finding that the known loss doctrine precluded an insured from indemnification on an insurance policy covering its liability for water pollution when it purchased the policy after receiving an administrative order from the Environmental Protection Agency confirming that it was releasing hazardous material into the water
How later courts described this case
- finding that the known loss doctrine precluded an insured from indemnification on an insurance policy covering its liability for water pollution when it purchased the policy after receiving an administrative order from the Environmental Protection Agency confirming that it was releasing hazardous material into the water
- holding by the Illinois Supreme Court that determined the sudden and accidental exception to the pollution exclusion was ambiguous because it was subject to more than one reasonable meaning' — abrupt, unintended or unexpected
- construing “sudden” to mean unexpected or unintended, and holding that claims for remediation of property damage involving contamination of Waukegan Harbor and Lake Michigan resulting from discharges over several years of hydraulic oil in ordinary course of insured’s outboard-motor-manufacturing business, such oil having contained PCBs allegedly without insured’s knowledge, subjected insurers to duty to defend under “sudden and accidental” exception to pollution-exelusion clause; resolution of insurer’s duty to indemnify held subject to factual determinations after trial
- noting that “CERCLA was designed to allow governmental agencies flexibility . . . [by] allow[ing] the agencies to exercise discretion in choosing from several forms of relief including mandatory injunctions, response or cleanup costs, and damages for injury to natural resources”
Written by the judges who cited it.
Distinguished
Distinguished by In Re Consol. Objections to Tax Levies of Sch. Dist. No. 205, 306 Ill. App. 3d 1104 (1999)
However, Outboard Marine is distinguishable from the case before us and, in the final analysis, is contrary to the intervenors' position.
The opinion
CHIEF JUSTICE MILLER, concurring in part and
dissenting in part:
I do not agree with the majority’s conclusion that the language used in the standard pollution exclusion clauses is ambiguous. In my view, the clauses clearly exclude coverage for the series of occurrences at issue here.
With one exception, the pollution exclusion clauses appearing in the comprehensive general liability (CGL) policies involved in this appeal provide as follows:
“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 watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”
Coverage will be provided for environmental mishaps otherwise excluded under the policy if the incident is “sudden and accidental.” As the majority points out, substantial disagreement exists regarding the meaning of the word “sudden.” The question here is whether the word “sudden,” as it is used in the pollution exclusion clauses of the CGL policies at issue, means only unexpected and unforeseen, or whether it also has a temporal quality. Finding the term, as it is used in this context, to be susceptible to alternative definitions and hence ambiguous, the majority adopts a construction favoring the insured and concludes that the present matters may be covered by the CGL policies containing this phraseology. I do not agree.
The pollution exclusion generally bars coverage for liability arising from the discharge of pollutants. The exception to the exclusion reinstates that coverage, but only if the discharge is both “sudden and accidental.” Clearly, the parties intended to preclude coverage for gradual discharges of pollutants. Accordingly, in the sense in which “sudden” is used here, the term clearly has a temporal dimension, referring to the abruptness of the event. See, e.g., Northern Insurance Co. v. Aardvark Associates, Inc. (3d Cir. 1991), 942 F.2d 189 (applying Pennsylvania law); United States Fidelity & Guaranty Co. v. Star Fire Coals, Inc. (6th Cir. 1988), 856 F.2d 31 (applying Kentucky law); Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc. (1990), 407 Mass. 675 , 555 N.E.2d 568 ; Upjohn Co. v. New Hampshire Insurance Co. (1991), 438 Mich. 197 , 476 N.W.2d 392 ; Waste Management of Carolinas, Inc. v. Peerless Insurance Co. (1986), 315 N.C. 688 , 340 S.E.2d 374 .
Indeed, defining “sudden” without a temporal element renders redundant the companion term “accidental.” “Accidental” signifies something that is unexpected or unintended. (See Taylor v. John Hancock Mutual Life Insurance Co. (1957), 11 Ill. 2d 227, 230 .) Applying those same senses to “sudden,” as the majority does, makes “accidental” mere surplusage. As one court has stated:
“For the word ‘sudden’ to have any significant purpose, and not to be surplusage when used generally in conjunction with the word ‘accidental,’ it must have a temporal aspect to its meaning, and not just the sense of something unexpected.” Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc. (1990), 407 Mass. 675, 680 , 555 N.E.2d 568, 572 .
The majority dismisses this concern as inconsequential, declaring that insurance contracts are generally filled with overlapping terms. (154 Ill. 2d at 124.) What the majority ignores, however, is that “sudden” is joined to “accidental” by the conjunction “and,” not by the disjunction “or.” The parties clearly intended that the circumstances triggering the exception to the pollution exclusion would be both “sudden” and “accidental”; an incident of pollution must satisfy both requirements for coverage to exist. See Lower Paxon Township v. United States Fidelity & Guaranty Co. (1989), 383 Pa. Super. 558, 577 , 557 A.2d 393, 402 (“The very use of the words ‘sudden and accidental’ (emphasis added) reveal[s] a clear intent to define the words differently, stating two separate requirements”).
The majority also believes that construing “sudden” in the temporal sense of “abrupt” would contradict the policy definition of “occurrence.” (See 154 Ill. 2d at 123-24.) Contrary to the majority’s view, however, adopting the insurers’ interpretation of the term does not give rise to an inconsistency within the policy as a whole. The definition of “occurrence” relates to property damages; the pollution exclusion, in contrast, relates to the manner in which the polluting dispersal, discharge, release, of escape occurs. There is no reason to believe that the provisions were intended to be defined in parallel terms, or that the exclusion is a restatement of the occurrence definition. (See Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc. (1990), 407 Mass. 675, 679 , 555 N.E.2d 568, 571 ; Claussen v. Aetna Casualty & Surety Co. (1989), 259 Ga. 333, 334 , 380 S.E.2d 686, 687-88 ; Abraham, Environmental Liability and the Limits of Insurance, 88 Colum. L. Rev. 942 , 962-64 (1988).) Discussing the same question, one court has observed:
“We have no difficulty reconciling the two provisions. We believe the ‘occurrence’ definition results in a policy that provides coverage for continuous or repeated exposure to conditions causing damages in all cases except those involving pollution, where coverage is limited to those situations where the discharge was ‘sudden and accidental.’ ” (Emphasis in original.) (United States Fidelity & Guaranty Co. v. Star Fire Coals, Inc. (6th Cir. 1988), 856 F.2d 31, 34 (applying Kentucky law).)
It is not remarkable that “occurrence” is defined more broadly than the coverage reinstated trader the pollution exclusion for sudden and accidental discharges.
As a final matter, even if the term “sudden” is considered ambiguous, I do not believe that the incidents at issue here can be said to fall within the exception to the pollution exclusion. Granting the existence of alternative definitions of the term, including the one adopted by the majority, I fail to see how occurrences continuing for more than a decade may be considered “sudden” under any reasonable reading of that word.
JUSTICE HEIPLE joins in this partial concurrence and partial dissent.