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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
ing, Aerojet asserts in a subheading: "The Trial Court Erred in Requiring Aerojet to Show that Sudden and Accidental Releases of Perchlorate Caused an Appreciable Amount of Environmental Injury." (Italics added.) Aerojet argues on appeal that the trial court erroneously relied upon distinguishable case law (Travelers Casualty & Surety Co. v. Superior Court, supra, 63 Cal.App.4th 1440) regarding coverage for intervening sudden and accidental events after an initial intentional discharge of pollutants. According to Aerojet's appellate contention, the appropriate doctrine in this case is the doctrine of concurrent causation, pursuant to which a loss may be covered if it was caused by concurrent causes, one of which was covered and one of which was not covered. (State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 102.)
However, Aerojet expressly waived this matter in the trial court when it pursued its misguided stance (which we have rejected, ante) that the insurers' summary judgment motion did not raise the question of causation of environmental injury . Thus, in its opposition to the summary judgment motion, Aerojet stated:
"By this motion insurers seek summary judgment on the single ground that the `sudden and accidental' pollution exclusion of their policies precludes coverage. In other words, insurers argue that, as a matter of law, none of the various `occurrences' at issue resulted from `sudden and accidental' releases of chemicals. Since that exclusion is the sole basis of this motion, it is not necessary to address issues of:
"[ ] . . . [ ]
"whether a given injury resulted from both a covered and uncovered cause--for instance, from certain releases that were sudden and accidental and others that were not--a situation that would yield a finding of coverage (see State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94) . . . .
"[ ] . . . [ ]
"Although these issues will likely be disputed at trial, they are not at issue here. [Fn. omitted.]"
Thus, Aerojet elected not to address the issue in the trial court; it has therefore waived the matter. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 ["theory of the trial" principle, which precludes party from changing theory of case on appeal, applies to summary judgment proceedings].) We further note that, although the insurers' moving papers did not use the term "concurrent" causation, the matter was put in issue by the moving papers, because the insurers' separate statement of undisputed facts said Aerojet's position was that the alleged sudden and accidental discharges did not damage or threaten property. Moreover, the insurers' moving papers, in discussing Aerojet's assertion that an explosion entitled it to insurance coverage, said "The suggestion that a single drum explosion can overcome the pollution exclusion when the same material that was in drum was routinely disposed of by Aerojet over a 20 year period is inconsistent with the requirements of [Travelers Casualty & Surety Co. v. Superior Court, supra, 63 Cal.App.4th 1440]." Although the moving papers did not expressly discuss Travelers' discussion concerning "intervening" events, the insurers' factual showing sufficed to meet their burden to show applicability of the pollution exclusion. Aerojet's opposition papers in the trial court mentioned in a footnote Travelers' "intervening" event discussion, but as we have seen, Aerojet waived any issue of causation by expressly electing not to address it in the trial court, choosing instead to rely on its (erroneous) claim that causation was not at issue in the summary judgment proceedings.
Insofar a
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