O'Neill Automotive, Inc. v. Federated Mutual Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
O’NEILL AUTOMOTIVE, INC.,
Plaintiff,
v.
FEDERATED MUTUAL INSURANCE
COMPANY,
Defendant.
Case No. 2:24-cv-02237-HLT
MEMORANDUM AND ORDER
Plaintiff O’Neill Automotive, Inc., owned property where it operated a car dealership. As
it was preparing to sell the land, inspections revealed that an oil-water separator on the property
caused an underground environmental contamination. O’Neill eventually sought coverage from
Defendant Federated Mutual Insurance Company under a policy that provided pollution liability
coverage. Federated denied coverage, however, because the pollution incident arose underground
and, under the relevant policy provision, the policy only provides coverage for a release of
pollutants aboveground. Federated also later cited the timing of the claim made by O’Neill, which
was not made until a year and two days after the policy ended and well after O’Neill first learned
of the issue.
O’Neill filed this suit alleging a breach of contract. Federated asserts several defenses. Both
parties move for summary judgment and raise several issues. The Court finds that the insurance
policy only applies to the spill, overflow, or release of pollutants “on or above the surface of the
ground.” It is undisputed that the release of pollutants was entirely underground. Coverage does
not apply under the unambiguous language of the policy, and Federated is entitled to summary
judgment. Federated’s motion (Doc. 53) is therefore granted on this basis. The Court does not need
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to reach the other issues raised by the parties in their motions. The Court denies as moot the
remainder of Federated’s motion and O’Neill’s motion (Doc. 56) and denies as moot the motion
to exclude expert testimony (Doc. 54).
I. 	BACKGROUND1
O’Neill owned property located at 7979 Metcalf Avenue in Overland Park, Kansas. SOF
1. The property had two oil-water separators installed in 1985. SOF 2. These separators received
runoff from a service and auto shop on the property. SOF 4. They were designed to separate
petroleum-based substances from water and discharge the water into the sewer system. SOF 5.
In March 2020, an investigation related to the sale of the property revealed some potential
environmental concerns. SOF 25-26, 30, 131. Terracon was retained to address the environmental
concerns. SOF 34. Terracon performed a limited site investigation in June and July 2020. SOF 39.
Terracon found evidence of environmental contamination around one of the oil-water separators.
SOF 133. In June 2020, Terracon recommended that O’Neill apply for a voluntary clean-up
program with the Kansas Department of Health and Environment (“KDHE”). SOF 36. In July
2020, O’Neill, through a related entity, entered into a voluntary clean-up agreement with KDHE.
SOF 38. At a minimum, O’Neill was aware that there was an environmental problem at the site by
July 31, 2020. SOF 42.
On May 1, 2020, O’Neill purchased a Pollution Liability Policy from Federated. SOF 6.
The policy had a retroactive date of May 1, 2018. SOF 7. The policy states, in part, that Federated
“will pay on behalf of the insured those sums in excess of any deductible amount that the insured
becomes legally obligated to pay as . . . ‘clean up costs’ because of ‘environmental damage’ to
1 	The following facts are undisputed and construed in favor of the non-moving party. The Court has considered both
motions in their entirety but only includes the facts relevant to the analysis in this order. “SOF” refers to the
statement of facts listed in Federated’s supporting memorandum, Doc. 60, and the additional numbered facts in
O’Neill’s response, Doc. 65.
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which this insurance applies.” SOF 9; see also Doc. 60-2 at 19 (quoting Subsection 1.a.). The
policy goes on to state:
1. 	Insuring Agreement
. . . .
b. 	This insurance applies to “bodily injury”, “property damage”, or
“environmental damage” only if:
(1) The “bodily injury” or “property damage” or “environmental
damage” is caused by a “pollution incident” from an
“insured site” in the “coverage territory;”
(2) The “bodily injury” or “property damage” or “environmental
damage” is caused by a “pollution incident” that commences
on or after the Retroactive Date shown in the Declarations
for the applicable location;
(3) The insured’s responsibility to pay compensatory damages
because of “bodily injury” or “property damage” or “cleanup
cost” 	[sic] 	because 	of 	“environmental 	damage” 	is
determined in a “suit” on the merits in the “coverage
territory” or in a settlement made with our prior consent; and
(4) A claim for compensatory damages because of “bodily
injury” or “property damage”, or for payment of “cleanup
costs” [sic] because of “environmental damage” is reported
in accordance with Section 1, Part 2. Claims Reporting.
(5) The insured provides proof there was a “pollution incident”
from an “insured site” which arose directly from:
(i) 	A spill, overflow or release of “pollutants” on or above
the surface of the ground which commences on or after
the Retroactive Date stated in the Declarations for the
applicable location and which is reported to us within
120 hours of the spill, overflow or release; or
(ii) 	An 	emission, 	discharge, 	release 	or 	escape 	of
“pollutants” 	from 	a 	“waste 	facility” 	which
commences, in its entirety, on or after the Retroactive
Date stated in the Declarations for the applicable
location and we are promptly notified of the emission,
discharge, release or escape.
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SOF 14-16, 22 (including response); see also Doc. 60-2 at 19.2 Subsection 1.b.(5) is modified by
an endorsement titled “Limited Coverage for Aboveground Tanks.” SOF 22 (including response);
see also Doc. 60-2 at 30. That endorsement states that Subsection 1.b.(5) is replaced with the
following provision:
(5) The insured must provide proof that there was a “pollution
incident” from an “insured site” which arose directly from:
(i) 	A spill, overflow or release of “pollutants” on or above
the surface of the ground which commences on or after
the Retroactive Date stated in the Declarations for the
applicable location and which is reported to us within
120 hours of the spill, overflow or release; or
(ii) 	An 	emission, 	discharge, 	release 	or 	escape 	of
“pollutants” 	from 	a 	“waste 	facility” 	which
commences, in its entirety, on or after the Retroactive
Date stated in the Declarations for the applicable
location and we are promptly notified of the emission,
discharge, release or escape; or
(iii) 	A release from an “aboveground storage tank” with a
total capacity of 275 gallons or less or from piping
connected 	thereto, 	provided 	that 	the 	release
commences on or after the Retroactive date stated in
the Declarations for the applicable location and the
insured gives us immediate notice of the “pollution
incident”. These “pollution incidents” are only covered
at “insured sites” designated on the Supplemental
Schedule for the Declarations as having “aboveground
storage tanks”.
SOF 22 (including response); see also Doc. 60-2 at 30. As reflected, the endorsement does not
change the language of Subsection 1.b.(5)(i) or (ii) as they originally appeared in the policy, but it
does add Subsection 1.b.(5)(iii). The endorsement also slightly changes the wording of the
introductory language in Subsection 1.b.(5) from “The insured provides proof there . . .” to “The
2 	Any bolding reflects bolding in the policy. The Court uses underlining for emphasis where needed.
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insured must provide proof that there . . . .” Neither party discusses this wording change or suggests
it is significant.
Quoted words in the policy are defined in the definitions section of the policy.
“Environmental damage” is defined as “the injurious presence in or upon land, the atmosphere, or
any watercourse or body of water of solid, liquid, gaseous or thermal ‘pollutants.’” SOF 10.
“Pollutants” are “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke,
vapor, soot, fumes, acids, alkalis, chemicals and waste.” SOF 11. A “pollution incident” is an
“emission, discharge, release or escape of ‘pollutants.’” SOF 12. “Clean-up costs” are “expenses
for the removal or neutralization of ‘pollutants’ including costs, charges and expenses incurred by
geotechnical or environmental firms and their personnel to investigate, assess, remediate or
monitor the effects of any ‘pollution incident’ covered by this insurance.” SOF 13 (including
response).
O’Neill sold its property as part of an asset purchase agreement on August 3, 2020. SOF 1,
43. O’Neill requested that Federated cancel the policy on August 4, 2020. SOF 44. The policy was
canceled that day, and the unearned premium was refunded on August 5, 2020. SOF 45, 47. O’Neill
did purchase an Extended Reporting Period Endorsement. SOF 46. That endorsement states in
relevant part:
Written notice to us within 12 months after the end of the policy
period 	of 	a 	claim 	arising 	from 	a 	“pollution 	incident” 	that
commenced before the end of the policy period but not before any
applicable Retroactive Date will be deemed a claim made on the last
day of the policy period or at the time the first claim from that
“pollution incident” was made, whichever came first. The “pollution
incident” must be from an “insured site” in the “coverage territory”.
In no event shall the inclusion of these claims increase the LIMITS
OF INSURANCE as set forth in SECTION III.
Doc. 60-2 at 31.
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O’Neill first provided notice to Federated of the pollution issue on the property on
August 6, 2021, a year and two days after it canceled the policy. SOF 54. O’Neill told Federated’s
adjuster that the release mechanism of the contamination was “from a buried feeder pipe that
entered a buried oil/water separator tank.” SOF 55-56. It is undisputed that the contamination at
issue originated below ground. SOF 23; see also Doc. 51 at 3 (stipulated fact in the Pretrial Order).
There were no aboveground tanks on the property. See SOF 140.
Federated denied the claim on September 21, 2021. SOF 61. The denial letter stated, in
relevant part:
Coverage is not afforded under the Pollution Liability Policy nor
with consideration of the extended reporting period endorsement as
Federated lacks proof of a pollution incident which arose directly
from a spill, overflow or release of pollutants on or above the surface
of the ground which commenced after May 1, 2018 and was reported
to Federated within 120 hours of the spill, overflow or release.
SOF 62; see also Doc. 60-14 at 8.
II. 	STANDARD
Summary judgment is appropriate if there is “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that
genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). In applying this standard, courts view the facts and any reasonable inferences in a
light most favorable to the non-moving party. Henderson v. Inter-Chem Coal Co., 41 F.3d 567,
569 (10th Cir. 1994). “An issue of material fact is genuine if a reasonable jury could return a
verdict for the nonmoving party.” Id. (internal quotation and citation omitted).
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III. 	ANALYSIS
O’Neill alleges that Federated has a duty to provide coverage and that it breached the policy
in denying coverage. Doc. 51 at 14.3 Federated moves for summary judgment and argues that there
is no coverage under the policy given the unambiguous language of the policy and the undisputed
facts. Doc. 53 at 1. Specifically, Federated argues that O’Neill cannot meet several of the
conditions for coverage, one of which is that there was a pollution incident that arose from a spill
or release of pollutants “on or above the surface of the ground.” Because this issue is dispositive,
the Court’s analysis begins and ends with it.4
It is the insured’s burden to establish coverage under a policy. Corp. Lakes Prop., LLC v.
AmGuard Ins. Co., 649 F. Supp. 3d 1143, 1148 (D. Kan. 2023). Interpretation of an insurance
policy is a question of law for a court to decide. BancInsure, Inc. v. F.D.I.C., 796 F.3d 1226, 1233
(10th Cir. 2015). Courts should “consider the policy as a whole, rather than viewing provisions in
isolation.” Id. Unambiguous language should be “construed in its plain, ordinary, and popular
sense and according to the sense and meaning of the terms used.” Graves v. Am. Fam. Mut. Ins.
Co., 686 F. App’x 536, 538 (10th Cir. 2017) (internal quotation and citation omitted). Where the
language is unambiguous, a court should enforce the contract as made. BancInsure, 796 F.3d at
1233; Liggatt v. Emps. Mut. Cas. Co., 46 P.3d 1120, 1127 (Kan. 2002) (“When an insurance
contract is not ambiguous, the court may not make another contract for the parties.” (internal
quotation and citation omitted)).
3 	O’Neill also claims attorneys’ fees under K.S.A. § 40-256. Doc. 51 at 14. Because the Court enters judgment for
Federated, O’Neill is not entitled to fees.
4 	Federated’s other arguments are that O’Neill cannot show that the contamination of the site commenced on or after
the policy’s May 1, 2018 retroactive date, nor can it show that it gave notice as soon as possible or in any event
within the policy’s extended reporting period. See Doc. 60 at 1-2. Federated also contends an exclusion bars
coverage because the pollution began, at least in part, before May 1, 2018. Id. at 2. O’Neill’s cross-motion for
partial summary judgment challenges Federated’s defenses that notice was not timely given. See Doc. 56 at 1.
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The Court starts with the language of the policy. Section I of the policy addresses Pollution
Liability Coverage. Doc. 60-2 at 19. Subsection 1 is titled “Insuring Agreement.” Id. Subsection
1.a. explains that Federated “will pay on behalf of [O’Neill] those sums in excess of any deductible
amount that the insured becomes legally obligated to pay as . . . ‘clean up costs’ because of
‘environmental damage’ to which this insurance applies.” Id. (emphasis added). Subsection 1.b.,
as amended by the endorsement for “Limited Coverage for Aboveground Tanks,” outlines the
circumstances under which the insurance applies. See id. at 19, 30. It states:
b. 	This insurance applies to “bodily injury”, “property damage”, or
“environmental damage” only if:
(1) The “bodily injury” or “property damage” or “environmental
damage” is caused by a “pollution incident” from an
“insured site” in the “coverage territory;”
(2) The “bodily injury” or “property damage” or “environmental
damage” is caused by a “pollution incident” that commences
on or after the Retroactive Date shown in the Declarations
for the applicable location;
(3) The insured’s responsibility to pay compensatory damages
because of “bodily injury” or “property damage” or “cleanup
cost” 	[sic] 	because 	of 	“environmental 	damage” 	is
determined in a “suit” on the merits in the “coverage
territory” or in a settlement made with our prior consent; and
(4) A claim for compensatory damages because of “bodily
injury” or “property damage”, or for payment of “cleanup
costs” [sic] because of “environmental damage” is reported
in accordance with Section 1, Part 2. Claims Reporting.
(5) The insured must provide proof that there was a “pollution
incident” from an “insured site” which arose directly from:
(i) 	A spill, overflow or release of “pollutants” on or above
the surface of the ground which commences on or after
the Retroactive Date stated in the Declarations for the
applicable location and which is reported to us within
120 hours of the spill, overflow or release; or
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(ii) 	An 	emission, 	discharge, 	release 	or 	escape 	of
“pollutants” 	from 	a 	“waste 	facility” 	which
commences, in its entirety, on or after the Retroactive
Date stated in the Declarations for the applicable
location and we are promptly notified of the emission,
discharge, release or escape; or
(iii) 	A release from an “aboveground storage tank” with a
total capacity of 275 gallons or less or from piping
connected 	thereto, 	provided 	that 	the 	release
commences on or after the Retroactive date stated in
the Declarations for the applicable location and the
insured gives us immediate notice of the “pollution
incident”. These “pollution incidents” are only covered
at “insured sites” designated on the Supplemental
Schedule for the Declarations as having “aboveground
storage tanks”.
Id. (emphasis added). Subsections 1.b.(1)-(4) are connected by semi-colons and are joined by the
word “and.” The word “and” is generally conjunctive, suggesting all four items must be satisfied.
See United States v. Perez-Velasquez, 16 F.4th 729, 732 (10th Cir. 2021) (noting that “and” is
generally conjunctive while “or” is generally disjunctive). Subsection 1.b.(5) then says the insured
must provide proof of one of three circumstances that are joined by the word “or,” which suggests
only one of the items listed in Subsection 1.b.(5) needs to be satisfied. See id. A plain reading of
this language indicates that the insurance applies “only if” all the first four conditions are all
satisfied and the insured provides proof of at least one of the circumstances listed in Subsection
1.b.(5).
There doesn’t seem to be any dispute that O’Neill can show there are “clean up costs” due
to “environmental damage” caused by a “pollution incident” because of a spill of “pollutants” at
the “insured site,” as those terms are defined in the policy. See Doc. 60 at 22. Assuming O’Neill
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can satisfy the first four items,5 the Court turns to whether it can provide proof of at least one of
the items in Subsection 1.b.(5). Subsection 1.b.(5)(ii) is not at issue because it is undisputed there
is no “waste facility” on the property. Nor is there any contention that the third item in Subsection
1.b.(5)(iii), as added by the endorsement, applies because the parties agree there are no
“aboveground storage tanks” on the property. SOF 140.
That leaves only Subsection 1.b.(5)(i), which considers a “spill, overflow or release of
‘pollutants’ on or above the surface of the ground . . . .” Doc. 60-2 at 19, 30. Because it is
undisputed that the pollution incident in this case originated and occurred underground, SOF 23;
see also Doc. 51 at 3, the condition in Subsection 1.b.(5)(i) is not met either. Because O’Neill has
not provided proof of any of the circumstances in Subsection 1.b.(5), O’Neill’s claim is not a claim
for clean-up costs because of environmental damage “to which this insurance applies.” No
reasonable jury could conclude otherwise.
O’Neill contends this reading of the policy is an “unserious proposition” and a “warped
interpretation.” Doc. 65 at 22. First, it argues the plain language of the policy says Federated will
pay O’Neill for “those sums in excess of any deductible amount that the insured becomes legally
obligated to pay as . . . ‘clean up costs’ because of ‘environmental damage.’” Id. at 21 (quoting the
policy, Doc. 60-2 at 19). Because there is no dispute that the remediation costs on the property
qualify as “clean up costs” due to “environmental damage,” O’Neill claims coverage is necessarily
provided for under the policy. But O’Neill’s quote of the policy ignores the end of the sentence
that it cites. The full sentence says Federated will pay “those sums in excess of any deductible
amount that the insured becomes legally obligated to pay as . . . ‘clean up costs’ because of
5 	The parties disagree as to whether O’Neill did satisfy those items, particularly Subsections 1.b.(2) and (4). But for
purposes of this order, the Court presumes the first four items in Subsection 1.b.(1)-(4) could be met.
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‘environmental damage’ to which this insurance applies.” Doc. 60-2 at 19 (emphasis added). As
detailed above, the policy says the insurance applies “only if” the five subparagraphs listed in
Subsection 1.b. are satisfied. They are not satisfied here because none of the circumstances in
Subsection 1.b.(5) are met. O’Neill insists that the “plain language of the Policy . . . in no way
preclude[s] coverage for ‘clean up costs’ due to ‘environmental damage’ originating beneath the
surface of the ground.” Doc. 67 at 6. While that may be true, the plain language of the policy lists
specific instances where the policy applies, and none are met here.
Second, O’Neill argues that Federated improperly relied on the endorsement for “Limited
Coverage for Aboveground Tanks,” and that the parties did not “intend for coverage only on
pollution incidents originating from storage tanks ‘on or above the surface of the ground.’” Doc.
65 at 21. According to O’Neill such a limit would be nonsensical under the policy because there
were no aboveground tanks on the property. Id. There are several problems with this argument.
As discussed in the background, an endorsement to the policy altered Subsection 1.b.(5) to
add a third avenue for coverage for aboveground tanks. This endorsement added Subsection
1.b.(5)(iii) into the policy. But the endorsement only substantively modified Subsection 1.b.(5) to
add that third paragraph. See Doc. 60-2 at 19, 30. Subsections 1.b.(5)(i) and (ii) were unchanged
by the endorsement and are part of the policy with or without the endorsement, which O’Neill
implicitly acknowledges. See Doc. 65 at 22 (“[E]ndorsements and the policy should be read
together, and the policy remains in full force and effect except as altered by the endorsement.”).
O’Neill claims that Federated relied on the endorsement to deny coverage. But that is not
supported by the record. The denial letter does not cite the endorsement regarding aboveground
tanks. See generally Doc. 60-14. It only cites the original policy language, including Subsection
1.b.(5)(i) and (ii). Id. at 2. The letter denied coverage because there was no pollution incident
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arising from a spill, overflow, or release of pollutants on or above the surface of the ground. Id. at
8. This is the language of Subsection 1.b.(5)(i), which was in the original policy and was not
changed by the endorsement. Thus, Federated did not deny coverage based on the endorsement.
O’Neill goes on to argue that the denial unfairly limits coverage to “pollution incidents
originating from storage tanks ‘on or above the surface of the ground.’” Doc. 65 at 21. According
to O’Neill, this was unfair because it is undisputed there were no aboveground tanks on the
property. Id. O’Neill claims that “contorting a provision specific to surface-level spills into a
threshold barrier for all coverage . . . would render the Policy’s core protections illusory.” Doc. 67
at 1. This argument misreads the different disjunctive provisions in Subsection 1.b.(5) and
misconstrues the basis for the denial of coverage.
Aboveground tanks are only discussed in Subsection 1.b.(5)(iii). Subsection 1.b.(5)(i) does
not discuss aboveground tanks (or any type of tank) at all and does not limit coverage to spills
originating from aboveground tanks. The existence—or nonexistence—of aboveground tanks on
the property is irrelevant to whether Subsection 1.b.(5)(i) (regarding spills on or above the surface
of the ground) applies. Nor does denying coverage based on this provision make coverage under
the policy illusory. Coverage could still be provided if O’Neill provided proof of a pollution
incident arising from the spill of a pollutant above the surface of the ground. O’Neill has not done
so and, under the undisputed facts, cannot do so. The fact that coverage does not exist under the
specific circumstances at issue does not render the policy illusory.
Third, O’Neill seems to suggest Subsection 1.b.(5) only applies when it can be factually
satisfied. See id. at 5 (“Section 1.b.(5) of the policy adds a fifth contingent condition for coverage
in situations where a pollution incident occurs on or above ground or from ‘waste facilities.’”).
O’Neill offers no support for this contention. Nor is it logical. If the policy broadly covered any
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clean up costs for environmental damage due to a pollution incident, as O’Neill contends, it’s
unclear why Subsection 1.b.(5) would be needed at all. In other words, O’Neill’s reading would
render Subsection 1.b.(5) surplusage.6 This also runs counter to the plain language of the policy,
which says the insurance applies “only if” certain circumstances, including those listed in
Subsection 1.b.(5), are met.
In sum, the policy states it applies “only if” certain criteria are met. Under the undisputed
facts, O’Neill cannot satisfy at least one of those conditions. O’Neill therefore fails to carry its
burden of showing that a reasonable jury could find that there is coverage. Federated is entitled to
summary judgment.
IV. 	CONCLUSION
The Court finds there is no coverage and grants Federated summary judgment on that point.
It does not reach the other issues raised in Federated’s motion, including whether O’Neill’s
reporting of the claim a year and two days after the policy ended satisfied the notice provisions or
whether an exclusion applies. It denies the motion as moot as to those arguments. Similarly, the
Court does not reach the issues in O’Neill’s partial motion for summary judgment, which also
pertain to the notice issue, because it has found there is no coverage under the policy.
THE COURT THEREFORE ORDERS that Defendant Federated’s Motion for Summary
Judgment (Doc. 53) is GRANTED IN PART. Federated is entitled to summary judgment because
the undisputed facts show that O’Neill cannot establish there is coverage under the policy because
the pollution incident did not arise “on or above the surface of the ground.” Federated is also
granted summary judgment on O’Neill’s claim for attorneys’ fees under K.S.A. § 40-256. The
6 	There are additional notice requirements in Subsection 1.b.(5). Doc. 60-2 at 19, 30. But the language does not limit
the impact of that provision to the additional notice requirement. See id. (requiring proof of a spill “on or above
the surface of the ground . . . and which is reported to us within 120 hours . . .” (underlining added)).
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Court does not reach the other arguments raised in the motion and the remainder of the motion is
DENIED AS MOOT and WITHOUT PREJUDICE.
THE COURT FURTHER ORDERS that Plaintiff O’Neill’s Motion for Partial Summary
Judgment (Doc. 56) is DENIED AS MOOT and WITHOUT PREJUDICE.
THE COURT FURTHER ORDERS that Defendant Federated’s Motion to Exclude
Plaintiff’s Expert Witness (Doc. 54) is DENIED AS MOOT and WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: November 26, 2025 	/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE
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