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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
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.
POLLUTION EXCLUSION
It is agreed that this 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.)
With respect to the foregoing pollution exclusion, Emerson had requested and paid consideration for deletion of the words "sudden and" from the standard-form "sudden and accidental" exception to that exclusion, resulting in the language stated above in italics, which only utilizes the term "accidental." The 1984-85 policy contains the same relevant language as the 1983-84 policy, with the only difference being that its exception to the pollution exclusion contains the standard-form language "sudden and accidental."
In Emerson I, we held, in pertinent part, that: (1) Missouri law must be applied to determine defendants' coverage obligations regardless of the location of the site; (2) under Missouri law, the standard-form "sudden and accidental" language of the exception to the pollution exclusion means both abrupt and unexpected and precludes coverage for property damage caused by gradual, nonabrupt releases of pollutants; (3) under Missouri law, the amended "accidental" language of the exception to the pollution exclusion means unexpected and does not preclude coverage for property damage caused by gradual, nonabrupt releases of pollutants; (4) under Missouri law, in determining whether the pollution was accidental, the focus is on the resulting damage, as opposed to the initial discharge or shipment of pollutants, and whether the resulting damage was intentional; and (5) under Missouri law, plaintiffs' showing of an "exposure to conditions" resulting in continuing damage to property during the policy period satisfies the initial burden of proving an "occurrence," as defined in the policies at issue; plaintiffs need not identify a specific event or release which caused the exposure to conditions. Emerson I, 319 Ill. App. 3d at 241, 243, 244-46, 253-54, 743 N.E.2d at 646, 647, 648-50, 655. As noted, the matter was remanded for further proceedings.
On remand, the trial court granted summary judgments in favor of Republic concerning the two third-party waste disposal sites based on the lack of "occurrence" as it is defined in the 1983-84 policy, discussed more fully below. The court also granted summary judgments in favor of Republic concerning the owned sites based on the 1984-85 policy's standard-form "sudden and accidental" exception to the pollution exclusion and the 1983-84 policy's customized "accidental" exception to the pollution exclusion, as detailed, respectively, below. Notably, in granting summary judgments with respect to the owned sites, the trial court, in contrast to its focus in determining coverage as to the third-party sites, did not look to the definition of "occurrence" but, rather, looked to the language of the pollution exclusion as precluding coverage because it found the pollution at the owned sites not "accidental," irrespective of whether or not the discharges were "sudden."
The Third-Party Sites' "No Occurrence" Judgments
Plaintiffs m
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