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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
nd admitted practice of disposing industrial wastes directly to ditches, pits and earthen basins at Azusa."
The memorandum went on to state, under the subheading "Aerojet's Initial Interrogatory Responses":
". . . Aerojet knows of no sudden and accidental discharges at the Azusa facility which caused the contamination for which it seeks coverage:
"[quoting Aerojet's interrogatory answer:] `Aerojet presently believes that any "sudden and accidental" discharges at the Aerojet 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. [Citation to exhibit].'"
The insurers' memorandum of points and authorities went on to state (under a subheading that Aerojet's supplemental interrogatory responses failed to identify any sudden and accidental events):
". . . Aerojet also acknowledges the [allegedly sudden and accidental] activities did not cause contamination.
"Aerojet does identify one explosion of a `drum containing scrap solid propellant' in the early 1940's. This single incident cannot overcome the bar of the pollution exclusion. First, Aerojet only speculates as to whether this incident could have caused any contamination or pollution, stating that the explosion `may have caused ash containing perchlorate or other perchlorate residue, to come into contact with the ground.' In addition, Aerojet deliberately disposed of massive quantities of runoff and wash down waters containing perchlorate during rocket testing operations. A single explosion of a drum which `may have caused' perchlorate to come into contact with the ground does not explain the perchlorate contamination at the Aerojet facility. Aerojet's routine disposal of perchlorate during testing operations is the cause of any perchlorate contamination. Indeed, in the same supplemental interrogatory responses, Aerojet acknowledges that it routinely disposed of scrap propellant containing perchlorate (the same material which was in the drum that allegedly exploded) by burning it in a quarry north of the facility. This practice apparently continued for approximately 20 years. The suggestion that a single drum explosion can overcome the pollution exclusion when the same material that was in drum was routinely disposed of by Aerojet over a 20 year period is inconsistent with the requirements of [case law]."
Clearly, lack of causation of damage subject to insurance coverage was put in issue by the insurers' summary judgment motions. We reject Aerojet's position that the foregoing statements are mere "passing reference " that are insufficient to put the opposing party on notice that relief is sought on that ground.
Aerojet argues the trial court compounded its due process error by denying Aerojet's motion for reconsideration, by which Aerojet sought to introduce expert evidence and computer modeling assertedly to show that the sudden and accidental discharges had in fact caused environmental injury . The trial court order denying reconsideration stated, among other things, that Aerojet's due process argument was meritless, and the causation question indeed had been raised in the insurers' motion. Since, as we have explained, there was no due process violation in connection with the insurers' motion, Aerojet clearly was not entitled to reconsideration, and it cannot show any abuse of discretion in the trial court's denial of reconsideration.
Contrary to Aerojet's position, this case is not like
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