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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
dard was not in effect when the bike trail was designed and did not apply retroactively. (Id. at pp. 63-64.) Thus, neither ground encompassed the issue of lack of causation. Yet the County's motion for summary judgment alleged as undisputed facts that the plaintiff was traveling at a speed less than 13 miles per hour at the time of the accident, and that the curve was safely designed for said speed. (Id. at p. 62.) The plaintiff did not dispute these facts. The trial court informed the parties of its tentative ruling to grant summary judgment on the ground that the County had negated causation. Oral argument was requested and a hearing was held, at which the plaintiff did not indicate he could produce further evidence and did not seek a continuance to do so. (Id. at pp. 72-73.) We affirmed.
Here, we have seen the insurers' motion adequately raised lack of causation of damage to defeat Aerojet's reliance on the "sudden and accidental" exception to the pollution exclusion. Accordingly, Juge does not assist Aerojet in this case.
We conclude Aerojet's due process argument is without merit.
III. Evidentiary Ruling
Aerojet next contends the trial court erred in refusing to consider the drafting history of the "sudden and accidental" clause and insurance industry representations to insurance regulators, which according to Aerojet demonstrated that the insurance industry never intended the clause to be limited to "abrupt" events and never intended the clause to preclude coverage for gradual, unexpected and unintended pollution. We shall conclude Aerojet fails to show prejudice warranting reversal.
As Aerojet acknowledges, trial court error in excluding evidence is not reversible unless it is prejudicial, i.e., unless it is likely that a result more favorable to the appellant would have been reached in the absence of the error. (Cal. Const., art. VI, § 13 ; Code Civ. Proc., § 475 .)
Here, even assuming for the sake of argument that the evidence should have been admitted to determine the meaning of "sudden and accidental," and even assuming for the sake of argument that "sudden" can mean gradual, these points would not overcome Aerojet's fatal flaw of expressly declining to address the lack of causation issue.
Aerojet contends the trial court, by excluding the extrinsic evidence, "unduly narrowed the scope of the pollution exclusion by imposing an `abruptness' requirement that caused the court to reject outright a number of releases described in Aerojet's responses to insurers' interrogatories." Aerojet provides no further explanation and has therefore waived the contention. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3 [reviewing court may disregard contentions unsupported by factual analysis].)
Moreover, even if the matter were not waived, Aerojet fails to explain how it could have been prejudiced by the evidentiary ruling in light of our conclusion in part II, ante, that the judgment is sustainable on the ground that Aerojet's alleged sudden and accidental events were not the cause of the environmental injury for which Aerojet seeks insurance coverage in this lawsuit. That conclusion is based primarily on Aerojet's response to interrogatory No. 179, which asked Aerojet: "Do YOU contend that any of the amounts for which YOU seek coverage resulted from or were caused by sudden and accidental discharges?" (Emphasis added.) Aerojet responded, in relevant part, "Aerojet . . . believes that any `sudden and accidental' discharges at the Aerojet or Azusa site, regardless of how the term is defined, did not damage or threaten third-party property." (Emphasis added.)
In its reply brief on
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