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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
te storage pad, there is also evidence that plaintiffs deposited their wastes into licensed containment structures and/or treatment facilities. Thus, a trier of fact could reasonably find or infer that plaintiffs expected their wastes to stay within the confines of those structures. Accordingly, there exists a genuine question of material fact as to how much of the pollution at the Alabama site was "accidental."
With respect to the Louisiana, Mississippi, and New York owned sites, plaintiffs similarly claim that they did not know and had no reason to believe that pollutants were migrating from their licensed waste containment structures into the soil and groundwater, as there were no visible or otherwise perceivable clues to put plaintiffs on notice that releases of pollutants were taking place. Plaintiffs further claim that they did not learn of the releases of pollutants and property damage at the above-mentioned sites until after the termination of the policies at issue, when environmental consultants were hired to investigate the sites either as part of the sales of the facilities (Louisiana and New York) or corporate compliance audits (Mississippi) and informed plaintiffs of the property damage.
We agree with plaintiffs that this evidence is sufficient to raise a genuine question of material fact as to whether the pollution was "accidental." Therefore, as to coverage under the 1983-84 policy, which excepted "accidental" releases from the pollution exclusion, we conclude that the trial court erred in granting summary judgment in favor of Republic on the grounds that the pollution was not "accidental" with respect to the Alabama, Louisiana, Mississippi, and New York owned sites.
However, our adherence to the law of the case is dispositive on the issue of coverage with respect to the Mississippi and New York owned sites under the "sudden and accidental" exception to the pollution exclusion in the 1984-85 policy. While there remain questions of fact as to whether the pollution was "accidental" within the meaning of both policies involved, these issues of fact do not impact our disposition of the instant case with respect to whether the pollution at the Mississippi and New York sites was "sudden" under the 1984-85 policy. As we held in Emerson I, it is not sufficient, under the "sudden and accidental" language in the 1984-85 policy, that the pollution be unexpected, it must also be abrupt. Emerson I, 319 Ill. App. 3d at 243, 743 N.E.2d at 647. Because there is no evidence of abrupt discharges at the Mississippi and New York sites, we affirm the trial court's grant of summary judgment with respect to those sites under the 1984-85 policy.
In contrast, the grants of summary judgment with respect to the Alabama and Louisiana sites under the 1984-85 policy were inappropriate because there exist questions of fact as to how much the abrupt and unexpected discharges at those sites contributed to the overall contamination. As previously noted, with respect to the Alabama site, plaintiffs presented evidence of two abrupt, unexpected and unintended spills of TCE which might have contributed to the contamination at the site, and that evidence renders summary judgment premature. As we stated in Emerson I, such evidence of a sudden and accidental spill raises a triable issue as to whether that spill, which satisfies the exception to the pollution exclusion, caused some of the damage for which plaintiffs are liable. Emerson I, 319 Ill. App. 3d at 248-49, 743 N.E.2d at 651. Similarly, with respect to the Louisiana site, plaintiffs introduced evidence that spontaneous explosions of magnesium took place in 1973 and 1974, and that some contamination may have been caused by those accidental
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