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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
"RESPONSE TO INTERROGATORY NO. 179:
"Aerojet [objects to the interrogatory as argumentative concerning the meaning of `sudden and accidental'].
"Subject to the foregoing, Aerojet responds that as it stated in response to Interrogatory No. 174,[ ] incorporated here, and on the basis of information now known, it is not responsible for any actual or threatened third-party property damage that is the subject of the Azusa environmental actions. Accordingly, Aerojet presently 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. If Aerojet ultimately is found responsible or enters into settlement, Aerojet responds that any such payment may be related to `sudden and accidental' discharges by Aerojet or others for which Aerojet will seek coverage. Discovery is continuing."
In opposition to summary judgment, Aerojet responded to the insurers' separate statement of undisputed facts regarding Interrogatory No. 179, i.e., the lack of damage from the alleged sudden and accidental discharges, by stating: "Disputed. [The insurers'] statement inaccurately paraphrases Aerojet's interrogatory response and omits certain facts stated therein. Please refer to Aerojet's Response to Interrogatory No. 179."
Aerojet did not dispute the insurers' evidence regarding Aerojet's routine disposal activities. Aerojet's opposition memorandum of points and authorities asserted the only issue raised by the moving papers was whether there were any "sudden and accidental" discharges, which Aerojet defined to include gradual, unexpected and unintended pollution. Aerojet expressly declined to address any question of causation, stating (incorrectly) that it was "not necessary" to address causation of damage because the only issue raised by the motion was whether any of the occurrences were sudden and accidental.
Aerojet submitted evidence concerning discharges it asserted were sudden and accidental, under Aerojet's definition. Aerojet also asked the trial court to consider evidence and case law from other states concerning the drafting history of the pollution exclusion clause, which assertedly showed the insurance industry, in presenting the "sudden and accidental" language to insurance regulators as a qualification to the pollution exclusion, never intended "sudden" to be limited to "abrupt" discharges, but rather to include gradual discharges. Aerojet also presented a "counter-designation of material facts" asserting, among other things, that it did not know pollutants were being discharged by some of its activities such as test firings of rocket fuel.
On August 13, 1999, at the hearing on the summary judgment motion, Aerojet's counsel told the trial court "For purposes of this motion, we are not going to dispute that insurers have met their--we will assume for purposes of the present motion that insurers have met their initial burden under California law and that we now need to point out evidence in the record to create a genuine issue of fact."
On August 26, 1999, the trial court issued its written ruling denying summary judgment due to the insurers' failure to show absence of a duty to defend, but granting summary adjudication to the insurers on the issue that the insurers had no duty to indemnify Aerojet because coverage was excluded by the pollution exclusion clauses in the insurance policies.
The court declined to consider the drafting history of the insurance industry's "sudden and accidental" exception to the pollution exclusion clause, noting California case law had rejected this approach. The court order observed that Calif
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