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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
lusion inquires whether the discharge was unintentional and unexpected, not whether the damage was unintentional and unexpected. (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.) Thus, an insured cannot avoid the pollution exclusion by showing it intentionally disposed of pollutants without intending to cause environmental injury. This point does not support Aerojet's position that the pollution exclusion does not refer to causation of damage. As we have recounted, it does.
Aerojet cites the statement in Travelers, supra, 63 Cal.App.4th 1440, that if the insurer meets its initial burden in a summary judgment proceeding by showing the pollution exclusion applies and by further showing the insured cannot reasonably be expected to make a prima facie case that the claimed damages arose from a sudden and accidental discharge, the burden then shifts to the insured to show a triable issue exists "as to the application of either the pollution exclusion or the sudden and accidental exception." (Id. at p. 1456.) Focusing on the disjunctive "or" in the quoted sentence, Aerojet concludes it can defeat summary judgment merely by presenting evidence of the existence of a "sudden and accidental" event, regardless of whether or not that event caused any covered damage. Aerojet is wrong. The question of a "sudden and accidental" event does not exist in a vacuum; rather, it is an exception to the pollution exclusion. As we have stated, the issue of whether pollutants caused covered damage is encompassed in the pollution exclusion. Thus, the mere existence of a sudden and accidental event is not enough to invoke the "sudden and accidental" exception to the pollution exclusion. The mere existence of a sudden and accidental release of pollutants is meaningless in the context of this case unless the release caused covered damage.
We accordingly reject Aerojet's position that the issue of causation of covered damage is not encompassed in the pollution exclusion clause.
Consequently, we reject Aerojet's contention that the notice of motion raised only the issue of whether any "sudden and accidental" events occurred.
Aerojet cites Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, for the proposition that the trial court cannot summarily adjudicate subissues which were not expressly set forth in the notice of motion. However, Aerojet has not quoted or challenged the portion of the notice of motion addressed to summary adjudication. Moreover, Homestead was decided under a prior version of section 437c, which allowed summary adjudication of facts or issues that did not completely dispose of a cause of action or a defense. (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478.) Since the current statute no longer allows summary adjudication of such individual issues, Homestead's holding "is unjustified under the present version of section 437c, subdivision (f)." (Sequoia Ins. Co., supra, 13 Cal.App.4th at p. 1478.) Aerojet claims the continuing validity of Homestead is shown by Butcher v. Gay (1994) 29 Cal.App.4th 388, 402, fn. 5. However, Butcher merely said it would have been better practice for a moving party to indicate which undisputed facts pertained to causation and which pertained to duty, because although section 437c did not expressly require such designation, summary judgment is "`not a trap for an unwary opponent.'" (Id. at p. 402, fn. 5.) Butcher attributed the quote to Homestead. (Butcher, supra, 29 Cal.App.4th at p. 402, fn. 5.) Thus, Butcher did not hold Homestead had continuing validity after amendment of section 437c.
We conc
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