Supp. Mot. Partial Summ. J. Regarding Trigger Coverage
[hereinafter “Heskin 1st Aff.”] Ex. 1 Proposed Groundwater Assessment Work Plan,
Riverbend Steam Station Ash Basin, dated December 30, 2014, at 4, ECF No. 573.1; Heskin
1st Aff. Ex. 2 Electric Power Research Institute’s Review of the Groundwater Flow and
Transport Model, Riverbend Steam Station, Gaston County, NC, dated February 5, 2016, at
1, ECF No. 573.2; Duke’s Opp’n Defs.’ Mot. Partial Summ. J. Regarding Trigger Coverage &
Regarding Coverage W.H. Weatherspoon Steam Electric Plant [hereinafter “Duke’s Opp’n
Br.”] Ex. 1 Excerpts Comprehensive Site Assessment Report – Riverbend Steam Station Ash
Basin (Aug. 18, 2015), at ES-3, 16, ECF No. 662.1.)
5 The parties appear to dispute the exact date coal ash pond operations began at
Weatherspoon. 	The AEGIS Defendants rely on a Duke consultant’s modeling report to
contend that “[t]he Weatherspoon ash pond was placed into service in 1949” and that
“January 1, 1950 is effectively the date the Weatherspoon ash pond was placed into service.”
(Mem. Law Supp. Mot. Partial Summ. J. Defs. AEGIS, Berkshire Hathaway Direct Ins. Co.
(f/k/a ACI), & TIG Ins. Co., Successor to Ranger, Regarding Coverage W.H. Weatherspoon
Steam Electric Plant 17 n.69 [hereinafter “AEGIS Defs.’ Supp. Br.”], ECF No. 594 (citing Aff.
Greg E. Mann Supp. Mot. Partial Summ. J. AEGIS, Berkshire Hathaway Direct Ins. Co. (f/k/a
ACI), & TIG Ins. Co., Successor to Ranger, Regarding Coverage W.H. Weatherspoon Steam
Electric Plant [hereinafter “Mann Aff.”] Ex. N Excerpts Report Entitled Groundwater Flow
& Transport Modeling Report W.H. Weatherspoon Power Plaint, Lumberton, NC, dated
October 28, 2015, at 12, ECF No. 596.14, Mann Aff. Ex. P Excerpts Report Entitled Updated
Groundwater 	Flow 	& 	Transport 	Modeling 	Report 	W.H. 	Weatherspoon 	Power 	Plant,
Lumberton, NC, dated May 30, 2017, at 15, ECF No. 596.16).) In contrast, Duke asserts that

7. 	The Moving and Joining Defendants6 (collectively, the “Insurers”) contend
in the current Motions that they are entitled to judgment as a matter of law because
Duke has admitted that the property damage Duke suffered at the Riverbend and
Weatherspoon plants occurred when the ash ponds at those plants were placed in
operation in the 1950s and the relevant policies only provide coverage for property
damage occurring during the effective periods for those policies, which were in the
late 1970s and early 1980s. 	(Joint Reply Br. AEGIS & Chubb Defs. Supp. Mots.
Partial Summ. J. Regarding Trigger Coverage W.H. Weatherspoon Steam Electric
Plant & Riverbend Steam Station Site 1–2, 16 [hereinafter “Joint Reply Br.”], ECF
No. 681.)
8. 	The Chubb Defendants’ Motion concerns five policies the Chubb Defendants
issued to Duke Power between 1979 and 1985 for the Riverbend site (the “Chubb
the Weatherspoon coal ash pond began operating around 1955, citing a different report
stating that “[t]he ash basin was constructed in phases using a combination of basin
excavation and earthen dike construction beginning in 1955.” (Duke’s Opp’n Br. 6 n.19 (citing
Duke’s Opp’n Br. Ex. 4 Comprehensive Site Assessment Report – W.H. Weatherspoon Power
Plant (Aug. 5, 2015), at ES-vi, 6–7, ECF No. 662.1).)
6 The Chubb Defendants’ Motion was joined by the AEGIS Defendants, (ECF No. 607);
Assurances Générales de France n/k/a Allianz IARD (“AGF”), (ECF No. 601); Old Republic
Insurance Company (“Old Republic”), (ECF No. 605); The Continental Insurance Company
for London Guarantee and Accident Company of New York (“Continental”), (ECF No. 608);
Allianz Global Risks US Insurance Company (f/k/a Allianz Insurance Company), Allianz
Underwriters Insurance Company (f/k/a Allianz Underwriters, Inc.), and Fireman’s Fund
Insurance Company (“FFIC”; collectively, the “Allianz Defendants”), (ECF No. 610); and
Arrowood Indemnity Company (f/k/a Royal Indemnity Company) (“Arrowood”), (ECF No.
615). 	AGF and Old Republic filed separate papers in support of the Chubb Defendants’
Motion. 	(ECF Nos. 601, 605.) 	The AEGIS Defendants’ Motion was joined by Defendants
FFIC, United States Fire Insurance Company (“U.S. Fire”), Federal, and PEIC. (ECF Nos.
611, 617, 619.) The Defendants joining the Chubb Defendants’ and the AEGIS Defendants’
Motions are referenced herein, collectively, as the “Joining Defendants.”

Policies”),7 (Certain Defs.’ Mem. Law Supp. Mot. Partial Summ. J. Regarding Trigger
Coverage 1–2 [hereinafter “Chubb Defs.’ Supp. Br.”], ECF No. 575), and numerous
policies with similar language issued by certain Joining Defendants who have joined
the Chubb Defendants’ Motion.8 The AEGIS Defendants’ Motion similarly concerns
five policies the AEGIS Defendants issued to CP&L between 1981 and 1986 for the
Weatherspoon plant (the “AEGIS Defendants’ Policies,” together with the Chubb
Policies, the “Policies”),9 (Mot. Partial Summ. J. AEGIS, Berkshire Hathaway Direct
Ins. Co. (f/k/a ACI), & TIG Ins. Co., Successor to Ranger, Regarding Coverage W.H.
Weatherspoon Steam Electric Plant 1, ECF No. 593), as well as several policies with
similar language issued by certain Joining Defendants who have joined the AEGIS
Defendants’ Motion.10
9. 	The Chubb Policies require the insurer “to indemnify . . . [t]he Insured
against Ultimate Net Loss, which the Insured may sustain by reason of the liability
imposed upon the Insured by law . . . for damages because of . . . property damage,
caused by [an] occurrence.” (Heskin 1st Aff. Ex. 8, at CEN000001–02, ECF No. 573.8;
Heskin 1st Aff. Ex. 9 § I(a), ECF No. 573.9.) 	Each of these Policies states that it
“applies to occurrences anywhere which take place during the policy period[,]”
7 The Chubb Policies at issue are listed at Appendix A.
8 The Joining Defendants’ policies at issue on the Chubb Defendants’ Motion are listed at
Appendix A.
9 The AEGIS Defendants’ Policies at issue are listed at Appendix A.
10 The Joining Defendants’ Policies at issue on the AEGIS Defendants’ Motion are listed at
Appendix A.

(Heskin 1st Aff. Ex. 9 § IV), and define an “occurrence” as “(1) an accident, or (2) event
or continuous or repeated exposure to conditions which result in . . . physical damage
to or destruction of tangible property, including loss of use[,]” (Heskin 1st Aff. Ex. 9
§ III(f)). “Property damage” is defined as “physical injury to or destruction of tangible
property which occurs during the policy period, including the loss or use thereof at
any time resulting therefrom[.]” (Heskin 1st Aff. Ex. 9, at DUKE_CAIR_000000070.)
10. 	Similarly, under each of the AEGIS Defendants’ Policies, the insurer must
“indemnify . . . [t]he INSURED for any and all sums which the INSURED shall
become legally obligated to pay as ULTIMATE NET LOSS . . . for damages because
of . . . PROPERTY DAMAGE caused by an OCCURRENCE[.]”) (See Mann Aff. Ex. D
Stipulated Copy [ACI] Policy No. CC-00-26-13 § I(a), ECF No. 596.4.) 	Each of the
AEGIS 	Defendants’ 	Policies 	further 	provides 	that 	the 	“POLICY 	applies 	to
OCCURRENCES . . . which take place anywhere during the POLICY PERIOD[,]”
(Mann Aff. Ex. D § IV), and defines “occurrence,” in relevant part, as “(1) an accident;
or (2) an event; or (3) continuous or repeated exposure to conditions which results in
. . . PROPERTY DAMAGE[,]” (Mann Aff. Ex. D § III(i)). 	The AEGIS Defendants’
Policies 	define 	“property 	damage,” 	in 	relevant 	part, 	as 	“physical 	injury 	to 	or
destruction of tangible property which occurs during the POLICY PERIOD[.]” (Mann
Aff. Ex. D § III(k).)
11. 	The Moving Defendants contend that the foregoing policy provisions make
clear that coverage is only available under the Policies if they were in effect when
covered 	property 	damage 	began. 	Relying 	on 	reports 	of 	Duke’s 	groundwater

consultants and statements made in Duke’s opposition brief, the Moving Defendants
contend that Duke has acknowledged that the relevant property damage here began
on the date the ash ponds were placed in operation—1950 for Weatherspoon and 1957
for Riverbend. 	Because the Moving Defendants’ Policies did not go into effect until
1979 and 1981, respectively, the Moving Defendants contend that the Policies at issue
have not been triggered and thus cannot provide coverage. 	(Chubb Defs.’ Supp. Br.
3, 8–9; AEGIS Defs.’ Supp. Br. 3, 17 n.69, 18; Joint Reply Br. 1–2.)
12. 	Defendant AGF has joined in the Chubb Defendants’ Motion but advances
a separate argument to reach the same conclusion based on different language in
AGF’s insurance policy (“AGF Policy”).11 (AGF’s Supp. Br. 3, ECF No. 601.)
13. 	The AGF Policy, through its incorporation of Lloyd’s UGL 1333, provides
that the insurer must “indemnify . . . the named Assured . . . for any and all sums
which they shall be legally obligated to pay and shall pay . . . as damages . . . by reason
of damage to or destruction of property, by reason of or resulting from any trade or
business of the named Assured[.]” 	(AGF’s Supp. Br. Ex. 2 § I(a).) 	The Limit of
Liability provision in the AGF Policy limits coverage to the “ultimate net loss as a
result of any occurrence covered under Insuring Agreement I(a)[.]” (AGF’s Supp. Br.
Ex. 2 § II.) 	The AGF Policy defines “occurrence” as “one happening or series of
happenings arising out of or caused by one event taking place during the term of this
11 The AGF Policy at issue on the Chubb Defendants’ Motion is Combined Companies Policy
No. 881/UGL 1333, (Mem. Law Supp. Joinder Def. AGF Certain Defs.’ Mot. Partial Summ.
J. Regarding Trigger Coverage [hereinafter “AGF’s Supp. Br.”] Ex. 1, ECF No. 601.2), which
incorporates in part the terms and conditions of Lloyd’s Policy No. 881/UGL 1333 (“Lloyd’s
UGL 1333”), (AGF’s Supp. Br. Ex. 2, ECF No. 601.3). See Appendix A. The AGF Policy was
issued for the period from 1975 until 1978.

contract[,]” (AGF’s Supp. Br. Ex. 2, at MARSH-DEC-001065), which AGF contends
requires “a discrete causative event during the policy term” for coverage to be
reached, (AGF Supp. Br. 3). AGF asserts that Duke is unable to show that its alleged
damages arise from one event during the 1975–78 policy period and thus that the
AGF Policy has not been triggered. 	(AGF’s Supp. Br. 3, Ex. 1, at MARSH-DEC-
000675.)
14. 	Like AGF, Defendant Old Republic joined in the Chubb Defendants’ Motion
and advanced separate but similar arguments for dismissal based on the language in
the policy it issued to Duke Power for the period from 1981 until 1982.12 	(Def. Old
Republic Ins. Co.’s Mot. Partial Summ. J. Regarding Trigger Coverage (Joinder) 1–2,
ECF No. 605.)
15. 	While opposing the Motions on their merits, Duke also argues under North
Carolina Rule of Civil Procedure 56(f) that the Motions are premature because the
parties have not yet completed expert discovery on the trigger of coverage issues that
are the subject of the Motions. (Duke’s Opp’n Br. 16–19, ECF No. 662; Duke’s Opp’n
Br. Ex. 12 Rule 56(f) Aff. Matthew G. Jeweler (Jan. 17, 2020) ¶¶ 5–8, ECF No. 662.1.)
In particular, Duke contends that determining when “property damage” or an “injury
in fact” occurs under the Policies requires determining “[w]hen and how often
leaching and migration of CCR constituents impacted groundwater” at the two sites,
(Duke’s Opp’n Br. 2), and that the current record “does not contain evidence of when
the leaching and migration processes commenced and/or subsequently took place at
12 The Old Republic policy at issue on the Chubb Defendants’ Motion is identified at Appendix
A.

the Riverbend or Weatherspoon ash basins, or when those processes resulted in
damage to groundwater,” (Duke’s Opp’n Br. 8). 	Duke asserts that the “complex
scientific process through which constituents in the CCRs in Duke’s ash basins
leached and then migrated into the groundwater . . . including how it works, its
timing, and when it resulted in damage to groundwater will be the subject of expert
testimony in this case.” 	(Duke’s Opp’n Br. 6–7.) 	Duke therefore urges the Court to
delay consideration of the Motions until expert discovery has been completed.
16. 	After full briefing,13 the Court held a hearing on the Motions on February
27, 2020 	(the 	“Hearing”), 	at 	which 	Duke, 	the 	Chubb Defendants, 	the 	AEGIS
Defendants, 	AGF, 	Old 	Republic, 	and 	the 	other 	appearing 	Defendants 	were
represented by counsel. The Motions are now ripe for resolution.
II.
LEGAL STANDARD
17. 	It is well established under North Carolina law that “summary judgment is
appropriate 	where 	‘the 	pleadings, 	depositions, 	answers 	to 	interrogatories, 	and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a judgment as a matter
of law.’ ” Cabarrus Cty. Bd. of Educ. v. Dep’t of State Treasurer, 839 S.E.2d 814, 823–
24 (N.C. 2020) (quoting N.C. R. Civ. P. 56(c)). “An issue is ‘genuine’ if it can be proven
13 Duke filed a single brief in opposition to the Motions and the separate arguments of AGF
and Old Republic. (ECF No. 662.) The Chubb and AEGIS Defendants filed a joint reply in
support of the Motions, (ECF No. 681), in which Arrowood, Continental, the Allianz
Defendants, and U.S. Fire joined, (ECF Nos. 693–94, 696, 698, 700). Defendants AGF and
Old Republic each filed separate replies. (ECF Nos. 684, 699, 727.)

by substantial evidence and a fact is ‘material’ if it would constitute or irrevocably
establish any material element of a claim or a defense.” 	McVicker v. Bogue Sound
Yacht Club, Inc., 257 N.C. App. 69, 72, 809 S.E.2d 136, 139 (2017) (quoting Lowe v.
Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982)). 	“Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion . . . and means more than a scintilla or a permissible inference[.]” DeWitt
v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (citations and
internal quotation marks omitted). 	“Evidence presented by the parties is viewed in
the light most favorable to the non-movant.” Summey v. Barker, 357 N.C. 492, 496,
586 S.E.2d 247, 249 (2003) (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829,
835 (2000)).
18. 	The moving party bears the burden of showing that there is no genuine issue
of material fact. 	Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d
118, 124 (2002). This burden can be met either: “(1) ‘by proving an essential element
of the opposing party’s claim does not exist, cannot be proven at trial, or would be
barred by an affirmative defense’; or (2) ‘by showing through discovery that the
opposing party cannot produce evidence to support an essential element of [its]
claim.’ ” Strickland v. Lawrence, 176 N.C. App. 656, 661, 627 S.E.2d 301, 305 (2006)
(quoting Dobson, 352 N.C. at 83, 530 S.E.2d at 835). 	If the moving party meets its
burden, “the burden shifts to the nonmoving party to produce a forecast of evidence
demonstrating specific facts, as opposed to allegations, showing that he can at least
establish a prima facie case at trial.” Gaunt v. Pittaway, 139 N.C. App. 778, 784–85,

534 S.E.2d 660, 664 (2000); see also N.C. R. Civ. P. 56(e) (“[A]n adverse party 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.”).
III.
ANALYSIS
19. 	The Insurers contend that under the Policies, a qualifying “occurrence” and
qualifying “property damage” must begin during the policy period for coverage to be
triggered. The Insurers argue that this interpretation is compelled by the Supreme
Court of North Carolina’s decision in Gaston County Dyeing Machine Co. v. Northfield
Insurance Co., 351 N.C. 293, 524 S.E.2d 558 (2000), in which the Supreme Court
interpreted the policy language at issue in that case to provide that “when . . . the
accident that causes an injury-in-fact occurs on a date certain and all subsequent
damages flow from the single event, there is but a single occurrence; and only policies
on the risk on the date of the injury-causing event are triggered[,]” id. at 304, 524
S.E.2d at 565; (Chubb Defs.’ Supp. Br. 2–4, 14–16; AEGIS Defs.’ Supp. Br. 2–3, 7–9).
20. 	The 	Insurers 	further 	contend 	that 	the 	reports 	and 	testimony 	of 	two
consultants Duke hired to complete groundwater modeling required under North
Carolina’s 	2014 	Coal 	Ash 	Management 	Act 	(“CAMA”), 	Dr. 	William 	Langley
(Riverbend modeling lead) and Dr. Ronald Falta (Weatherspoon modeling lead),
establish as a matter of law that groundwater contamination, and hence “property

damage” under the Policies (and “injury-in-fact” under Gaston), occurred at each site
in the 1950s.14
21. 	The Insurers also point to Duke’s statements in its opposition brief that
groundwater “was continuously and repeatedly exposed to CCR constituents over the
entire period of operation of the ash ponds[,]” (Duke’s Opp’n Br. 5), and that “the
damage to groundwater due to CCR constituents took place each year[,]” (Duke’s
Opp’n Br. 27), as confirmatory admissions that the first damage to groundwater or
“injury-in-fact” at the Riverbend and Weatherspoon ash ponds occurred in the 1950s,
(Joint Reply Br. 1–2).
22. 	Because the earliest Chubb Policy was issued in 1979 and the earliest
AEGIS Defendant Policy was issued in 1981, the Insurers contend that Duke’s
alleged property damage (and “injury-in-fact” under Gaston) began long before the
Policies were in effect, thereby precluding coverage. 	(Chubb Defs.’ Supp. Br. 3;
AEGIS Defs.’ Supp. Br. 18.)
23. 	The Insurers’ argument on the Motions therefore requires the Court to
conclude as a matter of law that, applying Gaston as interpreted by the Insurers, the
undisputed facts on the current record show (i) Duke’s alleged “property damage” or
14 (See Chubb Defs.’ Supp. Br. 6–9; Heskin 1st Aff. Ex. 7 Excerpts Dep. Tr. William Langley,
dated September 20, 2019, at 39–40, ECF No. 573.7; Heskin 1st Aff. Ex. 1, at 36; Heskin 1st
Aff. Ex. 2, at Sections 1.2, 5.3, 4.10, Figures 17, 111; Heskin 1st Aff. Ex. 5 2017
Comprehensive Site Assessment Update for the Riverbend Steam Station, dated October 31,
2017, at DUKE_CAIR_006079777 et seq., ECF No. 573.5; AEGIS Defs.’ Supp. Br. 11–17;
Mann Aff. Ex. K Excerpts Dep. Tr. Dr. Ronald Falta, Jr., Ph.D, dated January 31, 2019, at
83:2–3, 83:10–11, 85: 1–5, 86:16–87:9, ECF No. 596.11; Mann Aff. Ex. N, at 12–14; Mann Aff.
Ex. O Excerpts Report Entitled “Proposed Groundwater Assessment Work Plan” W.H.
Weatherspoon Power Plant, revised December 2014, at 50, ECF No. 596.15.)

“injury-in-fact” occurred on “date[s] certain” at Riverbend and Weatherspoon before
the Policies incepted and (ii) Duke’s subsequent damages all flowed from a “single
event” at each site. 	The Court concludes that it cannot reach these conclusions on
the current record.
24. 	Even if Gaston applies as the Insurers contend, the Insurers make too much
of the reports and testimony of Duke’s consultants on the Motion. 	Duke’s evidence
shows that Drs. Langley and Falta were tasked with modeling possible future
groundwater impacts resulting from various potential ash pond closure plans.15 To
estimate future groundwater contamination, the consultants assumed, but did not
verify or confirm, that groundwater contamination at Riverbend and Weatherspoon
began on the day that each of the ash basins was placed in operation. 	(Falta Aff.
¶¶ 4–8; 	Langley 	Aff. 	¶¶ 	4–7.) 	Such 	assumptions 	about 	past 	groundwater
contamination do not conclusively establish the date “property damage” or “injury-in-
fact” occurred at either site, particularly given both consultants’ affidavit testimony
confirming that their assumptions were not intended to substitute for a rigorous
investigation 	and 	determination 	of 	the 	commencement 	of 	groundwater
contamination at either site. 	(Falta Aff. ¶ 8; Langley Aff. ¶ 6.) 	As such, this
15 (See Duke’s Opp’n Br. Ex. 6 Excerpts William G. Langley, Ph.D., P.E. Dep. Tr. (Sept. 20,
2019), at 86:16–87:2, 106:18–22, ECF No. 662.1; Duke’s Opp’n Br. Ex. 8 Excerpts Ronald W.
Falta, Jr. Dep. Tr. (Jan. 31, 2019), at 82:19–83:17, 84:1–85:5, 86:16–87:9, ECF No. 662.1;
Duke’s Opp’n Br. Ex. 9 Aff. Ronald W. Falta, Jr. (Jan. 15, 2020) ¶¶ 4–8 [hereinafter “Falta
Aff.”], ECF No. 662.1; Duke’s Opp’n Br. Ex. 10 Aff. William G. Langley (Jan. 16, 2020) ¶¶ 4–
7 [hereinafter “Langley Aff.”], ECF No. 662.1; Duke’s Opp’n Br. Ex. 11 Excerpts Groundwater
Flow & Transport Modeling Report W.H. Weatherspoon Power Plant, Lumberton, NC (Oct.
28, 2015), at 17–18, ECF No. 662.1.)

evidentiary premise of the Motions cannot be sustained as a matter of law on the
current record.
25. 	Similarly, 	Duke’s 	statements 	in 	its 	opposition 	brief 	suggesting 	that
groundwater was “continuously and repeatedly exposed to CCR constituents over the
entire period of operation of the ash ponds[,]” (Duke’s Opp’n Br. 5), are forecasts of
evidence, not record evidence establishing undisputed facts. Even if the Court were
to accept these forecasts as stipulations of fact as urged by the Moving Defendants, it
appears that evidence to be developed through expert discovery may be relevant to
the Court’s determination of the issues raised by the Motions, including evidence
concerning the causes of groundwater contamination at the two sites, the level of
leached 	CCR 	constituents 	in 	each 	site’s 	groundwater 	necessary 	to 	constitute
“property damage” under the Policies, when alleged “property damage” first occurred
at each site, and whether alleged “property damage” occurred once or on multiple
occasions, all of which is the focus of ongoing expert discovery.
26. 	The 	Court 	therefore 	concludes 	that 	a 	determination 	of 	the 	Motions,
including on the separate grounds advanced by AGF and Old Republic, may require
consideration of expert testimony and is therefore premature. Accordingly, the Court
concludes that the Motions should be denied at this time without prejudice to the
Insurers’ rights to renew the Motions after expert discovery is concluded.

IV.
CONCLUSION
27. 	WHEREFORE, the Court, for the reasons stated above, hereby DENIES
the Chubb Defendants’ Motion and the AEGIS Defendants’ Motion without prejudice
to the Insurers’ rights to renew either or both Motions after the completion of expert
discovery.16
SO ORDERED, this the 5th day of June, 2020.
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge
16 The Insurers objected at the Hearing to Duke’s use of slides 6–12 of Duke’s demonstrative
exhibits for lack of an evidentiary foundation. The Court sustains the Insurers’ objection at
this time and has not considered any of the information contained in those slides in its
determination of the Motions. 	The Court, however, will permit Duke an opportunity to
provide such an evidentiary foundation in the event one or both Motions are renewed after
the completion of expert discovery.

APPENDIX A
Policies at Issue on the Motions
Chubb Defendants’ Policies
California Union Policy ZCX 00 38 58 (ECF No. 573.8)
California Union Policy ZCX 00 60 09 (ECF No. 573.10)
PEIC Policy XCC 00 23 83 (ECF No. 573.11)
Federal Policy (85) 7929-31-72 (ECF No. 573.13)
California Union Policy ZCX 00 74 50 (ECF No. 573.14)
AEGIS Defendants’ Policies
ACI Policy No. CC-00-26-13 (ECF No. 596.4)
Ranger Policy No. EUL 300659 (ECF No. 596.5)
Ranger Policy No. EUL 300578 (ECF No. 596.6)
AEGIS Policy No. 211 CNJ (ECF No. 596.7)
Ranger Policy No. BSP 122048 (ECF No. 596.8)
Joining Defendants’ Policies (Chubb Defendants’ Motion)
Combined Companies Policy No. 881/UGL 1333 (ECF Nos. 601.2–.3)
Old Republic Policy No. OZX11486 (ECF No. 605.1)
AEGIS Policy No. 172 (ECF No. 591.7)
ACI Policy No. CC-00-12-63 (ECF No. 591.8)
ACI Policy No. CC-00-26-11 (ECF No. 591.9)
Ranger Policy No. BSP 122047 (ECF No. 591.10)
Ranger Policy No. 300658 (ECF No. 591.11)
Ranger Policy No. 300579 (ECF No. 591.12)
AEGIS Policy No. 209CNJ (ECF No. 591.13)
London Guarantee and Accident Company of New York Policy No. LX327883617
London Guarantee and Accident Company of New York Policy No. LX1898119
(Heskin 2nd Aff. Ex. 51, ECF No. 578.6)
Allianz Underwriters, Inc. Policy No. AUX 5 20 05 14 (Heskin 2nd Aff. Ex. 7, ECF
No. 578.1)
Allianz Insurance Company Policy No. XL 55 95 37 (Heskin 2nd Aff. Ex. 8, ECF No.
578.1)
FFIC Policy No. XLX-153 09 17 (Heskin 2nd Aff. Ex. 19, ECF No. 578.2)
FFIC Policy No. XLX-153 10 24 (Heskin 2nd Aff.. 20, ECF No. 578.2)
FFIC Policy No. XLX-168 70 03 (Heskin 2nd Aff. Ex. 21, ECF No. 578.3)
17 (See Aff. Shane R. Heskin Supp. Defs.’ Opp’n Pls.’ Mot. Partial Summ. J. Regarding Scope
Coverage & Conditional Cross-Mot. Partial Summ. J. Regarding Allocation [hereinafter
“Heskin 2nd Aff.”] Ex. 50, ECF No. 578.5.)

FFIC Policy No. XLX-168 70 08 (Heskin 2nd Aff. Ex. 22, ECF No. 578.3)
Royal Indemnity Company Policy No. EC 103320 (Heskin 2nd Aff. Ex. 12, ECF No.
578.2)
Joining Defendants’ Policies (AEGIS Defendants’ Motion)
FFIC Policy No. XLX-153 09 17 (Heskin 2nd Aff. Ex. 19, ECF No. 578.2)
U.S. Fire Policy No. 522 020271 6 (ECF No. 617.1)
PEIC Policy No. XCC 00 23 80 (Heskin 2nd Aff. Ex. 55, ECF No. 578.6)
PEIC Policy No. XCC 01 24 37 (Heskin 2nd Aff. Ex. 57, ECF No. 578.6)
Federal Policy No. (85) 7929-31-63 (Heskin 2nd Aff. Ex. 18, ECF No. 578.2)