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South Dakota State Cement Plant Commission v. Wausau Underwriters Insurance Co.8/23/2000
and Other Permits and Rules
264. Plaintiffs ... allege that the various defendants have negligently and intentionally caused the contamination of the air, soil, ground and surface waters ... and that such actions of the polluting defendants have been in direct violation of their various duties of care to these plaintiffs guaranteed to them by Wyoming State laws and regulations.
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VII.
Plaintiff's Fifth Cause of Action Against All Polluting Defendants: Strict Liability
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270. The defendants have allowed toxic wastes to gather upon and to escape from the aforesaid facilities and migrate into the ground, air and waters of the Brookhurst Subdivision.
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273. The toxic and hazardous substances heretofore identified have permeated the air and soil and have contaminated the ground and surface waters on and under Brookhurst, and these materials and substances have trespassed upon and contaminated the persons and properties of the plaintiffs.
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XIII.
Plaintiff's Sixth Cause of Action Against All Polluting Defendants: Trespass
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278. The defendants, by permitting the leakage and escape of toxic wastes into the environment of Brookhurst and, particularly, into the ground and surface water, the soil and the air of that environment, have set in motion various forces which, in the usual course of events, will damage the property and have damaged the persons and properties of these plaintiffs.
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IX.
Plaintiff's Seventh Cause of Action Against All Polluting Defendants: Negligence
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282. By reason of the negligent and willful and wanton acts and omissions of the defendants as have been, at least in part, described herein, the soil, air and waters of the plaintiffs have been contaminated and the well-being of the plaintiffs has otherwise been adversely affected. (Emphasis added in all previous sections.)
[ ] This is the first opportunity for this Court to review and interpret the parameters of an absolute pollution exclusion. It has been often noted that the purpose of a pollution exclusion clause is "to limit liability for environmental damage." Westchester Fire Ins. Co. v. City of Pittsburg, Kansas, 768 FSupp 1463, 1468-69 (DKan 1991). Pollution exclusion clauses are "'intended to exclude insurance coverage resulting from pollution and contamination of the environment, be it land, water, or the atmosphere.'" Id. at 1469. Many jurisdictions have upheld the pollution exclusion as a bar to the insurer's duty to defend. See, e.g., National Elec. Mfrs. Ass'n v. Gulf Underwriters Ins. Co., 162 F3d 821, 827 (4thCir 1998) (holding that the "pollution exclusion unambiguously and explicitly applies to exclude coverage" and therefore, insurer had no duty to defend); Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F2d 1037, 1044 (7thCir 1992) (holding that because the underlying suit arises from the release of pollutants, the pollution exclusion bars coverage and the insurer did not owe a duty to defend).
[ ] In the present case, Wausau contends that according to the pollution exclusion, all "bodily injury" or "property damage" arising out of the "actual, alleged, or threatened discharge, dispersal, release or escape of pollutants" precludes coverage in this case. It is Wausau's contention that each and every asserted claim against SDCP, including the trespass and nuisance claim, are premised upon SDCP's polluting conduct (emission of cement dust); therefore, the pollution exclusion clause negates any duty to defend that Wausau owes
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