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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
distinction between owned and third-party sites is a distinction without a difference and would be wholly arbitrary. This is evidenced by Republic's inability to cite any cases in support of its proposition or, for that matter, offer cogent reasons why such a distinction would be meaningful. A distinction between owned and third-party sites would be oblivious to the specific language of the policy, which has equal application under either scenario and which, as previously noted, provides:
" his policy does not apply to liability for personal injury or property damage arising out of the discharge, dispersal, release, escape or seepage of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste material, or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water, unless such discharge, dispersal, release or escape is accidental."
By its plain language, the pollution exclusion under the policy is limited to the "discharge, dispersal, release, escape or seepage" of the pollutant. This language does not distinguish between a policyholder who disposes of waste on-site and a policyholder who instructs another to dispose of waste off-site. Whether the focus is on the initial placement, as urged by Republic, or on subsequent migration, as urged by plaintiffs, the outcome under the construction of this exclusion does not depend on the type of site involved. Under the focus on the initial placement, coverage is precluded for intentional deposits of waste, whether direct, on-site, or vicarious, off-site. Under the focus on subsequent migration, coverage depends on whether the escape of pollutants from the place of their deposit, but without regard to the ownership of the place of deposit, is sudden and accidental (or accidental).
Republic next questions the propriety of adherence to the law of the case in light of the subsequent decision of the Missouri Court of Appeals in TWA, discussed in detail below. Republic maintains that TWA is the only authoritative case on point decided by a Missouri court. This contention ignores the decision of the Missouri Court of Appeals in Superior Equipment, as well as its more broadly applicable analysis in White. Republic disagrees with the applicability of the Missouri appellate decision in White on the grounds that it focused solely on whether or not the damage was caused by "accident," within the meaning of policy's coverage, and did not purport to construe the scope of the exception to the pollution exclusion.
The language of the insurance policy in White reveals that it, in fact, was an "accident"-based policy issued prior to 1966, before the insurance industry adopted the use of the pollution exclusion. White, 440 S.W.2d at 499. The policy provided that it would pay:
"on behalf of the insured all sums * which the insured shall become legally obligated to pay as damages because of bodily injury , sickness or disease . . . and as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined." (Emphasis omitted.) White, 440 S.W.2d at 499.
The court in White, consistent with other courts at that time, extended coverage to pollution-related damage, even if it arose from the intentional discharge of pollutants, so long as the ultimate loss was not intended:
" e * align ourselves with the holdings in a larger number of jurisdictions that damages not intentionally inflicted but resulting from an insured's negligence (and thus constructively foreseeable to him) may be 'caused by accident' and within the coverage afforded by
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