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Doerr v. Mobil Oil Corp.12/19/2000
in turn secure professional liability insurance to insure against losses that may be caused because a client fails to buy appropriate coverages when proper advices on insuring the client's needs and coverages available are not given. In the area of insurance provided for municipalities and governmental entities, bids and bid specifications for the insurance desired are generally issued based on the advice of the governmental entities' internal or external insurance consultants. In a business climate especially, insurance carriers are entitled to rely on the businesses with whom they deal to assess their needs and purchase accordingly. In this case, we know that the Parish of St. Bernard had a $250,000 self-insured retention. Moreover, the public telephone directory discloses that it has an "insurance/risk management" office. It can hardly be characterized as an unsophisticated insured.
In sum, the policy language excluding coverage for pollution risks in this case is clear and unambiguous as applied to the facts pleaded by the plaintiffs in this case. A large body of case law exists in other jurisdictions holding that the total pollution exclusion is not ambiguous. We are dealing with an instance of industrial pollution allegedly caused by a Parish which may have been negligent and certainly can be expected to have understood the risk of introducing pollutants into the water system and the potential need for pollution coverage. The fact that its conduct may ultimately be determined to have been negligent rather than intentional is not relevant. Intentional acts are always excluded under general coverage principles. If the Parish was not at fault, it should escape liability altogether on the merits or at least by way of a third-party claim for indemnity. Its relative culpability on the merits, however, has nothing to do with the coverages it did or did not purchase pursuant to the contract of insurance at issue here.
The legislature of this state has recently expressed its will that summary judgment proceedings are designed to secure the just, speedy, and inexpensive determination of actions, that such proceedings are favored, and that they should be construed to accomplish these ends. La. Code Civ. P. art. 966 (amended 1997). The result reached by the majority today effectively rejects that standard and virtually eliminates the prospect of ever resolving coverage cases such as the case at bar by summary judgment. I cannot agree with this result.
Accordingly, I respectfully dissent.
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