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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
polluting event and the insured's knowledge or belief that a pollutant would escape.' [Citation.] `It is well established that whether the damages were intended or expected is irrelevant; the pollution exclusion plainly refers to the discharge and not to the environmental damages themselves.' [Citation.]" (Standun, Inc. v. Fireman's Fund Ins. Co. (1998) 62 Cal.App.4th 882, 889.)
". . . ` udden' refers to the pollution's commencement and does not require that the polluting event terminate quickly or have only a brief duration. [Citation.] If a sudden and accidental discharge continues for a long time, at some point it ceases to be sudden or accidental. [Citations.] Still, a sudden and accidental discharge of a dangerous pollutant could continue unabated for some period because of a negligent failure to discover it, technical problems or a lack of resources that delay curtailment, or some other circumstance. Liability from such an event could well be covered." (Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 756.)
Although the insured bears the burden at trial of proving applicability of the "sudden and accidental" exception to the pollution exclusion, the burden is different in a motion for summary adjudication. (Travelers Casualty & Surety Co. v. Superior Court, supra, 63 Cal.App.4th 1440, 1456.) "When an insurer moves for summary adjudication of the duty to indemnify based upon the affirmative defense of the qualified pollution exclusion, the insurer has the burden of establishing that affirmative defense as a matter of law, pursuant to [Code of Civil Procedure] section 437c, subdivision (n)(2). Having met that initial burden, the insurer then has the additional burden, pursuant to [Code of Civil Procedure] section 437c, subdivision (o)(2), of making an affirmative showing that the insured cannot establish that the claims fall within the sudden and accidental exception to the pollution exclusion.
"In order to show that the sudden and accidental exception `cannot be established,' the insurer must show by direct or circumstantial evidence that the insured cannot reasonably be expected to make a prima facie showing that the claimed environmental damages arose from a sudden and accidental discharge, dispersal, release, or escape of pollutants. The insurer may point to the insured's interrogatory answers as evidence that the insured has no facts to support its theory of liability (i.e., the theory that the damages are covered because they arose from sudden and accidental pollution discharges). [Citation.]
"If the insurer meets this burden in its motion for summary adjudication, the burden of proof then shifts to the insured to show that a triable issue of material fact exists as to the application of either the pollution exclusion or the sudden and accidental exception." (Travelers, supra, 63 Cal.App.4th at p. 1456.)
On appeal, the reviewing court exercises its independent judgment, deciding whether under the undisputed facts, the opposing party's claim cannot be established or there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486-487; Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.)
II. Due Process
Aerojet contends the trial court violated Aerojet's right to due process of law by granting summary adjudication on a ground Aerojet never had a chance to address, i.e., that Aerojet could not show that any "sudden and accidental" discharge caused "environmental injury." More specifically, this contention relates to the trial court's conclusion that the environmental injury for which Aerojet sought insurance c
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