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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
88, after an internal environmental audit, Emerson retained Radian to investigate the surface impoundment constructed in 1974 by Emerson's U.S. Electrical Motors Division at its Philadelphia, Mississippi, facility. Processed rinsewater from various plant operations was piped to that surface impoundment, where the water would either evaporate or be discharged into the sewer system for the City of Philadelphia. Plaintiffs claim that the impoundment was constructed with a specially lined clay surface. However, the report prepared by Radian states that the impoundment is unlined. Rather, the impoundment sits on top of approximately nine feet of natural clay. Radian's investigation determined that there was soil and groundwater contamination, which was caused by the seepage of wastes through the natural clay bottom of the impoundment.
4. The New York Owned Site
Emerson's McPhilben Lighting Company (McPhilben) manufactured industrial lighting fixtures at its Melville, New York, facility from 1963 until 1989, when McPhilben was sold. In preparation for its sale of McPhilben and in compliance with New York law, Emerson hired Radian to perform an environmental audit of the site. Radian discovered that contaminants had escaped into the surrounding soils and groundwater from two underground holding tanks and six dry wells, also called leaching pools, which were intended to hold wastes from plant operations while allowing treated water to escape. Additionally, Radian discovered an area of the facility where xylene, a volatile organic compound, negatively impacted the soil. That contamination arose from a hole that was cut in the bottom of a trench near wastewater tanks. The hole was apparently cut intentionally in order to clean out the pipe running underneath the trench.
5. The Pennsylvania Owned Site
From 1964 to 1969, Emerson's Brooks Instruments Division (Brooks) manufactured precision instruments and calibration equipment at a facility located on Church Road near Hatfield, Pennsylvania. In 1987, the EPA named Brooks a potentially responsible party with respect to the site, which had a contaminated aquifer running beneath it. Brooks' use of TCE at its facility allegedly contributed to the contamination of the aquifer. Brooks' long-time employees had no recollection of any spills or releases of TCE taking place at the Church Road facility. There was evidence that plant wastes were discharged through a pipe into an underground storage tank, and liquids from that tank were periodically pumped into the sewer system.
Trial Court's Judgments with Respect to the Owned Sites
When plaintiffs moved for summary judgment with respect to the Hatfield, Pennsylvania, site, they argued that based on this court's decision in Emerson I, plaintiffs had proven an "occurrence" at that site and, in light of the fact that there was no evidence supporting Republic's defenses, Republic was required to provide coverage to Emerson for that site under the 1983-84 policy. Republic cross-moved for summary judgment arguing, in part, that coverage was precluded for the site under the pollution exclusion and the releases of pollutants did not fall within the customized "accidental" exception to the pollution exclusion, i.e., the property damage was not accidental. Emerson responded to Republic's cross-motion contending, in part, that the customized exclusion did not even apply because Republic failed to meet its burden of demonstrating that the property damage at the site was caused by specific nonaccidental releases of pollutants.
With respect to opposing Republic's motions for summary judgment on the issue of coverage for owned sites located in Alabama, Louisiana, M
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