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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
lude Aerojet fails to show the insurers' notice of motion was deficient.
Turning now to the moving papers filed in support of the summary judgment motion, we reject Aerojet's contention that the moving papers also failed to give notice that the motion was grounded on lack of causation of environmental damage. We shall see the issue of lack of causation of damage was adequately tendered.
Thus, the insurers' separate statement of undisputed facts asserted as item number 9: "Aerojet contends[ ] that the `sudden and accidental' discharges it has identified did not damage or threaten third party property." The supporting evidence was Aerojet's answer to interrogatory number 179, as follows:
"INTERROGATORY NO. 179:
"Do YOU contend that any of the amounts for which YOU seek coverage resulted from or were caused by sudden and accidental discharges?
"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." (Emphasis added.)
Aerojet's response to the separate statement of undisputed facts, fact number 9, was: "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."
Thus, Aerojet's due process argument fails, because the question of lack of causation was directly put into issue by the insurers' separate statement of undisputed facts.
Moreover, the insurers' memorandum of points and authorities in support of summary judgment also gave notice of this issue, stating in its "INTRODUCTION":
". . . Aerojet says these [sudden and accidental] incidents did not cause the contamination at the facility. Indeed, the overwhelming evidence generated in this action demonstrates that the pollution at Aerojet's Azusa facility, just like the pollution at Aerojet's Sacramento facility, is the result of decades of intentional and deliberate discharges of wastes directly to the ground by Aerojet."
The insurers' memorandum of points and authorities further stated at the end of its "STATEMENT OF FACTS":
"Aerojet does not believe any of these alleged sudden and accidental discharges caused any damage to third party property. [Citation to record.]"
Under the heading "THE POLLUTION EXCLUSION PRECLUDES COVERAGE," the memorandum listed four reasons why Aerojet could not overcome the pollution exclusion and then added:
". . . In addition, none of the alleged [sudden and accidental] releases caused the contamination. After over 15 years, Aerojet cannot identify any legitimate sudden and accidental discharges which caused the contamination at its Azusa facility during Transport's policy period. Aerojet admits this fact. This is not surprising, given the history of Aerojet's routine, long term a
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