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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
on of specific intent is not the only way to show intent to cause harm; it can be inferred from facts and circumstances surrounding an act.' Truck Insurance Exchange v. Pickering, 642 S.W.2d 113, 116 (Mo. App. W.D. 1982), citing, Camp v. John Hancock Mut. Life Ins. Co., 165 S.W.2d 277, 281 (Mo. App. 1942)." (Emphasis added.) Moll, 50 S.W.3d at 332-33.
In sum, the inquiry under the "occurrence" analysis should be whether, at the time the wastes were removed for disposal from plaintiffs' facilities, plaintiffs expected or intended the pollution to result; such expectation or intent may be inferred from the nature and circumstances of plaintiffs' intentional acts.
For the reasons that follow, the trial court erred in ruling that no "occurrence" can be proven under these facts. As previously noted, plaintiffs satisfied the first component of showing an "occurrence" by producing evidence of "continuous or repeated exposure to conditions" with respect to wastes deposited at the third-party sites. Next, as noted above, plaintiffs were required to show that the "exposure to conditions" was "neither expected nor intended from the standpoint of the Insured."
With respect to the Erie, Pennsylvania, site, we have already found in Emerson I, albeit in the context of our discussion as to whether the damage at the site was "accidental" within the meaning of the pollution exclusion, that plaintiffs presented evidence demonstrating that they expected and intended for their wastes to be disposed of properly and neither expected nor intended any resulting harm to the environment and, correspondingly, plaintiffs at a minimum raised a triable issue as to whether the releases of pollutants at the Erie site were accidental. Emerson I, 319 Ill. App. 3d at 246, 743 N.E.2d at 650-51. While we acknowledge the apparent difference in terminology between "neither expected nor intended from the standpoint of the Insured," as used in the definition of "occurrence," and the term "accidental," within the meaning of the pollution exclusion, the two terms essentially mean the same thing. In Emerson I, we held that property damage was "accidental" under Missouri law, where the policyholder " 'neither expected nor intended the illegal and improper activity of the hazardous waste transporter that resulted in hazardous waste contamination.' " (Emphasis added.) Emerson I, 319 Ill. App. 3d at 245, 743 N.E.2d at 649, quoting General Dynamics, 783 F. Supp. at 1207-08. In other words, under Missouri law, the term "accidental," within the meaning of the pollution exclusion, means unexpected and unintended from the standpoint of the insured. Emerson I, 319 Ill. App. 3d at 245, 743 N.E.2d at 649. Accordingly, the same conclusion, that plaintiffs at a minimum raised a triable issue as to whether the releases of pollutants at the Erie site were accidental, must be reached under the "occurrence" analysis.
By the same token, the same conclusion must be reached with respect to the Dixiana, South Carolina, site, where plaintiffs offered evidence that Therm-O-Disc expected that the hauler would dispose of the wastes properly and did not expect that the wastes would, or intend them to, be discharged from a disposal facility or damage the environment.
Plaintiffs, given the underlying context of cross-motions for summary judgment, further contend that the trial court erred in failing to conclude that they demonstrated an "occurrence" at both waste disposal sites because Republic conceded the fact that the damage at the waste disposal sites was unexpected and unintended at the time the wastes were removed from plaintiffs' facilities. Our review of the record, however, does not support plaintiffs' claim of such con
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