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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
a liability insurance policy." White, 440 S.W.2d at 508.
Republic argues that the focus in White, on whether the resulting property damage was accidental, was dictated by the language of the policy involved. Republic points out that the language of the pollution exclusion in the instant case provides:
" olicy does not apply to liability for * property damage arising out of the discharge, dispersal, release, escape or seepage of * pollutants into or upon land * unless such discharge, dispersal, release or escape is * accidental."
Republic contends that the very language of the policy here, in contrast with that in White, "provides coverage only if the discharge is accidental." The weakness in Republic's argument is highlighted by the very language upon which it relies. The language of the pollution exclusion refers to the discharge, escape, or seepage of pollutants into or upon land and denies coverage unless such discharge is accidental. Indeed, as Chief Judge Posner wrote in Patz v. St. Paul Fire & Marine Insurance Co., 15 F.3d 699, 703 (7th Cir. 1994), an "intermediate" interpretation of this clause
"distinguish between deliberately discharging waste materials into land, air, or water, whether or not 'harm' is intended, and placing those materials in a container that is buried in land or water and subsequently leaks or breaks, discharging waste materials into the land or water surrounding the container."
Similarly, the introduction of wastewater into an evaporation pit, although unlined,
"is different from just dumping wastes onto land or into a body of water. The discharge of wastes into the environment d not occur until the water leache through the bottom of the pit *.
This reading of the pollution-exclusion clause, which distinguishes between an intentional act not intended to discharge wastes into the environment and an intentional such discharge, is not inevitable, but it is plausible, and it is consistent with a number * of the cases *." Patz, 15 F.3d at 704.
Therefore, the analysis and holding in White, although not dealing with a pollution exclusion specifically, is congruent with the specific policy language used in articulating the pollution exclusion and its exceptions. This is borne out by the fact that White's interpretation was mirrored by the pollution exclusion case of General Dynamics (applying Missouri law) and is fully reflected in the holding of the Missouri Court of Appeals itself in Superior Equipment.
Republic, nevertheless, argues that TWA represents a change in Missouri law and a departure from this analysis. We disagree. Although TWA was decided subsequent to our decision in Emerson I, it was not decided by Missouri's supreme court and, as such, would in any event be counterbalanced by the decisions of Missouri's intermediate courts of appeals in Superior Equipment and White. More overridingly, it is unclear, at the very least, what proposition the pertinent holding of TWA stands for. In TWA, the insured (TWA) sought coverage for costs incurred in connection with environmental contamination at its facility. At the facility, which was used as a maintenance and repair center for its aircraft, TWA had discharged hazardous waste for nearly 40 years through the operation of a wastewater treatment plant and associated basins for holding wastewater and waste oil, sludge drying beds, and a ravine field. TWA, 58 S.W.3d at 614. (During the 1970s, the sludge drying beds were excavated and the debris was first moved to the western edge of the facility, and later "again transferred and mainly dumped at a location at the east end of a Kansas City International airport r
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