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Emerson Electric Co. v. Aetna Casualty and Surety Co.8/30/2004
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(a) although the court based its rulings on certain inferences drawn from undisputed facts, other inferences-which support a finding of coverage-could have reasonably been drawn from those same facts;
(b) the court improperly made credibility assessments and weighed the evidence;
(c) the court confused the issue of whether there was an "occurrence," as defined in the 1983-84 policy, which is to be judged by the insured's expectations at the time the injury -causing acts took place, with the separate legal issue of whether the loss was insurable or whether it was a known certainty at the inception of the policy; and
(d) with respect to whether there was a covered "occurrence," the court misapplied Missouri law, which holds that where, as here, the policy states that it will cover liability arising from property damage that is neither expected nor intended from the standpoint of the insured, a subjective test necessarily governs the "occurrence" analysis.
II. In granting summary judgment with respect to the owned sites:
(a) the trial court's decision is erroneous as a matter of law because the trial court ignored this court's prior ruling in Emerson I that, for the purposes of the pollution exclusion, a "release" is the escape of pollutants from, not the intentional deposit of wastes into, places of expected containment;
(b) even if the trial court were not bound by this court's decision in Emerson I, its decisions were inconsistent with the plain meaning of the insurance policy and Missouri law, which also provide that a "release" under the pollution exclusion is a discharge from a place of expected containment;
(c) the trial court's rulings, based on the amended "accidental" exception to the pollution exclusion in the 1983-84 policy, that releases at the owned sites could not be "accidental" because they were gradual, contravened both this court's decision in Emerson I and the established Missouri law;
(d) there were genuine questions of material fact about the cause of the property damage at the Hatfield, Pennsylvania, and Louisiana sites, which made the grants of summary judgment improper;
(e) the meaning of "sudden," as used in the standard-form "sudden and accidental" exception to the pollution exclusion in the 1984-85 policy, was an unresolved question under Missouri law. In the absence of clear Missouri law, the trial court was required, but failed, to apply Illinois law, which (according to plaintiffs) holds that the terms "sudden and accidental" mean "unexpected and unintended"; and
(f) even if the trial court correctly held that "sudden" means "abrupt" under Missouri law, the court improperly discounted evidence of abrupt and unintended releases of pollutants at the Alabama and Louisiana owned sites, and whether such releases may have contributed to the contamination.
Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/ 2-1005(c) (West 2002). Orders granting summary judgment are reviewed de novo. Rumford v. Countrywide Funding Corp., 287 Ill. App. 3d 330, 334, 678 N.E.2d 369, 372 (1997). On appeal from such an order, the reviewing court "must independently examine the evidence presented in support of and in opposition to a motion for summary judgment." Groce v. South Chicago Community Hospital, 282 Ill. App. 3d 1004, 1006, 669 N.E.2d 596, 598 (1996). Where a reasonable person could draw divergent inferences from undisputed facts, summ
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