NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-2687

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PENN NATIONAL INSURANCE COMPANY,

Appellant

v.

NORTH RIVER INSURANCE COMPANY; 

ABC INSURANCE COMPANIES (1-5) (fictitious names)

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On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 2-09-CV-04644)

District Judge: Hon. Katharine S. Hayden

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Submitted Under Third Circuit L.A.R. 34.1(a)

May 24, 2019

Before: MCKEE, SHWARTZ, and FUENTES, Circuit Judges.

(Opinion Filed: July 30, 2019)

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OPINION**

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** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

FUENTES, Circuit Judge.

This appeal asks us to consider the liability of an excess insurance carrier, North 

River Insurance Company, for payments made on behalf of an insured in three 

environmental waste lawsuits, involving three sites: the Helen Kramer landfill, the Buzby 

landfill, and the BEMS landfill. The District Court concluded that the statute of limitations 

had run with respect to the lawsuit over the Helen Kramer landfill, granting summary 

judgment to North River. The District Court also concluded that North River was not 

responsible for contribution on the Buzby and BEMS lawsuits, because the primary insurer, 

Penn National, had not exhausted its policy limits. On the first issue, we agree with the 

District Court’s grant of summary judgment to North River regarding the Helen Kramer 

landfill lawsuit. On the second, we remand so that the District Court may more fully 

consider: (1) the applicability of Carter-Wallace, Inc. v. Admiral Insurance Co.;

1

and (2) 

whether there was an aggregate policy limit in effect that required North River to contribute 

to the Buzby and BEMS landfill settlements.

2

I.

Gus Bittner, Inc., a non-party, is a now-defunct waste hauling business that operated 

from the late 1950s through early 1996. For a ten-year period beginning January 1976, 

Bittner was insured by Penn National under a series of insurance policies and had 

 

1 712 A.2d 1116 (N.J. 1998).

2 As we discuss later, consideration of the applicability of Carter-Wallace does not 

disturb any settlement the parties may have entered into with respect to the Helen Kramer 

landfill, but the District Court may consider any settlement as part of the Carter-Wallace 

analysis.
3

umbrella/excess insurance policies from North River.3 Below is a summary of the relevant 

insurance policy limits during that time period.

Date Penn National North River

January 1976–

January 1979 $100,000 (per occurrence) $2,000,000 (aggregate)

January 1979–

January 1982 $100,000 (per occurrence) $3,000,000 (aggregate)

January 1982–

January 1985 $500,000 (per occurrence) $10,000,000 (aggregate)

The heart of Penn National and North River’s dispute is their respective obligations to 

provide coverage for Bittner in light of three environmental lawsuits it faced. The lawsuits

involved Bittner’s hauling activities at three landfills: the Buzby landfill, located in 

Voorhees, New Jersey; the BEMS landfill, located in Burlington County, New Jersey; and 

the Helen Kramer landfill, located in Mantua, New Jersey. Penn National spent $2.55 

million in indemnity payments on behalf of Bittner in connection with the Helen Kramer 

landfill lawsuit, $99,590 in connection with the Buzby landfill lawsuit, and $48,013 in 

connection with the BEMS landfill lawsuit. Penn National has also paid certain defense 

costs for Bittner. North River has contributed $349,680, which went toward the Helen 

Kramer landfill settlement. In 2007, Penn National informed North River that its policy 

limits had been exhausted for the 1982–86 policy years, and when North River declined to 

assume Bittner’s defense and indemnification costs, this lawsuit followed. Penn National 

brought three claims against North River: a claim for declaratory judgment, a breach of 

contract claim, and an unjust enrichment claim.

 

3 Penn National’s coverage of Bittner extended a year beyond that, to January 1986. That 

coverage year is not related to this lawsuit.
4

Penn National argued that under the insurance allocation scheme set forth in CarterWallace, Inc. v. Admiral Insurance Co., North River should be required to contribute more 

for Bittner’s indemnification and defense costs. North River put forward three relevant 

arguments: (1) because the Helen Kramer landfill case was settled in 1998, Penn 

National’s claims were time barred; (2) North River’s contribution of approximately 

$350,000 toward the Helen Kramer landfill settlement constituted a conclusive and binding 

settlement between the parties; and (3) because Penn National’s policy form for the 1982–

1983 policy year did not include an aggregate policy limit, it did not owe any money toward 

the Buzby and BEMS landfill investigations.

In 2012, both parties moved for summary judgment. The District Court denied both 

motions, concluding that there were two issues of fact precluding summary judgment: first, 

whether North River’s Helen Kramer landfill payment constituted a settlement between the 

parties; and second, whether Penn National’s 1982–1983 policy contained an aggregate 

limit.

The parties moved for summary judgment again in 2016. This time, the District 

Court granted North River’s motion, concluding that Penn National’s claims were timebarred. Specifically, the District Court determined that each of the landfill claims 

constituted separate occurrences under New Jersey law. The court then concluded that 

because the Helen Kramer landfill lawsuit settled in 1998, Penn National’s claims were 

time barred with respect to that lawsuit. Because the other claims did not reach Penn 

National’s per occurrence policy limits, the court found that Penn National also could not 

establish its claims with respect to the BEMS and Buzby landfills. This appeal followed.
5

4

II.

Penn National’s primary argument is that the District Court erred by holding that 

the statute of limitations had expired on Penn National’s claims with respect to the Helen 

Kramer landfill. It argues that because Bittner’s hauling activities were implicated in each 

of the three cases, they constitute a single occurrence under New Jersey law, and as such, 

the statute of limitations did not begin to run until the resolution of the BEMS litigation in 

2011.

The District Court resolved this question by looking to guidance from the New 

Jersey Appellate Division.5 In Doria v. Insurance Co. of North America, the appellate 

division explained that “for the purpose of counting the number of occurrences, the term 

must be construed from the point of view of the cause or causes of the accident rather than

its effect.”6 Thus, the damages that resulted from a young boy falling into an abandoned 

pool and the damages that resulted from his brother, who fell in trying to help him, 

constituted a single occurrence under the pool owners’ insurance agreement.7 The court 

emphasized that both boys were injured due to a single cause—the failure of the pool 

owners to fence and cover their pool—and their injuries were closely connected in space 

 

4 The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a) because Penn 

National is incorporated in Pennsylvania and has its principal place of business there, while 

North River is incorporated in New Jersey and has its principal place of business there. We 

have jurisdiction to review the District Court’s order granting North River summary 

judgment under 28 U.S.C. § 1291.

5 The decisions of state intermediate appellate courts “are not automatically controlling;”

however, they can provide us assistance in “predicting how the state’s highest court would 

rule.” Edwards v. HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir. 2007) (citation omitted).

6 509 A.2d 220, 223 (N.J. Super. Ct. App. Div. 1986).

7

Id. at 224–25.
6

and time.8 Under Doria, the District Court determined that Penn National’s arguments 

were insufficient because “Bittner hauled to separate landfills, in separate geographical

locations, at separate times over the course of nearly a decade, causing alleged 

environmental damage at distinct and discrete locations.”

9

We agree. First, Penn National argues that the District Court erred because it 

should have recognized that all of the damages in this case arise from the “common cause” 

of “Bittner’s hauling of hazardous waste.”10 Penn National points us to Liberty Mutual 

Insurance Co. v. Treesdale, Inc., in which we determined that claims relating to Treesdale’s 

manufacturing of an asbestos-containing product, Soffelex, constituted a single occurrence 

under Liberty Mutual’s insurance policy.11 However, Treesdale was a products liability

case in which the damages all arose from a single product containing asbestos.12 Here, in 

contrast, Bittner hauled various forms of waste to three discrete landfills at different times. 

There is no evidence of a temporal or spatial connection and no evidence of a common 

cause beyond Penn National’s vague assertion that the damages all arose from Bittner’s 

 

8

Id.

9 Penn Nat’l Ins. Co. v. Crum & Foster Ins. Co., Civ. A. No. 09-CV-4644, 2012 WL 

12914667, at *3 (D.N.J. Nov. 20, 2012). The District Court also found support for its 

conclusion in the testimony of Penn National’s corporate designee, who explained that the 

company viewed Bittner’s hauling activities at different landfills as separate occurrences. 

Additionally, the Court noted that Penn National’s argument that its claims were not ripe 

until the settlement of the BEMS litigation in 2011 was belied by the fact that it initiated 

this lawsuit in 2009, before the litigation was settled.

10 Appellant’s Br. at 28.

11 418 F.3d 330, 339 (3d Cir. 2005). Treesdale applies Pennsylvania law, under which 

courts to use a cause of loss test to define an occurrence under an insurance policy. Id. at 

335–36. The Pennsylvania test therefore has a slightly different focus than the one outlined 

by the New Jersey Appellate Division.

12 Id. at 333.
7

“hauling” activity.

13

 In this case, Bittner was a waste hauling company; nearly all of its 

activities could be considered connected to hauling in some way. That is insufficient to 

show that the environmental damage at each of the three landfill sites arose from a common 

cause.

Second, Penn National argues that the District Court should not have entertained 

North River’s statute of limitations argument based on the law of the case doctrine. Under 

that doctrine, when a court “decides upon a rule of law, that decision should continue to 

govern the same issues in subsequent stages in the same case.”14 But while Penn National 

suggests that the District Court “rejected” North River’s statute of limitations argument in 

2012,15 the record does not support that suggestion. In fact, the 2012 denial of summary 

judgment makes no mention of the statute of limitations. Because the law of the case 

doctrine only applies where there was an “actual decision” of the issue, we conclude that 

the doctrine does not apply here.16

Third, Penn National argues that even if the District Court properly rejected its 

breach of contract claim based on the statute of limitations, the District Court should not 

 

13 Appellant’s Br. at 28.

14 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting Arizona 

v. California, 460 U.S. 605, 618 (1983)).

15 Appellant’s Br. at 31.

16 Farina v. Nokia Inc., 625 F.3d 97, 117 n.21 (3d Cir. 2010). The doctrine can apply to 

issues “decided by necessary implication.” Bolden v. SEPTA, 21 F.3d 29, 31 (3d Cir. 

1994). While the factual dispute over the Helen Kramer landfill settlement would not have

mattered had the District Court decided that the statute of limitations barred that claim, the 

District Court also denied summary judgment because of the dispute over the Penn 

National’s aggregate policy limit. A decision on North River’s statute of limitations 

argument was therefore not necessary to its holding. 
8

have dismissed its equitable claim for unjust enrichment. Penn National argues that this 

claim is governed by the doctrine of laches rather than the statute of limitations for express 

and implied contractual claims.

17

 We disagree for two reasons. First, unjust enrichment is 

a quasi-contractual claim, and while equitable in nature, those claims are subject to the sixyear statute of limitations.18

 Second, even if the unjust enrichment claim were governed 

by the doctrine of laches, where an equitable cause of action is “analogous to the one at 

law,” the laches consideration may “depend solely on the comparable statute of 

limitations.”19 Penn National’s unjust enrichment and declaratory judgment claims are 

analogous to its contractual claim. All three claims seek to require North River to 

contribute to its costs indemnifying and defending Bittner. None of Penn National’s 

arguments counsel against using the comparable six-year statute of limitations. Therefore, 

we believe the doctrine of laches would not support Penn National’s equitable claims.20

 

17 Unlike the statute of limitations, the time constraints of laches “are not fixed but are 

characteristically flexible.” Lavin v. Bd. of Educ. of Hackensack, 447 A.2d 516, 519 (N.J. 

1982). Courts may consider, among other things, “[t]he length of delay, reasons for delay, 

and changing conditions of either or both parties.” Id. at 520.

18 Baer v. Chase, 392 F.3d 609, 621–22 (3d Cir. 2004) (“[U]nder New Jersey law, nonpersonal injury actions involving monetary damages must be ‘commenced within 6 years 

after the cause of any such action shall have accrued.’ Moreover, there is no dispute 

between the parties that the six-year statute of limitations governs quasi-contract claims.” 

(quoting N.J. Stat. Ann. § 2A:14-1) (internal citation omitted)). 

19 Lavin, 447 A.2d at 520 n.1.

20 Because we conclude that all of Penn National’s claims arising from the Helen Kramer 

landfill lawsuit are time-barred, we need not consider North River’s second argument that 

the parties entered into a settlement relieving North River of any further obligations it had 

for indemnification of Bittner’s costs in that lawsuit. 
9

III.

Penn National argues that even if we agree that the District Court correctly 

determined that the statute of limitations expired with respect to recovery on the Helen 

Kramer landfill, the District Court erred by dismissing Penn National’s claims because it 

could still recover indemnification and defense costs on the Buzby and BEMS landfills.

The District Court reasoned that Penn National’s costs associated with the Buzby 

and BEMS landfills did not reach the per occurrence policy limits required to trigger 

coverage by North River. But Penn National argues that its 1982–83 policy also included 

a $500,000 aggregate limit, which it exceeded once its payment on the Helen Kramer 

landfill was allocated across the relevant policy years under Owens-Illinois, Inc. v. United 

Insurance Co. and Carter-Wallace.

21

 Because the aggregate limit was exceeded, Penn 

National claims that it is owed contribution from North River for the Buzby and BEMS 

landfill payments.

The question of which policy form applied to Penn National’s coverage of Bittner 

in the 1982–83 policy year was one of the two central issues in Penn National’s 2012 

 

21 In Owens-Illinois, the New Jersey Supreme Court adopted the continuous trigger theory 

of liability for long-term exposure to asbestos. 650 A.2d 974, 993 (N.J. 1994). Under this 

theory, courts treat the exposure to the dangerous condition as an occurrence within an 

insurance policy and allocate the liability among insurance policies in proportion to the 

coverage limit set by the insurer in each policy year within the trigger period. Id. at 994. 

In Carter-Wallace, the New Jersey Supreme Court recognized that the continuous trigger 

theory applied to occurrences involving progressive environmental property damage. 712 

A.2d at 1121. The court also explained that, where an insured has both primary and excess 

coverage, courts should use the total insurance coverage available in each policy year to 

allocate the damages across the trigger period and should then allocate costs to insurers 

within a policy year by reference to the limits set forth in each insurer’s policy. Id. at 1124. 
10

summary judgment motion. During discovery, Penn National conceded in interrogatories 

that policy form 73-3007 applied, a position echoed in the deposition of its senior claims 

examiner. However, in its opening brief, it attached an exhibit purporting to show that 

policy form GL9917, rather than form 73-3007, applied. The claims examiner then filed 

an affidavit, attached to Penn National’s reply brief, explaining that the prior identification 

of form 73-3007 was in error and that form GL9917 applied. The District Court determined 

that the conflicting evidence created an issue of material fact that made summary judgment 

inappropriate. 

Since then, another claims examiner later agreed that form GL9917 applied to the 

1982–83 policy year. Nevertheless, we cannot say the District Court’s decision was in 

error for two reasons. First, as North River points out in its briefing, complete copies of 

the policies could not be located by Penn National, and therefore it is possible that the 

endorsements Penn National points to are incomplete. Second, and more importantly, even 

if form GL9917 applies, it is unclear that Penn National’s policy contained a $500,000 

aggregate limit that would be relevant to the resolution of this case. The form explains that 

“such aggregate limit shall apply separately . . . with respect to each project away from 

premises owned by or rented to the named insured.”22 None of the landfills involved in 

this case were rented or owned by Bittner, and Penn National does not address, much less 

explain, this language in its policy form. Thus, there remain factual questions about the 

existence and effect of an aggregate policy limit that make summary judgment on this issue 

 

22 A. 167.
11

inappropriate.

Accordingly, we affirm the District Court’s denial of Penn National’s motion for 

summary judgment. We note, however, the District Court did not address Penn National’s 

legal arguments as to whether the payment for the Helen Kramer landfill should have been 

subjected to Carter-Wallace allocation, even though it is no longer recoverable, and 

whether that payment would have exhausted Penn National’s aggregate policy limit, if such 

limit existed. While Penn National was not entitled to summary judgment, there may be a 

narrow path forward for recovery if it can show that it had an aggregate policy limit that 

applied to all of the landfills and that the payment toward the Helen Kramer landfill 

settlement exhausted its limits for the 1982–83 year. We therefore vacate and remand for 

the limited issue of North River’s liability under Carter-Wallace for contribution toward

the settlement of the BEMS and Buzby landfill claims.23 

IV.

For the foregoing reasons, we affirm in part and vacate and remand in part.

 

23 On appeal, North River argued that Penn National abandoned its position on the Buzby 

and BEMS landfills at a conference before the District Court on July 7, 2017. We do not 

consider this point because the transcript of that conference is not part of the record; 

however, North River is free to raise the issue on remand.