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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
ississippi, and New York, under the customized "accidental" exception to the pollution exclusion contained in the 1983-84 policy and in support of their cross-motion for partial summary judgment on the New York site, plaintiffs argued that property damage at the Alabama, Louisiana, Mississippi and New York owned sites was caused by unintended and unexpected releases of pollutants from permitted containment structures at the sites, and that under this court's decision in Emerson I, as well as under Missouri law, the releases were "accidental."
Lastly, in opposition to Republic's motions for summary judgment on the basis that the standard-form exception to the pollution exclusion contained in the 1984-85 policy did not apply, plaintiffs argued that the meaning of the term "sudden," as used in the "sudden and accidental" exception to that exclusion, was an open question under Missouri law, as expressed in the Missouri Court of Appeals' decision in Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609, 622 (Mo. App. 2001) (hereinafter, TWA):
"No Missouri case has addressed the issue of whether 'sudden and accidental' in pollution exclusion clauses of insurance policies is ambiguous."
Alternatively, even if the term "sudden" were held to mean "abrupt," plaintiffs argued that summary judgment was inappropriate because they had presented evidence of abrupt, unexpected, and unintended releases of pollution with respect to the Alabama and Louisiana sites.
On August 29, 2002, the trial court denied plaintiffs' motion for the Hatfield, Pennsylvania, site and cross-motion for the New York site, and granted Republic's motions and cross-motion concerning all five owned sites. Notably, the court relied on TWA, which was decided subsequently to Emerson I and which, according to the trial court, focused on whether the initial discharges of pollutants were intentional, in contrast to the focus in Emerson I on whether the resulting damage was intentional. The court held that none of the releases of pollution at any of the owned sites were either "sudden and accidental" or "accidental" because the discharges that led to the pollution were not unintended, unexpected, unforseen or abrupt, since such discharges were deliberately carried out as part of plaintiffs' ordinary course of business or routine operations. The court further discounted abrupt releases of chemicals at the Alabama and Louisiana sites as having contributed to the contamination at those sites.
The above grants of summary judgment in favor of Republic are summarized as follows:
OWNED SITES
"Sudden and Accidental" Exception to Pollution Exclusion under the 1984-85 Policy (trial court found that releases of pollution were not "sudden and accidental")
"Accidental" Exception to Pollution Exclusion under the 1983-84 Policy (trial court found that releases of pollution were not "accidental")
Vernon, Alabama Shreveport, Louisiana Philadelphia, Mississippi Melville, New York
Vernon, Alabama Shreveport, Louisiana Philadelphia, Mississippi Melville, New York Hatfield, Pennsylvania
THIRD-PARTY SITES
"Occurrence" under the 1983-84 Policy (trial court found no covered "occurrence" because the damage was "expected and intended")
Erie, Pennsylvania Dixiana, South Carolina
Plaintiffs now appeal.
ANALYSIS
On appeal, plaintiffs contend that the trial court made the following errors of law and/or fact that are reversible under Missouri law:
I. In granting summary judgment with respect to the third-party waste disposal sites:
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