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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
unway." TWA, 58 S.W.3d at 614.) Notably, the claims against TWA arose from a proceeding brought against it by the EPA for knowing violations of the Resource Conservation and Recovery Act of 1976 (the RCRA) (42 U.S.C. ยง6928 (2000)). TWA, 58 S.W.3d at 615. In holding that the disposal of the wastes that resulted in the pollution was not accidental, the court in TWA stated:
"TWA was aware of the implications of RCRA to its operations at [the site]. Such deliberate and frequent disposal of waste that resulted in pollution is not accidental." (Emphasis added.) TWA, 58 S.W.3d at 623.
While TWA does appear to focus on the initial discharge of wastes, it is unclear whether the court did so because it decided that the relevant discharge was the initial placement of wastes, as opposed to subsequent migration, or whether it was because the court decided that the relevant discharge was the wrongful discharge, in knowing violation of the RCRA, and that such discharge would not be covered. Significantly, the court in TWA did not attempt to explain its focus on the initial placement, which is inconsistent with that of the other cases decided under Missouri law, namely, Superior Equipment, General Dynamics, as well as White, by distinguishing or explaining its departure from these cases. Republic argues that some of the so-called violations in TWA occurred before the effective date of the RCRA and, hence, the holding in that case was not premised on the RCRA violations. However, these contentions completely ignore the express language of the court articulating the underlying rationale for its holding:
"The discharges were part of TWA's operation at the * site. TWA discharged its waste products used in the overhaul of its aircraft at the * site. After RCRA was enacted in 1976, TWA was expected to terminate its hazardous waste operations or apply for a permit under RCRA when it became effective in 1980. TWA notified the EPA of its operations, but ignored the effects of the statute. TWA was aware of the implications of RCRA to its operations at [the site]. Such deliberate and frequent disposal of waste that resulted in pollution is not accidental." TWA, 58 S.W.3d at 623.
In sum, TWA is neither explicit, nor is it fully analytical. Given, on the one hand, the decisions under Missouri law in Superior Equipment, General Dynamics and White and, on the other hand, one possibly divergent holding relied upon by Republic that is neither clear nor explicit, Republic's claim that TWA represents a change in the controlling law in Missouri is merely speculative and would not warrant a repudiation of Emerson I. Thus, the law of the case as set forth in Emerson I controls this appeal with respect to both types of sites involved and, therefore, summary judgment in favor of Republic predicated upon the trial court's reliance on and interpretation of TWA cannot be sustained.
Nor is Republic entitled to summary judgment based on its contention that the resulting damage was not "accidental" within the meaning of either policy. As previously stated, in Emerson I, we held that the term "accidental" means unexpected and unintended, and does not preclude coverage for property damage caused by gradual, nonabrupt releases of pollutants. Emerson I, 319 Ill. App. 3d at 244-45, 743 N.E.2d at 648-49. Although, at least with respect to the Alabama site, there is evidence, which plaintiffs dispute, that plaintiffs may have known of leaks or other malfunctions in their containment structures and/or treatment facilities, and there is evidence that some employees at the Alabama site had, on an unspecified number of occasions, poured small amounts of TCA directly onto the ground in the vicinity of the concre
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