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INDEPENDENT PETROCHEMICAL CORP. v. AETNA CAS. & SU

January 10, 1994

INDEPENDENT PETROCHEMICAL CORPORATION, et al., Plaintiffs,
v.
AETNA CASUALTY AND SURETY COMPANY, et al., Defendants.


Flannery


The opinion of the court was delivered by: THOMAS A. FLANNERY

 I. BACKGROUND

 In 1971, plaintiff IPC arranged for Russell Bliss, an independent contractor, to dispose of certain waste materials for its customer Northeastern Pharmaceutical and Chemical Company ("NEPACCO"). The waste materials contained dioxin, a family of chemical compounds that, in sufficient concentrations, may cause serious harm to humans, animals, and plants. *fn2" On five separate occasions between February and October of 1971, Bliss removed the hazardous waste in his tank trucks to a facility in Frontenac, Missouri, where he mixed it with waste oil and emptied the resulting mixture into storage tanks. Bliss later sprayed the mixture as a dust suppressant at a number of sites in Missouri.

 As the toxic effects of the dioxin allegedly became apparent, a number of claims were brought against plaintiffs as well as Bliss. *fn3" At least fifty-seven civil actions involving more than 1,600 claimants were filed against plaintiffs, alleging bodily injury and property damage from exposure to contamination as a result of the spraying. In addition, class actions and suits by the State of Missouri and the United States were filed. The individual claimants sought in aggregate $ 4 billion in bodily injuries and property damage, as well as $ 4 billion in punitive damages. All of the private actions have been resolved with one exception, a case dismissed for failure to prosecute, which is currently on appeal. The actions by Missouri and the United States have both been settled, with the settlements currently awaiting court approval.

 Between 1971, when IPC agreed to assist NEPACCO in disposing of the hazardous waste material, and 1983, when this case commenced, IPC was insured by sixty-seven primary and excess liability insurance policies purchased from the twenty-three insurers named as defendants in this action. In November 1983, plaintiffs filed suit seeking a declaratory judgment that these primary and excess insurers are obligated to defend and indemnify plaintiffs for all settlements and judgments, if any, in the dioxin-related claims arising out of the spraying of the hazardous waste material. In February of 1991, the Court granted summary judgement in favor of certain defendants in regard to those policies which designated New York law as controlling.

 
This insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental.

 The policies issued by the London insurers and certain domestic insurers (the "London exclusion") contain or incorporate the following pollution exclusion, with minor variations not relevant to this motion:

 This policy shall not apply to . . .

 
Personal Injury or Bodily Injury or loss of, damage to, or loss of use of property directly or indirectly caused by seepage, pollution or contamination, provided always that this paragraph (1) shall not apply to liability for Personal Injury or Bodily Injury or loss of or physical damage to or destruction of tangible property, or loss of use of such property damaged or destroyed, where such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this Insurance.

 The policies issued by INA (the "INA exclusion") contain, in addition to the domestic insurers' exclusion, the following pollution exclusion:

 
This insurance does not apply to bodily injury, personal injury, or property damage arising out of pollution or contamination caused by the discharge or escape of oil or of any other pollutants or contaminants, unless such discharge or escape results from a sudden happening during the policy period, neither expected nor intended from the standpoint of the insured.

 The policy issued by Travelers contains the following pollution exclusion:

 It is agreed that this insurance does not apply

 
(a) to bodily injury or property damage arising out of emission, discharge, seepage, release or escape of any liquid, solid, gaseous or thermal waste or pollutant
 
(1) if such emission, discharge, seepage, release or escape is either expected or intended from the standpoint of any insured or any person or organization for whose acts or omissions any insured is liable . . .

 Plaintiffs do not dispute here that Bliss' sprayings constituted discharges within the meaning of all four insurance forms. What is at issue is whether the exceptions to the pollution exclusions apply to the facts of this case.

 The parties agree that the exceptions to the domestic insurers' exclusion, the London exclusion and the INA exclusion should all be interpreted identically in deciding this question. However, the same cannot be said for the Travelers' exclusion, because it does not contain the word "sudden" or its equivalent. The parties, though, are in apparent agreement that its "expected or intended" language is identical in substance to use of the word "accidental" found in the domestic insurers' exclusion. As such, the Court's discussion in this memorandum of the term "accidental" shall unless otherwise indicated encompass all four forms, while the its discussion of the word "sudden" shall encompass all but the Travelers' exclusion.

 II. DISCUSSION

 The central and most highly disputed question before the courts that have looked at the pollution exclusion clause has been whether the phrase "sudden and accidental" as found within the clause is ambiguous or unambiguous. Generally speaking, those courts that have viewed it to be ambiguous have found in favor of the insureds, while those that have seen it as unambiguous have found for the insurers. *fn5" To date, the highest courts in the states of Colorado, Georgia, West Virginia and Wisconsin have found coverage after determining the pollution exclusion clause to be ambiguous. *fn6" The highest courts in the states of Florida, Massachusetts, Michigan, North Carolina and Ohio, *fn7" and a majority of federal courts of appeal, have found clause unambiguous and have accordingly ruled for the insurers. *fn8"

 No Missouri court has addressed the pollution exclusion clause. However, in the case of Aetna Casualty & Surety Co. v. General Dynamics Corp., 968 F.2d 707 (8th Cir. 1992), the Eighth Circuit, interpreting Missouri law, found the phrase "sudden and accidental" to be unambiguous and synonymous with the words "abrupt" and "unexpected". Id. at 710. Defendants ask this Court to give deference the Eighth Circuit's opinion, and argue that there was nothing either abrupt or unexpected about Bliss' conduct. Plaintiffs argue that the Eighth Circuit was wrong both in finding the phrase "sudden and accidental" to be unambiguous and in ...


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