United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
matter comes before the court on the Motion to Strike
Defendant's Counterclaim Counts I Through V [Doc. #24');">24] by
plaintiff Explorer Pipeline Company (“Explorer”).
For the reasons set forth below, the motion is granted.
However, defendant American Guarantee & Liability
Insurance Company (“AGLIC”) may amend its
counterclaim to assert a single claim for declaratory
judgment within ten (10) days of the entry of this order.
issued an excess liability policy to Explorer, designated
policy no. EOG 9309894 01, for the effective period of
October 1, 2003 to October 1, 2004.
September 28, 2014, a pipeline owned and operated by Explorer
ruptured, resulting in the release of diesel fuel into the
environment near Holdenville, Oklahoma. At the behest of the
Oklahoma Corporation Commission (“OCC”), Explorer
investigated the rupture and undertook remediation efforts.
sought indemnification under the AGLIC policy for amounts in
excess of fifty million dollars ($50, 000, 000.00)-the
collective policy limits of two underlying insurance policies
issued to Explorer by National Union Fire Insurance Company
of Pittsburgh, PA and Allied World Assurance Company, Ltd.,
respectively-associated with the investigation and
remediation. AGLIC made an initial payment to Explorer in the
amount of two million dollars ($2, 000, 000.00), but, to
date, has not made any additional payments.
12, 2017, Explorer initiated this litigation against AGLIC.
Explorer asserts a breach of contract claim and seeks a
declaratory judgment that “the Policy provides full
coverage for payment of past costs expended and all future
costs to be incurred by Explorer to complete remediation of
the Release and restoration of the land in accordance with
the requirements of the OCC until Policy limits are
exhausted.” [Doc. #2, p. 7 ¶ 42].
31, 2017, AGLIC filed its Answer and Affirmative Defenses
[Doc. #18], and Counterclaim [Doc. #19]. In its Answer and
Affirmative Defenses, AGLIC asserted ten affirmative
First Affirmative Defense
50. Explorer's Complaint fails to state a claim upon
which relief can be granted.
Second Affirmative Defense
51. Coverage under the AGLIC Policy, and each policy
underlying the AGLIC Policy, is subject to all of the terms
of those policies, including the terms, provisions,
definitions, exclusions and conditions to coverage. AGLIC has
no duty or obligation to indemnify Explorer, or any coverage
obligations may decrease, to the extent (i) there is no
coverage available for the Contamination or Remediation, in
whole or in part, under the National Union Policy to which
the AGLIC policy follows form, or under the AWAC Policy;
and/or (ii) the Remediation costs, or other costs, incurred
by Explorer were neither reasonable nor necessary.
Third Affirmative Defense
52. Explorer failed to comply with its duty to mitigate,
minimize, or avoid its claimed losses related to the