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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
rrence" or, more precisely, the "exposure to conditions" was "neither expected nor intended from the standpoint of the Insured."
In accordance with the above-stated requirements of the policy, plaintiffs supported their motions for summary judgment with respect to the Erie, Pennsylvania, and Dixiana, South Carolina, waste disposal sites with evidence, undisputed and conceded by Republic, that there was an "exposure to conditions resulting in property damage" at both sites during the 1983-84 policy period. In addition, as noted above, plaintiffs also presented evidence that the "exposure to conditions" was "neither expected nor intended from the standpoint of the Insured."
Two issues arise at this juncture: (1) whether plaintiffs must show that the property damage was unexpected and unintended at the time the haulers removed the wastes from plaintiffs' facilities and disposed of those wastes at the two sites, or whether they must show that the property damage was (still) unexpected and unintended at a later date, prior to the inception of the 1983-84 policy; and (2) whether a subjective or objective standard should govern the trial court's determination of plaintiff's knowledge of the property damage.
Plaintiffs contend that under Missouri law, the focus of the "expected or intended" analysis is the subjective expectation and intention of the policyholder at the time the acts giving rise to liability took place. In support, plaintiffs rely on American Family Mutual Insurance Co. v. Pacchetti, 808 S.W.2d 369, 371 (Mo. 1991) (en banc), and Cameron Mutual Insurance Co. v. Moll, 50 S.W.3d 329, 332 (Mo. App. 2001). Plaintiffs thus argue that summary judgment was inappropriate in light of the evidence that plaintiffs did not expect or intend that property damage would take place at the time the wastes were removed by the haulers.
Both Pacchetti and Moll dealt with clauses similar to the one involved here. In Pacchetti, the Supreme Court of Missouri held that whether the insured expected or intended injury is a question of fact, and " t must be shown not only that the insured intended the acts causing the injury, but that injury was intended or expected from these acts." Pacchetti, 808 S.W.2d at 371. Similarly, the court in Moll interpreted Pacchetti to stand for the proposition that the fact that an insured's conduct was intentional does not, by itself, preclude coverage; rather, at that point, the focus is on whether the insured expected or intended, presumably at the time of the act, to cause injury. Moll, 50 S.W.3d at 332.
Although neither Pacchetti nor Moll involved injuries that resulted long after the insured's intentional act, nothing in those cases purports to limit their holdings to injuries that immediately or shortly follow the act. Moreover, Republic cites no authority in support of its contention that coverage should be barred in cases where, at the time of the act, an insured did not expect or intend latent harm. Rather, Republic merely relies on certain fundamental principles of insurance law, as articulated in American States Insurance Co. v. Mathis, 974 S.W.2d 647, 649 (Mo. App. 1998), i.e., that the intent of a commercial general liability policy, such as the policy at issue, is to protect against unpredictable liability that can result from accidental injuries to persons or property. This argument more appropriately invokes the "known loss" doctrine, involving the insurability of losses that have occurred by the time the policy's coverage took effect, and losses which were "substantially certain to occur" or which were a "substantial probability" (see Couch on Insurance 3d ยง102:8 (1997)), separately discussed in detail later on. However, Mathis
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