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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
lends no support to Republic's contention that under the "occurrence" analysis, the applicable standard is whether or not plaintiffs expected or intended the property damage before the inception of the policy, rather than at the time the wastes were removed from plaintiffs' facilities and disposed of. Accordingly, we find that the reasoning of Pacchetti and Moll applies with equal force to latent injuries, such as the ones involved in the instant case, and thus agree with plaintiff that the focus must be on whether, at the time the injury-causing acts took place, plaintiffs intended or expected an injury to result.
Plaintiffs next contend that under Missouri law, when a policy's "occurrence" clause requires an evaluation from the standpoint of the policyholder, the standard for judging whether there was an "occurrence" is the subjective knowledge and intent of the policyholder. In support, plaintiffs rely on Moll, 50 S.W.3d at 332, which held that a subjective standard applies where a policy's "occurrence" definition requires, as is the case here, that the damage be unexpected and unintended "from the standpoint of the insured." Plaintiffs thus argue that the trial court misapplied the terms of the 1983-84 policy by utilizing both a subjective and an objective standard to determine plaintiffs' expectations and intentions concerning the third-party sites, and that the trial court's application of an objective standard deprived plaintiffs of the protection of the policy.
Republic, on the other hand, argues that under Missouri law, courts can infer an insured's subjective knowledge and intent from the nature and circumstances of the insured's act. In support, Republic relies on Truck Insurance Exchange v. Pickering, 642 S.W.2d 113, 116 (Mo. App. 1982), which construed an "occurrence" definition almost identical to one at issue. In deciding what is a proper analysis of the terms "from the standpoint of the insured," the court noted that under Missouri law, an act of an insured need not be expressly intentional, but can be inferred as a matter of law from facts and circumstances surrounding the act. Pickering, 642 S.W.2d at 116. We agree.
We note that Moll and Pickering are not inconsistent. The court in Moll reasoned that a subjective standard must be used in determining whether the injuries were expected or intended because the policy language was clear and unambiguous in requiring a fact finder to look at whether the injury was expected and intended "from the standpoint of the insured." However, the court went on to explain:
"In the context of exclusion clauses such as this one, where an insured claims there was a benign intent behind a harmful act, Missouri courts have employed two different tests to assess the intent of the insured. American Family Mutual Ins. v. Franz, 980 S.W.2d 56, 58 (Mo. App. W.D. 1998). Under the 'subjective' test, the coverage is excluded based upon the insured's own actual subjective intent to cause harm. Id. Conversely, under the 'objective' test, coverage is excluded if it is determined that a hypothetical reasonable person would have foreseen harm from his or her acts. Id.
* Whether a subjective or objective approach was used, however, makes little practical difference. Franz, 980 S.W.2d at 58. Even when the subjective approach is used, an insured's subjective intent to cause injury can still be inferred from the nature and circumstances of the insured's intentional acts, especially when an intentional act results in injuries which are the natural and probable consequence of such an act. Id. This is because courts are reluctant to accept the insured's own testimony as conclusive on the question of intent[.] Id. Thus, 'an admissi
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