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Textron6/22/2000
alty Co. v. Rapid-American Corp., 609 N.E.2d 506, 508 (N.Y. 1993), New York's highest court found that the insurer of a company that used asbestos was liable to defend against suits arising out of asbestos exposure even though the policy precluded coverage for any discharges into the atmosphere. The court held that even though some contamination may have occurred from ingestion through discharges into the air, some of it may also have occurred through direct contact with hands or clothing. See id. at 513. Hence, " here contamination could occur in a variety of ways, only one of which is potentially excluded, [the insurer] cannot meet the heavy burden of showing that the exclusion applies * * *." Id.
Moreover, when, as here, an insured has offered "specific evidence creating a genuine issue as to whether the incidents at the sites were sudden and accidental and caused more than a de minimis release of pollutants into the environment," summary judgment is inappropriate. Millipore Corp. v. Travelers Indemnity Co., 115 F.3d 21, 34 (1st Cir. 1997). (Emphasis added.) Similarly, the Massachusetts Supreme Judicial Court has held that a grant of summary judgment in favor of an insurance company on the basis of the pollution-exclusion clause was error when, notwithstanding the fact that "most of the releases resulted from * * * routine business practices, * * * some of the releases were indeed 'sudden and accidental.'" Nashua Corp. v. First State Insurance Co., 648 N.E.2d 1272, 1276 (Mass. 1995).
The reasoning in the above-cited cases persuades us that summary judgment was inappropriate here. Textron offered evidence of discharges other than those from the containment pond that could have been responsible for at least some of the environmental damage at issue. For example, the intermittent releases of steam from the rocket-cell testing waters and the accidental leaks of chemicals from the rocket-cell testing area and from the blade-bonding facility could have caused at least some of the damage in question. This evidence requires fact-finding on the part of the jury to apportion the damages between covered and non-covered damages or to determine that no such apportionment is possible.
Conclusion
In sum, then, we hold that the Superior Court erred in granting summary judgment because genuine issues of material fact exist that require resolution by the fact-finder. For these reasons we sustain Textron's appeal, vacate the Superior Court's judgment, and remand this case for further proceedings consistent with this opinion.
SOURCE OF APPEAL: Superior Providence
JUDGE FROM OTHER COURT: Gagnon, J.
JUSTICES: Weisberger, C.J., Lederberg, Bourcier, Flanders, Goldberg, JJ., Concurring
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