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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
events. Thus, there are genuine issues of material fact, which may well necessitate additional expert discovery.
Plaintiffs next contend that summary judgment in favor of Republic with respect to the Hatfield, Pennsylvania site (under the 1983-84 policy) was inappropriate because Republic failed to meet is burden of proffering some evidence of a "release," within the meaning of the pollution exclusion, of contaminants at that site. As a general rule in Missouri, an insured bears the burden of proving all the elements that establish coverage under the terms of a policy, whereas the insurer has the burden of proving that the loss sustained was within a policy exclusion. Grossman Iron & Steel Co. v. Bituminous Casualty Corp., 558 S.W.2d 255, 259-60 (Mo. App. 1977). Plaintiffs thus claim that once they satisfied their burden of showing an "occurrence," the burden then shifts to Republic to show that the pollution was caused by a "discharge" or "release" of pollutants, within the meaning of the pollution exclusion, and that Republic has not met that burden. We disagree.
Under Missouri law, plaintiffs have the burden of establishing a prima facie case that there has been property damage caused by or arising out of an "occurrence" and, moreover, establishing a prima facie case that they are entitled to coverage because the "accidental" or "sudden and accidental" exception to the pollution exclusion applies. See TWA, 58 S.W.3d at 621-22. Plaintiffs have already shown, as we held in Emerson I, that there was an "exposure to conditions" resulting in property damage at the site. As we stated in Emerson I with respect to plaintiffs' burden of showing an "occurrence," it is sufficient to show an "exposure to conditions" without having to identify a specific event or release which caused the exposure. Emerson I, 319 Ill. App. 3d at 254, 743 N.E.2d at 655. By the same token, since plaintiffs were relieved of the burden of identifying a specific event or release which caused the exposure to conditions, within the meaning of the term "occurrence," Republic is similarly relieved of the burden of identifying a specific "discharge" or "release" within the meaning of the pollution exclusion. Accordingly, what is truly at issue here is whether plaintiffs can show that the pollution was "accidental." Republic argues that they cannot make that showing. We disagree.
Although plaintiffs, in support of their argument that Republic cannot show a "discharge" or "release," stressed the fact that plaintiffs' employees denied that any chemical spill ever took place, it does not necessarily follow that, as Republic contends, plaintiffs failed to establish that the pollution was "accidental." The record shows that plaintiffs used TCE in their daily operations and that they discharged wastes into an underground storage tank and then into an adjacent sewer system. While it is unclear how the pollution resulted, the fact that no identifiable chemical spill ever took place does not foreclose the possibility that the resulting and, most likely, gradual pollution was, nevertheless, accidental. See White, 440 S.W.2d at 499, 510. We, therefore, agree with plaintiffs that questions of fact thus remain with respect to the Hatfield, Pennsylvania, site.
We next address plaintiffs' arguments with respect to the third-party sites. Plaintiffs contend that the trial court erroneously concluded that Urick and Therm-O-Disc knew that property damage had taken place at the Erie, Pennsylvania, and Dixiana, South Carolina, waste disposal sites and, therefore, the court erred in finding that the property damage at those sites was "expected or intended," and that plaintiffs thus failed to prove an "occurrence." Plaintiffs sp
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