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South Dakota State Cement Plant Commission v. Wausau Underwriters Insurance Co.8/23/2000
1 (citations omitted) (Miller, J., dissenting). As Justice Miller noted in his dissent in Stoebner, " t is unfortunate that neither party, especially [Wausau], sought to have this issue appropriately resolved earlier." Id.
[ ] In the hearing on the summary judgment motion in regards to the duty to defend, the trial court noted that "the insurance company has the burden of proving that all the underlying claims clearly fall outside the policy coverage." The court found that "facts in the underlying action [exist] which would support a nuisance and trespass cause of action even if the jury in the underlying action was to find that the cement dust was not a pollutant, that it is a contaminant or an irritant within the meaning of the policy language." The court emphasized that the complaint should not be read as a whole; instead, "if any part of the underlying suit states a claim then there is a duty to defend." The trial court found, in granting SDCP's motion for summary judgment on Wausau's duty to defend, that "damages in nuisance and trespass" are causes of action "clearly, as well as potentially," within Wausau's policy coverage.
[ ] In the present case, bodily injury and property damage coverage was provided by Wausau to SDCP in the "Products-Completed Operations Hazard" provision and the "Comprehensive Liability" provision. In each of the Wausau insurance policies, the "absolute pollution exclusion" (exclusion) provides:
This insurance does not apply:
...
(f) (1) to bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:
...
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. (Emphasis added.)
[ ] We have often stated that " n insurer's duty to defend and its duty to pay on a claim are severable and independent duties." Wertz, 540 NW2d at 638 (citing Hawkeye-Sec. Ins. Co. v. Clifford, 366 NW2d 489, 490 (SD 1985)). An insurer's duty to defend "'is much broader than the duty to pay a judgment rendered against the insured.'" Id. (quoting Hawkeye, 366 NW2d at 490). The insurer has the burden of showing that no duty to defend exists. Id. (citing North Star Mut. Ins. Co. v. Kneen, 484 NW2d 908, 912 (SD 1992)). The insurer's burden is satisfied by proving that the insured's claim "'clearly falls outside of policy coverage.'" Id. (quoting Kneen, 484 NW2d at 912 (citing City of Fort Pierre v. United Fire & Cas. Co., 463 NW2d 845, 847 (SD 1990); Bayer v. Employers Reinsurance Corp., 383 NW2d 858, 861 (SD 1986); Hawkeye, 366 NW2d at 492)) (emphasis in original). In addition, if it "arguably appears from the face of the pleadings in the action that the alleged claim, if true, falls within the policy coverage, the insurer must defend." Hawkeye, 366 NW2d at 491. If, after reviewing the complaint and other appropriate record evidence, "'doubt exists whether the claim against the insured arguably falls within the policy coverage, such doubts must be resolved in favor of the insured.'" Wertz, 540 NW2d at 638 (quoting City of Fort Pierre, 463 NW2d at 847 (citing Hawkeye, 366 NW2d at 492)).
[ ] The following excerpts from the original complaint filed in the lawsuit identify the allegations against SDCP and the other "polluting defendants":
I.
Facts Common to All Causes of Action Against All Except Developer Defendants
...
2. This action is brought to recover compensation for damage to property and proper
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