# Just v. Land Reclamation Ltd.

> Wisconsin Supreme Court · June 19, 1990 · 155 Wis. 2d 737

URL: https://www.frixlaw.com/law-library/cases/9676578

## Case

- **Full name:** Thomas S. JUST and Lisa P. Just, Shirley M. Bosch, Roger Dosemegan, John Walterman and Barbara Walterman, Eugene Modesti and Minnie Modesti, Gilbert L. Paar and Patricia A. Paar, Charles Domanico and Rosemarie Domanico, Thomas A. Richardson and Fern D. Richardson, Bud Ruter and Bernice Ruter, Ralph v. Tuinstra, Kenneth Waters and Kathy Waters, Thomas Weyker and Maye Weyker, Verlyn Almond and Mildred Almond, Terry A. Andersen and Bettye J. Andersen, William Bachand, John E. Baker, Jr. and Mary E. Baker, Gary K. Bartels and Mary A. Bartels, Marvin Bosteder and Joan Bosteder, Allen Depatie and Delores Depatie, Richard E. Ehmcke and Mary v. Ehmcke, Bob Eliades and Olympia Eliades, Gary Field and June Field, Patrick Garner and Susan Garner, Kermit Hansen and Louise Hansen, Hugh Hardin and Nellie Hardin, Donald Hess and Ethel Hess, May v. Holtz, Dennis J. Jalensky and Laurie A. Jalensky, Lloyd A. Johnson and Ellen A. Johnson, James G. Kairis and Sandra L. Kairis, Richard Kiehlbauch and Pearle F. Kiehlbauch, James Kimes and Linda Kimes, Walter C. Klingenmeyer and Betty Klingenmeyer, Joseph Kristan and Ilona Kristan, Steven H. Kroll and Judith R. Kroll, Jerome Kronenberg and Dorothy Kronenberg, Joseph Kurali and Irma Kurali, Daniel v. Larsen and Karen R. Larsen, Herman Lederhaus and Gertrude Lederhaus, Cary E. Manderfield and Kim M. Manderfield, John W. Mikkonen and Holly D. Mikkonen, Anita J. Oakes, Kenneth Pauls and Virginia Pauls, Myron Payne and Doris Payne, George Perdikaris and Georgia Perdikaris, Mark A. Porcaro, Mark Purdy and Faya Purdy, Kurt Rasmussen and Barbara Rasmussen, Melvin Rose and Nancy Rose, Irene Roselle, James Shalbrack, Robert Smith and Jean Smith, Paul C. Sorensen, Chris Spielman and Susann Spielman, Patrick Sullivan and Janice L. Sullivan, Peter F. Tillema, Dennis Wojak and Pamela A. Wojak, Kenneth Beecher and Susan Beecher, Walter Fleuchaus and Dorothy Fleuchaus, Donald Gillette and Shirley Gillette, Daniel Jensen and Carol Jensen, Plaintiffs-Intervening-Appellants, v. LAND RECLAMATION, LTD., a Domestic Corporation, Defendant-Third Party Plaintiff-Appellant-Petitioner, GO OF WISCONSIN, INC., a Domestic Corporation, Defendant-Third Party Plaintiff; BITUMINOUS CASUALTY CORP., a Foreign Insurance Corporation, Defendant-Third Party Plaintiff-Respondent, v. N. CHRISTIANSON & SON REALTY, Morgenson Century 21, Bear Realty, Remax of Wisconsin, Inc., ERA-Kraemer Realty, L.L. Freeman, Inc., Sidney J. Friedman, Olympic Homes Sales Associates, Inc., Olympic Homes Construction Corporation, Steven Kroll, Shirley Bosch, Rosemarie Domanico, Roger Dosemagen, Cary Manderfield, Kim Manderfield, John Mikkonen, Eugene Modesti, Myron Payne, James Shalbrack, John Walterman, Third Party Defendants
- **Court:** Wisconsin Supreme Court
- **Decided:** June 19, 1990
- **Citations:** 155 Wis. 2d 737; 456 N.W.2d 570; 20 Envtl. L. Rep. (Envtl. Law Inst.) 21407; 1990 Wisc. LEXIS 261
- **Precedential status:** Published
- **Opinion:** Dissent by Steinmetz
- **Judges:** William A. Bablitch
- **Cited by:** 132 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by Bill Call Ford, Inc. v. Ford Motor Co., 830 F. Supp. 1045 (1993).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676578

## How later opinions describe it (automated extraction)

- holding that the phrase “sudden and accidental” in a pollution exclusion clause has no temporal requirement
- holding that the terms "sudden and accidental" in a pollution exclusion clause means unexpected and unintended, thus excluding coverage even if pollution occurs over a period of time
- noting construction of "sudden and accidental” comports with conclusion that insurance industry’s revisions of standard for CGL policy to include pollution exclusion at issue here with intent to exclude only losses caused by expected or intended pollution

## Opinion text

STEINMETZ, J.
(dissenting). The majority has used linguistic legerdemain, "Now you see it, now you don't" by interpreting the clear words "sudden and accidental" to be ambiguous and as a result to mean unexpected or unintended. In its zeal to provide insurance coverage where it does not exist, it has changed an insurance policy into an assurance policy. With its interpretation, an insurance policy is not a risk contract but a guarantee for all damages. The policy now becomes a deep pocket to pay for business mistakes. There is no explanation of how a dump site for human wastes can ever be free of pollution of some sort. However, it does not matter because after this decision, an operator who is able to obtain an assurance policy will no doubt have to agree to an indemnification clause from the insured to the insurer. From now on only government units will *761 have deep enough pockets to license dump sites and pay for damages caused. There is no longer any reason for an owner to carefully operate a dump site because under the language of this policy as construed by the majority, all negligently caused damages are now covered, as long as the damages are not deliberate, or are unintentional, or are unexpected, even though pollution discharges from a landfill site most likely can be expected.
While I agree with the majority that exceptions or exclusions in insurance policies are generally to be strictly construed against the insurer, I note that strict construction does not permit a strained construction. Bulen v. West Bend Mut. Ins. Co., 125 Wis. 2d 259, 264 , 371 N.W.2d 392 (Ct. App. 1985). Strict construction against an insurer also does not allow a court to rewrite a policy to bind an insurer to a risk that it did not contemplate and for which it has not set a premium. Id. Because I find that the majority relies on a strained review of dictionary definitions of the term "sudden" to construe the phrase "sudden and accidental" in the pollution exclusion in order to find the ambiguity necessary to make its case, I dissent.
I disagree with the majority that the phrase "sudden and accidental" is ambiguous when used in the context of the policy's pollution exclusion clause. The majority finds its ambiguity through a comparison of dictionary definitions of the term "sudden." See majority op. at 745-746. While at first glance the differing "primary" definitions might create confusion, the problem is clarified through review of the stated fact that the Webster's Third New International Dictionary generally lists its definitions according to earliest ascertainable meaning. See Preface, Webster's Third New International Dictionary 6a (1961). In contrast, the Random House Dictionary states that it generally lists the most frequently *762 used meanings of a word first. See Random House Dictionary of the English Language xxxii (2d ed 1987). Since the Random House Dictionary lists the most frequently used meaning of "sudden" to be that with a temporal denotation, "happening, coming, made or done quickly ..." (Id. at 1900), it cannot necessarily be asserted that an ambiguity arises as to "primary meaning" of the term.
The point is made, however, that dictionary definitions of "sudden" denote both a temporally restricted element and an element of unexpectedness. "Primary meaning" aside, I do not find an inherent ambiguity within this contest of dictionaries. I conclude that the phrase is unambiguous because the term "sudden," within the context of the phrase, necessarily adds a temporal element. The strained reading adopted by the majority reduces the term to mere surplusage.
In context, the term "sudden" is connected by the conjunction "and" to the term "accidental." Thus, the pollution exclusion requires that the discharge in question be shown to be both "sudden and accidental" before coverage is afforded. The plain meanings of the terms "accident" and "accidental," derived from a recognized dictionary, plainly denote both the unexpected and unintended. See Webster's at 11. The term "sudden," read in context, adds nothing and is therefore meaningless unless its plain meaning is construed to add the element of brevity, the temporal element, to the characterization of the polluting discharge.
Precedent in this state confirms this plain meaning construction. Although the specific construction of the phrase "sudden and accidental" presents an issue of first impression to this court, in Clark v. London & Lancashire Indemnity Co., 21 Wis. 2d 268, 277 , 124 N.W.2d 29 (1963), an analogous fact situation was presented. The *763 issue was "whether damages caused by a long-continuing course of action, in the nature of the maintenance of a nuisance, constitutes damages 'caused by accident' within the meaning of the policy." In Clark , this court reviewed the weight of authority, which in turn followed well-settled rules of construction, to conclude that injury caused by long-term exposure could not be said to be "caused by accident" as the plain meaning of the term "accident" denotes a sudden and identifiable event in relation to both location and time. Id. at 279, 283 .
As the majority notes, the insurance industry switched from the accident-based policy construed in Clark to the broader coverage of an "occurrence"-based policy. Subsequently, the pollution exclusion was introduced. See generally Note, The Pollution Exclusion Clause Through the Looking Glass, 74 Geo. L.J. 1237 , 1240, 1246 (1987). Notwithstanding these changes, the Wisconsin court of appeals has repeatedly, and I find correctly, construed the phrase "sudden and accidental" within the pollution exclusion as containing a temporal element.
In City of Milwaukee v. Allied Smelting Corp., 117 Wis. 2d 377 , 344 N.W.2d 523 (Ct. App. 1983), the city of Milwaukee claimed that Allied Smelting had, over a period of time, discharged acid into its storm sewer system causing sufficient deterioration to require extensive repairs. Allied Smelting's insurer moved for summary judgment based on the pollution exclusion contained in its policy. The court of appeals relied on Clark to state that coverage under the pollution exclusion was limited to injuries caused by a sudden and identifiable event with respect to both location and time. Thus, the court of appeals concluded through Clark that the pollution exclusion was intended to eliminate coverage for exposure injuries incurred over a period of time. Id. at *764 385-86 . The Allied Smelting court found that the testimony established that the repeated discharges complained of had taken place over a two to ten-year period. Therefore, the court of appeals concluded that "the record and common sense stand in firm refutation of" the contention that the discharge in the case was sudden and accidental. Id. at 386 .
In 1987, the court of appeals relied on both Clark and Allied Smelting to deny coverage under the pollution exclusion when the contamination had been linked to the slow seepage of chromium acid through cracks in the cement floor of Mauthe's chromium plating business. State v. Mauthe, 142 Wis. 2d 620 , 419 N.W.2d 279 (Ct. App. 1987). The Mauthe court confirmed the temporal element of "sudden and accidental" as determinative of the issue without regard to whether the conduct of the insured could otherwise be characterized as intentional. Id. at 626-27 .
Recently, the court of appeals in Wagner v. Milwaukee Mut. Ins. Co., 145 Wis. 2d 609, 612 , 427 N.W.2d 854 (Ct. App. 1988), analyzed the pollution exclusion in accord with Mauthe and Allied Smelting's conclusions to find coverage. In Wagner, the evidence demonstrated that a sudden discharge of a pollutant could be linked at a specific date and time to the accidental piercing of an underground pipe. That the polluting discharge continued over a course of years until discovered was irrelevant when a sudden and accidental discharge was identifiable. Id. at 616-17.
Under the plain meaning construction that I would adopt, I find no discernible conflict between this court's interpretation of "accident" in Clark and reliance on Clark by Allied Smelting and Mauthe and perpetration of this plain construction in Wagner. I therefore disagree with the majority that these court of appeals cases *765 should be overruled. As stated, "accident" was construed in Clark as containing an element of suddenness or a temporal element. The industry transition to an occurrence-based policy broadened coverage and effectively removed Clark's absolute, temporal construction of the term "accident" so as to include coverage for damages occurring over time. I read the plain language of the pollution exclusion, however, as expressly reinstating the temporal element of suddenness to trigger coverage. The court of appeals apparently realized this because Allied Smelting, Mauthe and Wagner properly applied the pollution exclusion as written. None of these cases found or discussed any ambiguity in the policy language. Likewise, all three cases focused on the nature of the discharge leading to the loss and whether that discharge was sudden and accidental rather than focusing on the loss itself. The insured's expectations, knowledge and intentions concerning the resulting harm were considered irrelevant. See generally Note, 74 Geo. L.J. at 1251-53, 1262, 1264-68 and notes.
Because I conclude that the phrase "sudden and accidental" is unambiguous, I would not consider other case law relied upon by LRL. See Bartel v. Carey, 127 Wis. 2d 310, 316-17 , 379 N.W.2d 864 (Ct. App. 1985) (a clause is not rendered ambiguous simply because other jurisdictions conclude that it is ambiguous).
Also, consideration of extrinsic evidence is prohibited when construing unambiguous language. 1 Hope Acres, Inc. v. Harris, 27 Wis. 2d 285, 291 , 134 N.W.2d 462 (1965). In addition, there is no allegation that such *766 representations were relied on in Wisconsin by the public or by the Wisconsin Insurance Commissioner.
LRL also sirgues that the Wisconsin cases are not dispositive because they do not analyze the "sudden and accidental" language of exclusion (f) in light of the "continuous or repeated exposure" language within the definition of "occurrence." LRL asserts that the temporal construction of "sudden and accidental" renders the "continuous or repeated exposure" language in the policy superfluous.
I disagree. My review of the policy in light of this argument is guided by the principle that "a construction which gives reasonable meaning to every provision of a contract is preferable to one leaving part of the language useless or meaningless." Stanhope v. Brown County, 90 Wis. 2d 823, 848-49 , 280 N.W.2d 711 (1979). This court has specifically applied this principle to insurance contracts stating that " '[a] construction of an insurance policy which entirely neutralizes one provision should not be adopted if the contract is susceptible of another construction which gives effect to all of its provisions and is consistent with the general intent.' " Id. at 849 (quoting Inter-Insurance Ex. v. Westchester Fire Ins. Co., 25 Wis. 2d 100 , 130 N.W.2d 185 (1964)).
Contrary to this argument, I conclude that a plain construction of the exception to exclusion (f) does not render the "continuous and repeated exposure" language within the occurrence definition superfluous. Rather, it is LRL's interpretation that neutralizes exclusion (f).
Upon review, the policy's plain language covers occurrences to include those developing over a course of time. The policy then excludes or stops coverage only for pollution-caused harms. The pollution exclusion, however, contains an exception which reinstates coverage when it can be proved that the polluting discharge was *767 sudden and accidental. The court of appeals correctly noted exclusion (f)'s function within the policy:
Exclusion (f) is not completely coterminous with the definition of a 'continuous and repeated exposure' occurrence. It operates to exclude only continuous pollution, not all continuous events. Continuing types of 'occurrences,' as defined, are covered unless the occurrences arise out of pollution events; those are not covered unless such pollution events are sudden and accidental. Read as a whole, the policy covers 'continued and repeated exposure' except for exposures to pollution; then it covers only 'sudden and accidental' events. Therefore, exclusion (f) does not render the 'continuous and repeated exposure' clause superfluous; that clause maintains its vitality when discharge of pollutants is not at issue. (Citation omitted.)
Just, 151 Wis. 2d at 603. 2
Having determined that the language of the pollution exclusion is unambiguous, I reach the second issue of whether the record reveals any dispute of material fact showing or raising a reasonable inference that the alleged pollution discharges were sudden and accidental. *768 In essence, this issue asks whether the granting of summary judgment to Bituminous was proper. LRL argues that, ambiguity issue notwithstanding, the record in this case allows at least a reasonable inference that some of the alleged pollution discharges fall within the policy coverage as "sudden and accidental" discharges.
Summary judgment is frequently used by insurers to raise the question of whether the policy issued to the insured covers the injuries, damages or liabilities alleged. Jones v. Sears Roebuck & Co., 80 Wis. 2d 321, 325 , 259 N.W.2d 70 (1977). Summary judgment is governed by sec. 802.08, Stats. 3 It must be granted by the tried court if no material issues of fact exist because the purpose of summary judgment is to avoid trial when there is no conflict. See Hunter of Wisconsin, Inc. v. Hamilton, 101 Wis. 2d 460, 470 , 304 N.W.2d 752 (1981). When reviewing a summary judgment decision, this court follows the same standards as the lower courts. See Kremers-Urban Co. v. American Employers Ins., 119 Wis. 2d 722, 733 , 351 N.W.2d 156 (1984).
*769 Thus, a court reviewing a summary judgment order first examines the pleadings to determine whether claims have been stated and material factual issues presented. If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party's (here Bituminous's) affidavits for evidentiary facts admissible in evidence or other proof presented to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving party must show a defense which would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact from which reasonable conflicting inferences may be drawn necessitating a trial. See Grams v. Boss, 97 Wis. 2d 332, 338 , 294 N.W.2d 473 (1980).
On the issue of granting summary judgment, LRL contends that Bituminous did not meet its burden to present a prima facie case for summary judgment. I disagree. A prima facie case for summary judgment is established when evidentiary facts are stated which if they remain uncontradicted by the opposing party's affidavits resolve all factual issues in the moving party's favor. Walter Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 655 , 158 N.W.2d 387 (1968).
In support of its motion for summary judgment, Bituminous submitted a chart on which was compiled the plaintiffs' complaints based on the allegations in their second amended complaint and a review of their deposition testimonies. Bituminous also relied on the express language of the plaintiffs' complaint and an itemization of the plaintiffs' claims to illustrate that no *770 sudden and accidental discharges of pollutants on specifically defined dates had been alleged to trigger coverage under the policy. Since Bituminous showed that the evi-dentiary facts fell outside the sudden and accidental discharge requirement for coverage as I interpret the language, it made its prima facie case.
LRL next argues that its affidavits in rebuttal show that material facts as to a sudden and accidental discharge are in dispute. I conclude that these affidavits are fatally flawed. Various allegations of blowing debris lack the specificity of time and date, and in some instances the source of the debris, which are necessary to fall within the plain meaning interpretation of policy coverage. Indeed, one particular allegation presented by LRL occurred after Bituminous stopped providing insurance coverage to LRL. My review of these affidavits leads me to conclude that they assert a constant and on-going problem affected only by wind changes.
LRL also offered an affidavit concerning contamination of three of the plaintiffs' wells. However, the statement that "water samples taken [in October, 1986] from three wells near the landfill were found bacteriolog-ically unsafe," shows only that the wells were contaminated. This and other affidavits contained no evidence to link LRL's operations to the contamination or show that the contamination was possibly the result of a sudden and accidental discharge from the landfill as opposed to a long-term seepage of leechate.
Finally, LRL relied on the language from the plaintiffs' second amended complaint. However, the complaint alleges throughout that LRL's tortious actions occurred "over the course of time." Thus, this complaint avers only that LRL engaged in a continuous and longstanding activity which has caused the alleged pollution problems. From my reading of the pollution exclusion, *771 these affidavits do not rebut Bituminous's defense negating coverage under the policy.
Beyond the evidence in the record, LRL claims on appeal that summary judgment is premature since plaintiffs' discovery is incomplete. According to LRL, the summary judgment order only dismissed Bituminous from the action; the plaintiffs' complaint was not dismissed. Therefore, LRL asserts that the possibility exists that evidence may yet be discovered by the plaintiffs which would trigger coverage under the Bituminous policy. Tandem to this argument, LRL contends that the court of appeals erroneously placed a burden on it to prove at summary judgment that a sudden and accidental discharge exists. According to LRL, this burden would not normally fall to it because it does not know what the plaintiffs will be able to prove until trial.
These arguments are not persuasive. First, in order to defeat a motion for summary judgment, sec. 802.08, Stats., places the burden on an opposing party to set forth specific facts showing that there is a genuine issue for trial in order to defeat the moving party's motion. See Section 802.08(3), Stats.; see also Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 632 , 334 N.W.2d 230 (1983); Board of Regents v. Mussallem, 94 Wis. 2d 657 , 289 N.W.2d 801 (1980).
Thus, on summary judgment, the burden initially fell to Bituminous to show that it is not liable under its policy of insurance because exclusion (f) applies. Then the burden fell to LRL to affirmatively rebut Bituminous's defense by showing the existence of an aspect of coverage, a sudden and accidental event, which would trigger coverage under the policy. See Fischer & Porter Co. v. Liberty Mut. Ins. Co., 656 F. Supp. 132, 140 (E.D. Pa. 1986). My review of the record indicates that LRL is unable to meet its burden.
*772 Second, the court of appeals rejected LRL's argument based only on the possibility that the plaintiffs may yet come forward with evidence of a sudden and accidental discharge. I find that the court of appeals rationale properly disposes of this argument:
This is insufficient to raise the issue that LRL had insufficient opportunity to develop the necessary evidentiary record. We note too that this argument gave the trial court no idea of why further discovery may reveal what discovery up to that point has not revealed, or who is to be deposed, and it is an argument entirely speculative in nature. It asserts no more than that some fact supporting coverage might be divulged should LRL conduct a 'fishing expedition' of unknown length and in unknown waters. Such an argument dispels, rather than creates, doubt that the material facts of the case have been uncovered.
Just, 151 Wis. 2d at 606-07 (emphasis in original). 4
In that LRL offered no specific arguments to the trial court to show that incomplete discovery might yet lead to coverage under the policy, I agree with the court of appeals that any such arguments were waived on appeal. See Driver v. Driver, 119 Wis. 2d 65 , 349 N.W.2d 97 (1984); Hasselstrom v. Rex Chainbelt, Inc. 50 Wis. 2d *773 487 , 184 N.W.2d 902 (1971). Because Bituminous's duty to defend is based on whether coverage is afforded under the policy and because I find no evidence presented on summary judgment which triggers coverage, I conclude that Bituminous has no duty to defend. Therefore, I would hold that the trial court did not err in dismissing Bituminous from the action.
I conclude that the plain meaning of the term "sudden and accidental" in exclusion (f), the pollution exclusion, is unambiguous and contains a temporal element found in the plain meaning of the word "sudden." I also conclude that affidavits and other proof presented to rebut the prima facie case for summary judgment do not support the necessary existence of a genuine issue of material fact showing that a polluting discharge was sudden and accidental. Therefore, I find Bituminous is entitled to summary judgment as a matter of law.
I would therefore affirm the decision of the court of appeals.
I note that the majority does not specifically refer to any extrinsic evidence of early representations from Wisconsin insurance agencies when reviewing the "intended meaning" of the pollution exclusion. Absence of such evidence leads me to conclude that it is apparently nonexistent.
Other jurisdictions have also concluded that exclusion (f) is unambiguous. See, e.g., U.S. Fidelity & Guar. v. Star Fire Coals, Inc., 856 F.2d 31 (6th Cir. 1988); U.S. Fidelity & Guaranty Co. v. Morrison Grain Co., 1990 U.S. Dist. LEXIS 3682 (Kan. March 20, 1990); Ray Industries, Inc. v. Liberty Mut. Ins. Co., 728 F. Supp. 1310 (E.D. Mich. 1989); Intern. Minerals v. Liberty Mut. Ins., 168 Ill. App. 3d 361 , 522 N.E.2d 758 (Ill. App. Ct.) review denied 530 N.E.2d 246 (1988); Barmet of Indiana v. Security Ins. Group, 425 N.E.2d 201 (Ind. Ct. App. 1981); Technicon Electronics v. Am. Home Assur., 141 A.D.2d 124 , 533 N.Y.S.2d 91 (A.D. 2 Dept. 1988); Lower Paxton Tp. v. U.S. Fid. & Guar. Co., 383 Pa. Super. 558 , 557 A.2d 393 (Pa. Super. 1989).
Relevant language of sec. 802.08, Stats., summary judgment, provides:
(2) MOTION . . .. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
(3) SUPPORTING PAPERS . . .. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.
The record reflects that the plaintiffs were aware of Bituminous's motion for summary judgment. The plaintiffs filed a memorandum to the circuit court in opposition to the motion in which they agreed with and adopted LRL's arguments. The plaintiffs also made an appearance at the hearing on the motion for summary judgment and argued in opposition to it. Surely, had LRL or the plaintiffs been able to point to some evidence during the policy period that a sudden and accidental discharge of pollutants had occurred, it would have been to their advantage to set the instance forth at that time. No such evidence was presented.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676578. Public record. Not legal advice.