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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
appeal, Aerojet claims prejudice is shown by evidence it submitted in connection with its motion for reconsideration, which assertedly established that property damage was caused by specific sudden and accidental releases. However, Aerojet may not rely on this evidence, because we have rejected Aerojet's only appellate argument challenging the propriety of the trial court's denial of the reconsideration motion. Thus, Aerojet on appeal argues the trial court abused its discretion in denying reconsideration on the due process issue, in that the court incorrectly concluded the causation question had been raised in the insurers' motion. We have rejected this argument, because the causation question was indeed raised in the insurers' motion. Aerojet has failed to make any other assignment of error or present any legal or factual analysis that would support reversal of the denial of reconsideration and has therefore waived any other ground for reversal with respect to the reconsideration motion. (Cal. Rules of Court, rule 15; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Aerojet nevertheless argues in its reply brief that the insurers' brief on appeal does not question the sufficiency of the evidence submitted with Aerojet's reconsideration motion. Aerojet says the insurers merely urge this court to disregard the evidence on procedural grounds, and therefore the adequacy of Aerojet's evidence submitted in the reconsideration motion is undisputed, and therefore the trial court would have reached a result more favorable to Aerojet in the absence of the court's errors. Aerojet's reasoning is faulty. Its failure to present for appellate review the propriety of the trial court's denial of reconsideration does not translate into evidence of prejudice favoring Aerojet.
We conclude Aerojet fails to show any prejudice warranting reversal based on its claim of evidentiary error.
IV. "Sudden and Accidental"
Aerojet next argues that even under the trial court's interpretation that "sudden and accidental" required an abrupt event, the trial court improperly applied the pollution exclusion to defeat coverage. According to Aerojet, it showed releases of perchlorate and NDMA which qualify as "sudden and accidental" even under the trial court's interpretation. Aerojet points out the relevant release is the initial discharge into the environment. (Standun, supra, 62 Cal.App.4th at p. 889 [relevant discharge was initial discharge of hazardous waste into landfill, not subsequent release of pollutants from the landfill into the water, air and adjoining land].) According to Aerojet, the relevant releases occurred during sudden and accidental events, e.g., (1) miniscule amounts of pollutants were released to the air during test firings of rockets in the 1940's and 1950's, despite Aerojet's belief at that time that pollutants would not be present or would be consumed during the test firings, and (2) miniscule amounts of perchlorate were present in ashes left by fires used to dispose of scrap propellant, despite Aerojet's belief at the time that the perchlorate in the scrap propellant would be consumed by the fire. Aerojet argues the trial court erred in concluding the relevant "release" of pollutants occurred during subsequent routine washdown operations.
Here again, however, as in part III, ante, Aerojet fails to show how any such error (assuming error occurred) could have prejudiced Aerojet, in light of our conclusion in part II, ante, that the judgment is sustainable on the ground no triable issue was presented to show causation of covered damage with respect to the alleged sudden and accidental events. Accordingly, Aerojet fails to show reversible error.
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