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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
overage was caused by pollution (hence excluded from coverage under the pollution exclusion) and was not caused by "sudden and accidental" discharges (which would constitute an exception to the pollution exclusion). We shall conclude there was no due process violation, because the issue was adequately tendered by the insurers' motion.
Due process requires that a party opposing a summary judgment motion be given an opportunity to respond to the grounds upon which the motion is granted. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70.)
Aerojet complains the insurers did not specifically mention "environmental injury " in their notice of motion. Aerojet says Code of Civil Procedure section 437c (hereafter ยง 437c) requires the moving party to state with specificity each of the grounds of law upon which it is relying. Aerojet cites Code of Civil Procedure section 1010, that "the notice of a motion . . . must state . . . the grounds upon which it will be made . . . ." Aerojet cites California Rules of Court, rule 342(b), which provides ". . . If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty shall be stated specifically in the notice of motion . . . ."
Aerojet cites (giving the wrong page cite to the record) the following portion of Transport's notice of motion: "Transport's motion is made on the ground that the pollution exclusion contained in Transport's policy precludes all coverage for the claims asserted against [Aerojet] as described in [Aerojet's] first amended complaint and supplemental complaint on file in this action. Thus, there is no triable issue as to any material fact with respect to Transport's obligation to provide coverage to plaintiff and Transport is entitled to judgment as a matter of law on the basis of the pollution exclusion contained in its policy." Though not quoted by Aerojet, the notice of motion further requested, in the alternative, summary adjudication that the insurers had no duty to defend or indemnify Aerojet with respect to the allegations in Aerojet's first amended complaint and supplemental complaint.
Aerojet claims the reference to the pollution exclusion clause was insufficient to raise lack of causation of environmental injury , because injury is addressed in a different part of the insurance policy, which requires that in order for there to be coverage there must be an "occurrence " which "result in personal injury or property damage." Aerojet says the pollution exclusion does not alter the policyholder's obligation to show injury in order to trigger coverage; the pollution exclusion assumes a covered "occurrence" and merely adds the obligation to show "sudden and accidental" discharge to overcome the pollution exclusion.
We reject Aerojet's tortured construction. The pollution exclusion clause itself incorporates the necessity for causation by stating "It is agreed that this policy does not apply to personal injury or property damage arising out of [pollution]." (Emphasis added.) Thus, the issue of whether pollutants caused covered damage is encompassed in the pollution exclusion clause, a point which was developed in the insurers' moving papers (as we shall recount, post).
Aerojet cites authority that the focus of the pollution exclusion is the discharge of pollutants, not the damage. (Travelers Casualty & Surety Co. v. Superior Court, supra, 63 Cal.App.4th 1440, 1459; Standun, Inc. v. Fireman's Fund Ins. Co., supra, 62 Cal.App.4th at p. 889.) However, the point of that authority is that the "sudden and accidental" exception to the pollution exc
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