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Hercules8/15/2001
, when this Court required the cause of the pollution to be sudden, unintended and unexpected. Indeed, form NMA 1333 specifically provides for coverage of property damage when the cause is seepage, pollution or contamination.
This reading is untenable because, as stated explicitly in the last sentence of the above excerpt, it allows coverage for seepage, pollution, or contamination. It does so on the theory that the migration of a molecule of contaminant into groundwater is a happening that causes damage. Hercules argues: " he jury also reasonably could have found that when the pollution first came in contact with third-party property, such as groundwater, such a 'happening' was abrupt." As explained above, however, the "contact" is not a happening. The migration of contaminants is seepage, and cannot be parsed out to be either a cause or an effect of seepage. Allowing coverage for the migration of contaminants on the theory proposed by Hercules would vitiate the entire exclusion and is inconsistent with the plain meaning of its provisions as interpreted by this Court. Therefore, the jury was properly instructed on the meaning of NMA 1685 and NMA 1333.
Failure to File Certain Exclusions with Delaware Insurance Commissioner
Before trial, Hercules filed a motion styled as a motion in limine seeking to preserve the ability to "present factual evidence to the jury to prove that the North River JU policy provisions, including form NMA 1685 had not been filed [with the Delaware Insurance Commissioner]." The trial court rejected this motion on several grounds. First, Hercules' motion in limine was in reality a motion for summary judgment and hence untimely under the scheduling order.
Second, filing of NMA 1685 is not required. Third, even if filing were required, the exclusion would be enforced under the savings provision in the statute because it was not against public policy. Fourth, the insurance commissioner had not sought to contest the provision's validity and "it would be inappropriate to attempt to vindicate the law through a one-sided application of the statute."
The Superior Court's denial of Hercules' "motion in limine" regarding the NMA 1685 pollution exclusion on the ground that it was untimely under the operative case management order is reviewed for an abuse of discretion. Under Super. Ct. Civ. R. 16(e), pretrial orders "shall control the subsequent course of the action." Pretrial orders "shall not be modified except by leave of the Court upon a showing of good cause." We review de novo the trial court's initial determination that the motion in limine was actually a motion for summary judgment.
We hold that the trial court's characterizations of Hercules' motion as a summary judgment motion was correct as a matter of law. Hercules styled the motion as a "Memorandum of Law in Support of Hercules' Motion in Limine on North River's Failure to Comply with the Delaware Insurance Code." The motion states that North River "has admitted, for the first time, that North River's JU policy forms, including the NMA 1685 pollution exclusion language" had not been filed with the Delaware Insurance Commissioner. Hercules' motion therefore sought a ruling that "nothing in the Court's [Summary Judgment Opinion] precludes the presentation of evidence of North River's violation of the Delaware Insurance Code, thereby providing the basis for excluding these exclusions from consideration by the jury." Hercules added, "this Court should hold that Hercules is entitled to prove at trial that North River... fail to file... and therefore the exclusions are unenforceable...." (emphasis added).
It will quickly be seen that this is not a mo
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