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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
ecifically argue that the court used the wrong temporal standard as to plaintiffs' knowledge of the property damage when it focused on plaintiffs' knowledge prior to the inception of the 1983-84 policy rather than at the time the injury-causing acts took place.
The parties are in disagreement as to the temporal focus and whether a subjective or objective standard should used in deciding whether there is a covered "occurrence." This disagreement is apparently compounded by the uncertainty as to which terms of the policy control the disposition of this issue-whether it is the language "neither expected nor intended from the standpoint of the Insured," as used in the policy's definition of "occurrence," or whether it is the term "accidental" in the pollution exclusion. As previously stated, "occurrence" is defined as follows:
"The term 'occurrence' shall mean (a) an accident, or (b) an event, or continuous or repeated exposure to conditions, which results during the policy period, in personal injury , property damage, or advertising liability * neither expected nor intended from the standpoint of the Insured." (Emphasis added.)
On the other hand, as previously noted, the pollution exclusion states, in relevant part, as follows:
" 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." (Emphasis added.)
We emphasize that the instant question focuses on a different facet of the "occurrence" definition than the one we addressed in Emerson I, where we dealt with a certified question as to whether it is sufficient to show an "exposure to conditions," as that term is used in the definition of "occurrence," without having to identify the specific event or release which caused the exposure and the resulting property damage. Emerson I, 319 Ill. App. 3d at 252, 743 N.E.2d at 654. Because of the absence of clear guidance on that issue from either Missouri state courts or federal courts construing Missouri law, we presumed that Missouri law as to that issue was the same as the law of the forum, Illinois . Emerson I, 319 Ill. App. 3d at 253, 743 N.E.2d at 655. Under Illinois law, it is sufficient to show an "exposure to conditions," without also having to identify the specific event or release which caused the exposure. In that context, we stated:
"The record evidence of TCE contamination at the * site supports the conclusion that there was a continuous 'exposure to conditions' resulting in property damage during Republic's policy period. Under Illinois law Emerson has met its burden of proving an 'occurrence' as defined in Republic's 1983-84 policy." Emerson I, 319 Ill. App. 3d at 254, 743 N.E.2d at 655-56.
However, it is clear that in discussing this aspect of "occurrence" in the context of the parties' contentions, in no way did we purport to eliminate the plain-language requirement under the definition of "occurrence" that such exposure must be "neither expected nor intended from the standpoint of the Insured."
To summarize, under Emerson I, if the evidence shows that the property damage occurred, in part, during the relevant policy period, the fact that no specific causative event has been identified does not preclude plaintiffs from recovering costs associated with remediating the site(s). Clearly, the policy next requires plaintiffs to show that the "occu
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Illinois Personal Injury Attorneys
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