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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
determining the applicability of the standard-form "sudden and accidental" and customized "accidental" exceptions to the pollution exclusion-the initial disposal of a pollutant or the subsequent leakage of the pollutant from the place of disposal. As noted above, we held that the proper focus is on the subsequent migration or leakage, and whether it was expected or intended. We relied on the decision of Missouri's intermediate court of appeals in White v. Smith, 440 S.W.2d 497, 504-09 (Mo. App. 1969), and on the persuasive authority of the decision of the district court for the Eastern District of Missouri in Aetna Casualty & Surety Co. v. General Dynamics Corp., 783 F. Supp. 1199, 1210 (E.D. Mo. 1991) (hereinafter General Dynamics), rev'd in part on other grounds, 968 F.2d 707 (8th Cir. 1992), both discussed immediately below.
In White, which involved an owned site, a slaughterhouse operator intentionally placed blood, offal, and waste material into a nearby lagoon, resulting in the contamination of a neighbor's well. White, 440 S.W.2d at 499. In concluding that the damage to the neighbor's well was caused by accident, the Missouri Court of Appeals focused not on the policyholder's initial, intentional placement of the slaughterhouse wastes into the lagoon, but rather on the subsequent migration of those contaminants. White, 440 S.W.2d at 510.
In General Dynamics, the court analyzed whether the pollution exclusion barred coverage for liability arising from shipping waste to certain landfills and in that context stated:
" he behavior of the pollutants or their seepage into the ground is accidental if the permeation was unexpected." General Dynamics, 783 F. Supp. at 1210.
In our discussion of General Dynamics and White in Emerson I, we stated:
" t made no difference * in White whether the precipitating acts causing the damage were intentional, and it made no difference in White whether they were done over a period of time. Similar to General Dynamics , the focus in each case is on the resulting damage and whether it was intentional." (Emphasis in original.) Emerson I, 319 Ill. App. 3d at 245, 743 N.E.2d at 649.
Our analysis and holding in Emerson I is further supported by Superior Equipment Co. v. Maryland Casualty Co., 986 S.W.2d 477, 481-83 (Mo. App. 1998), which is a Missouri insurance coverage case concerning liability arising from contamination at a third-party waste disposal facility. In Superior Equipment, the policyholder shipped its hazardous wastes to the waste disposal facility that ultimately became contaminated as a result of spills and leakage from the storage tanks. Superior Equipment, 986 S.W.2d at 480-81. The underlying complaint alleged that releases of pollutants had occurred at the site " 'including, but not limited to spills from bulk tanks, leaking drums and tanks, and explosions and resultant leaking from tanks.' " Superior Equipment, 986 S.W.2d at 482. The court in that case reversed a grant of summary judgment in favor of the insurers and ruled that they had a duty to defend the policyholder despite the fact that it was uncontroverted that the policyholder had intentionally shipped the wastes to the facility. Superior Equipment, 986 S.W.2d at 483. Thus, the court recognized that a mere initial intentional placement of wastes within a facility was not a dispositive factor in determining whether the pollution exclusion precludes coverage.
Republic attempts to relegate the holding of Superior Equipment solely to third-party sites and makes the same effort to so restrict our entire holding in Emerson I with respect to this issue. We reject this attempt because under the relevant policy language, such a
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