# Queen City Farms, Inc. v. Central Nat'l Ins. Co. of Omaha

> Washington Supreme Court · July 20, 1995 · 126 Wash. 2d 50

URL: https://www.frixlaw.com/law-library/cases/9855183

## Case

- **Full name:** Queen City Farms, Inc., Respondent, v. the Central National Insurance Company of Omaha, Et Al, Petitioners
- **Court:** Washington Supreme Court
- **Decided:** July 20, 1995
- **Citations:** 126 Wash. 2d 50; 882 P.2d 703
- **Precedential status:** Published
- **Opinion:** Dissent by Madsen
- **Judges:** Brachtenbach, Andersen, Utter, Guy, Madsen
- **Cited by:** 294 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855183

## How later opinions describe it (automated extraction)

- finding, prior to Woo, a subjective standard applied where an insurance policy provided that an occurrence was covered ‘“which unexpectedly and unintentionally’” resulted in damage, and distinguishing cases in which cpurts relied on common law definitions of “accident”
- recognizing that sometimes language in standard policies does not involve mutual negotiations between the insurers and the insureds
- holding that a party does not need to object to factual distinctions in a special verdict form when the “issue was resolved on a summary motion brought before trial” and the trial court declined to reconsider its summary judgment ruling
- concluding that “these exclusions are ambiguous, and therefore should be construed against the drafter-insurer, to mean that if the polluting event is unexpected and unintended, coverage is provided”
- recognizing that questions of expectation in this context “may be said to involve state of mind, but that does not resolve the inquiry whose state of mind—the insured’s or a reasonable person’s”

## Opinion text

Madsen, J.
(dissenting) — Washington courts have pursued a tortured analysis of the qualified pollution exclusion; they have labeled this exclusion ambiguous and have eliminated it from insurance policies altogether. Jacquelyn A. Be-atty, Exclusions Exclude: Let the Pollution Mean What It Says, 28 Gonz. L. Rev. 401 , 409 (1992-1993). Unfortunately, the result of the majority’s decision today perpetuates and even extends this tortured interpretation of the pollution exclusion in the face of substantial, persuasive authority to the contrary.
While I disagree with nearly every holding by the majority, I will address only those points which cause me most concern.
1. Contrary to the majority’s holding, the pollution exclusion is not ambiguous.
The majority is correct that the qualified pollution exclusion has generated much discussion and several divergent approaches to interpreting the exclusion language. As one commentator has observed:
Paradoxically, the courts have almost uniformly ignored the insurers’ intent and distorted the phrase "sudden and accidental” beyond recognition. With few exceptions, the courts have extended the coverage of policies containing the pollution exclusion " 'to mean just what they choose it to mean.’ ”
E. Joshua Rosenkranz, Note, The Pollution Exclusion Clause Through the Looking Glass, 74 Geo. L.J. 1237 , 1240 (1986) (quoting Lewis Carroll, Through The Looking Glass 94 (1946) (Speech of Humpty Dumpty)).
However, many of the recent and better reasoned decisions which have addressed the qualified pollution exclusion have now concluded that the exclusion language is unambiguous. Rosenkranz, at 1264-68; Technicon Elecs. Corp. v. American Home Assur. Co., 141 A.D.2d 124, 131 , 533 N.Y.S.2d 91 (1988) (recent cases demonstrate "an emerging nationwide judicial consensus that the 'pollution exclusion’ clause is unambigu *121 ous and that . . . the intentional discharge of pollutants over an extended period of time” is excluded); Lumbermens Mut. Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 680 , 555 N.E.2d 568 (1990) (concluding the "better reasoned, and particularly the more recent, judicial interpretations of the pollution exclusion clause” conclude it is clear and unambiguous). 9
*122 In retrospect, the prediction of consensus regarding the pollution exclusion may have been optimistic. However, it is clearly correct to say that the "better reasoned” decisions have found the exclusion unambiguous as the following discussion will amply demonstrate.
Most of the debate regarding the exclusion clause revolves around the use of the terms "sudden” and "accidental” and whether the term "sudden” is ambiguous. The most persuasive analysis on this issue concludes that the term is not ambiguous as demonstrated by the language quoted below:
We cannot reasonably call "sudden” a process that occurs slowly and incrementally over a relatively long time, no matter how unexpected or unintended the process. A "discharge, dispersal, release or escape” of pollutants that happens gradually and continuously for years is not "sudden” in the ordinary and popular sense of the word. Thus, "sudden” necessarily contains a temporal element in addition to its connotation of the unexpected.
(Citations omitted.) Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal. App. 4th 715, 754 , 15 Cal. Rptr. 2d 815 (1993).
The Shell Oil court, along with a large number of recent court opinions considering the term "sudden”, concluded that the term must be attributed a temporal meaning. This conclusion is based on the rationale that to give any meaning to the term "sudden”, it must be assigned a meaning separate from the term "accidental”, particularly where, as in the pollution exclusion here, the two terms appear in the conjunctive. As the Shell Oil court explained:
This approach also avoids making "sudden” and "accidental” redundant. Dictionaries define as "accidental” unexpected and unintended events. . . .
*123 . . . Therefore, in the phrase, "sudden and accidental,” "accidental” conveys the sense of an unexpected and unintended event, while "sudden” conveys the sense of an unexpected event that is abrupt or immediate in nature. "Sudden and accidental” is not ambiguous if we give the words their full significance. A court should not make a phrase ambiguous by unreasonably truncating a word’s meaning.
(Footnote and citations omitted.) Shell Oil, at 755. See also Lumbermens, at 680 ("[f|or the word 'sudden’ to have any significant purpose, and not to he surplusage when used . . . in conjunction with the word 'accidental,’ it must have a temporal aspect to its meaning”); Lower Paxon Township v. United States Fid. & Guar. Co., 383 Pa. Super. 558, 577 , 557 A.2d 393 (1989) (to define "sudden” as "a mere restatement of accidental, would render the suddenness requirement mere surplusage”); Dimmitt Chevrolet, Inc. v. Southeastern Fid. Ins. Corp., 636 So. 2d 700, 703 (Fla. 1993) ("sudden” has temporal meaning); ACL Technologies, Inc. v. Northbrook Property & Cas. Ins. Co., 17 Cal. App. 4th 1773, 1787 , 22 Cal. Rptr. 2d 206 (1993) (for "sudden” to have an independent meaning from "accidental” it must be given its temporal meaning); Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 376 (Minn. Ct. App.) ("sudden” carries a temporal connotation of "abruptness”; since accidental means "unexpected”, "sudden” must mean relatively quick, not over a long period), review denied (Mar. 26, 1992); Liberty Mut. Ins. Co. v. SCA Servs., Inc., 412 Mass. 330, 335 , 588 N.E.2d 1346 (1992) ("sudden and accidental” in exclusion clause means "abrupt”); Hartford Accident & Indem. Co. v. U.S. Fid. & Guar. Co., 962 F.2d 1484 , 1489-90 (10th Cir.) (pollution exclusion is unambiguous and excludes all contamination damage except damage from discharges that are both accidental and occur over a "short period of time”), cert. denied, 121 L. Ed. 2d 335 (1992); New York v. AMRO Realty Corp., 936 F.2d 1420, 1428 (2d Cir. 1991) (for release to be sudden it must occur over a short period of time); A. Johnson & Co. v. Aetna Cas. & Sur. Co., 933 F.2d 66, 75-76 (1st Cir. 1991) (hazardous wastes disposed of at waste disposal site (lagoon) contaminated groundwater; pollution and *124 contamination which took place as concomitant of regular business activity over extended period of time not sudden and accidental release); Ogden Corp. v. Travelers Indem. Co., 924 F.2d 39 , 42 (2d Cir. 1991) (contamination resulting from continuous discharges is excluded because it is not "sudden”); Hicks v. American Resources Ins. Co., 544 So. 2d 952, 954 (Ala. 1989) (the pollution exclusion is unambiguous and bars coverage when applied to á claim involving pollution caused by the purposeful discharge of toxic chemicals); Transamerica Ins. Co. v. Sunnes, 77 Or. App. 136, 140-41 , 711 P.2d 212 (1985) (the qualified pollution exclusion clearly and unambiguously precludes coverage for intentional and nonsudden discharges of pollutants).
The analysis in the above cited cases is best illustrated by the following passage:
The pollution exclusion denies coverage unless the discharge is both sudden and accidental. The district court held that the phrase includes unexpected events occurring over an extended period of time. Since "accidental” includes the unexpected, however, the district court’s construction gave no effect to the word "sudden.” The term "sudden,” we believe, "when considered in its plain and easily understood sense,... is defined with a 'temporal element that joins together conceptually the immediate and the unexpected.’ ” The Upjohn Company v. New Hampshire Ins. Co., 438 Mich. 197 , 476 N.W.2d 392, 397-98 (1991). Indeed, assigning meaning to both "sudden” and "accidental” eliminates any perceived ambiguity. The district court found "sudden” to be ambiguous because it could mean abrupt or unexpected. Because "accidental” includes the unexpected, however, "sudden” must mean abrupt. To hold otherwise would render the word "sudden” superfluous.
Aetna Cas. & Sur. Co. v. General Dynamics Corp., 968 F.2d 707, 710 (8th Cir. 1992).
The majority observes that cases are divided on whether the term "sudden” is ambiguous. This division is meaningless, however, when the basis underlying the conclusion of ambiguity is flawed. In contrast to the clear reasoning of the cases referred to above, other courts have engaged in various forms of tortured analysis to find ambiguity in the language of the exclusion. The decisions which have reached this con *125 elusion generally follow three lines of reasoning, all equally unpersuasive. Lumbermens, at 679. The first approach is to analyze the occurrence clause as being in conflict with the exclusion clause. For example, the court in United Pac. Ins. Co. v. Van’s Westlake Union, Inc., 34 Wn. App. 708, 712 , 664 P.2d 1262 , 39 A.L.R.4th 1040 , review denied, 100 Wn.2d 1018 (1983) compared the language of the occurrence clause with that of the exclusion clause and found a conflict. Since the two could not be reconciled, the court concluded that the pollution exclusion must be ambiguous. Citing Van’s Westlake the Colorado Supreme Court concluded likewise stating:
In the portion of the policies defining occurrence, accident is defined to include "continuous or repeated exposure to conditions, which result in bodily injury or property damage, neither expected nor intended from the standpoint of the insured.” If "sudden” were to be given a temporal connotation of abrupt or immediate, then the phrase "sudden and accidental discharge” would mean: an abrupt or immediate, and continuous or repeated discharge. The phrase "sudden and accidental” thus becomes inherently contradictory and meaningless. City of Northglenn v. Chevron, U.S.A., Inc., 634 F.Supp. 217, 222 (D.Colo.1986); United States v. Conservation Chem. Co., 653 F.Supp. 152, 203-04 (W.D.Mo.1986); Van’s Westlake Union, Inc., 34 Wash. App. at 711-15 , 664 P.2d at 1265-66 .
Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1092 (Colo. 1991); see also Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 122-23 , 607 N.E.2d 1204 (1992) (court must give each term in the policy meaning unless to do so would render the clause or policy inconsistent or inherently contradictory; construing "sudden” to mean "abrupt” creates a contradiction with the language of the occurrence clause) (citing Hecla Mining Co.).
Cases which follow this approach, such as Van’s Westlake, fail to appreciate the distinction between the occurrence clause and the exclusion clause. See Beatty, at 416. Furthermore, most courts now reject this analysis. Majority, at 88. Recent cases recognize that the focus of the occurrence clause is on the property damage and whether such damage was expected or intended. In contrast, the focus of the exclusion clause is on the release itself and it does not *126 concern the damage caused by the release. Lumbermens, at 679.
The second approach toward finding ambiguity in the language of the exclusion is equally unsound. These decisions are based on public policy considerations. These courts acknowledge that "sudden” has a temporal meaning but decline to apply this meaning. Instead, these courts find ambiguity by looking at the drafting history underlying the exclusion.
The critical issue is whether the courts of this state should give effect to the literal meaning of an exclusionary clause that materially and dramatically reduces the coverage previously available for property damage caused by pollution, under circumstances in which the approval of the exclusionary clause by state regulatory authorities was induced by the insurance industry’s representation that the clause merely "clarified” the scope of the prior coverage.
Morton Int’l, Inc. v. General Accident Ins. Co., 134 N.J. 1, 72 , 629 A.2d 831 (1993), cert. denied, 114 S. Ct. 2764 (1994). See also New Castle Cy. v. Hartford Accident & Indem. Co., 933 F.2d 1162 , 1198 (3d Cir. 1991) ("[w]hen first confronted with this issue, the reader’s initial reaction is likely to be that 'sudden’ means 'abrupt’ yet considering drafting history finds term ambiguous).
Finally, other courts, along with the majority in this case, have followed the third line of analysis which is to find the term "sudden” is ambiguous. This is so, the cases say, because under one reasonable definition of the word it means nothing more than "unexpected”. See, e.g., Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333, 335 , 380 S.E.2d 686 (1989); Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 746 , 157 Wis. 2d 507 , 456 N.W.2d 570 (1990). In reaching this conclusion, courts have construed "sudden” in isolation without recognizing the significance of the companion word "accidental”. Lumbermens, at 679. A number of these courts have found an ambiguity by simply finding more than one dictionary definition for the word "sudden”. These courts have failed to evaluate the term in the context of the remaining exclusion language. See, e.g., *127 Just v. Land Reclamation, Ltd., at 745-46; Outboard Marine, at 120-21; Claussen , at 338. 10 When analyzed in context, unless the term "sudden” is accorded a temporal meaning, the "sudden and accidental” exclusionary exception becomes "unexpected and unintended” and the term "accidental” itself means "unexpected and unintended”. Thus, the word "sudden” is rendered superfluous under this approach.
Although the majority in this case at least acknowledges the importance of reviewing the terms of a policy in context, it never answers the above concern. 11 Instead, the majority argues that even though the term "sudden” may sometimes be unambiguous, in the context of the pollution exclusion the term is ambiguous (citing Anderson & Middleton Lumber Co. v. Lumbermen’s Mut. Cas. Co., 53 Wn.2d 404 , 333 P.2d 938 , 34 A.L.R. 731 (1959)). Majority, at 82. In that case "sudden” was held by this court to be ambiguous.
There are a number of problems with relying on Anderson for the proposition that "sudden” is ambiguous in the context of the pollution exclusion. First, it is obvious that Anderson did not involve a pollution exclusion. Rather, the appeal in that case involved the interpretation of a boiler and machinery policy. Second, the court there was struggling with the meaning of "accidental” to determine coverage in the context of "accident” based coverage. In fact, the court stated,
*128 There is no suggestion that the policy was not meant to cover breakage resulting from latent defects in the machinery or from fatigue. The cause is not, nor is the result, one which it is claimed is excluded. It is only contended that the result, in order to be within the coverage of the policy, must have happened instantaneously.
Anderson, at 408.
In the policy at issue there the term "sudden” was used to define, in part, the meaning of the term "accidental”. The term "accidental” was defined as "the sudden and accidental breaking of the bandsaw wheel, or any part thereof, into two or more separate parts while it was in use or connected for use”. Anderson, at 405. In that context the court’s holding that "sudden” did not mean instantaneous makes sense since, as the court pointed out, "the risk to the insurer would be the same, whether a break was instantaneous or began with a crack which developed over a period of time until the final cleavage occurred . . .”. Anderson, at 408.
In contrast, "sudden” is used here in a pollution exclusion. Moreover, "sudden” is not used to define "accidental”. Instead the exclusion employs both the words "sudden” and "accidental” in the conjunctive. The Anderson court did not answer the question of whether "sudden” appearing in the conjunctive with "accidental” would have a temporal meaning. The usefulness of Anderson as an analogy is further limited by the fact that the risk to the insurers in the case of pollution damage is much greater than that caused by the break at issue in Anderson, particularly in this case where the contaminants were released over a 30-year period. Morton, at 72 (acknowledging that the literal language of the pollution exclusion clause will result in "a severe restriction of coverage for pollution-caused property damage”).
The majority next attempts to strengthen its shaky conclusion that "sudden” is ambiguous by stating that insurance policies often use words which have similar meanings. Majority, at 82. However, as the court pointed out in ACL Technologies, "[i]t is one thing for meanings of individual words to overlap. It is quite another to interpret them so *129 that they add nothing in the context in which they are used.” ACL Technologies, at 1787.
Finally, the majority’s conclusion violates all relevant rules of construction. First, insurance policy language must be interpreted in the way it would be understood by the average person. National Union Fire Ins. Co. v. Zuver, 110 Wn.2d 207 , 210, 750 P.2d 1247 (1988). It borders on the incredible to say that the release of contaminants over a 30-year period occurred "suddenly”. Surely the average person would not expect this result.
One of the less remarked aspects in the great war over the pollution exclusion is this: whatever "sudden” means, it does not mean gradual. The ordinary person would never think that something which happened gradually also happened suddenly. The words are antonyms.
ACL Technologies, at 1788.
Second, an insurance provision is ambiguous when it is fairly susceptible to two different interpretations, both of which are reasonable. Stanley v. Safeco Ins. Co. of Am., 109 Wn.2d 738, 741 , 747 P.2d 1091 (1988). "[N]o objectively reasonable policyholder would expect the word 'sudden’ to allow for coverage for gradual pollution. 'Sudden’ never means both 'unexpected and gradual.’ ” ACL Technologies, at 1789.
Finally, an insurance policy should be interpreted so as to give effect to each provision; exclusions should not be read out of policies. McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 734 , 837 P.2d 1000 (1992); Fiscus Motor Freight, Inc. v. Universal Sec. Ins. Co., 53 Wash. App. 777, 787, 770 P.2d 679 , review denied, 113 Wn.2d 1003 (1989). Disregarding the temporal meaning of "sudden” and interpreting it as meaning only "unexpected” when "accidental” also means "unexpected” deprives "sudden” of any significance.
2. The qualified pollution exclusions at issue are not ambiguous as to the relevant polluting event.
The majority concludes that the terms "discharge, dispersal, release or escape” are ambiguous because they can be defined in a manner consistent with the migration of wastes *130 from an earthen pit into groundwater. The majority’s analysis on this point is internally inconsistent and artificial. Moreover, it is not supported by the rulings of the majority of courts which have addressed the issue.
First, the majority acknowledges that the vast majority of courts agree that the focus of the pollution exclusion is on the polluting event, not the resulting damage. Majority, at 88. On this point I agree — the pollution exclusion focuses upon the discharge of contaminants, not on pollution damage. The latter is the focus of the occurrence clause. See Be-atty, at 411.
Despite this conclusion, the majority finds that the critical contaminant release under the qualified pollution exclusion is the discharge to third party property, i.e., the migration into groundwater. This focus on the escape or migration as the polluting event is simply another way of equating the occurrence clause with the exclusion clause since it focuses on the resulting damage.
A particularly cogent discussion appears in Broderick Inv. Co. v. Hartford Accident & Indem. Co., 954 F.2d 601 (10th Cir. 1992).
BIC urges that the term "discharge” may be interpreted reasonably to mean "to let go,” "release from confinement” or "to give outlet to.” The term "discharge” does not stand alone in the policy and must be read in the context of the remainder of the language of the clause; most significantly, the term "discharge” precedes the phrase "into or upon the land.” Even when we employ BIC’s definitions in place of the word "discharge,” we conclude that BIC discharged — or "let go” or "released from confinement” — the waste "into or upon the land.” Because the containment ponds are land, any other interpretation of the phrase "discharge . . . into or upon the land” runs counter to common sense, plain meaning, and ordinary usage.
BIC argues that it intended to contain the waste in the ponds and that the subsequent release or escape that contaminated the groundwater was not intended or expected. With this argument, BIC tries to shift the focus to the second discharge and attempts to graft an intent requirement related to damages onto the unambiguous language of the policy’s exclusion clause. However, whether BIC intended the waste to seep into ground *131 water and cause damage after the initial discharges into the land is not relevant.
(Footnotes omitted.) Broderick, at 607. The cases relied on by the majority likewise focus on resulting damage, not the polluting event. This is particularly clear from the discussion in one of the cases which support the majority’s conclusion:
Since landfills were expected and intended to contain any wastes placed in them, pollutants deposited in a landfill could only cause property damage if there was a "discharge, dispersal, release or escape” of those pollutants from the landfill into the surrounding environment. Thus, the deposit of pollutants into a landfill cannot be the triggering event; rather, the "escape” is the critical inquiry . . ..
Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 373-74 (Minn. Ct. App.), review denied (Mar. 26, 1992). It is precisely that focus which has been rejected by the great majority of courts. 12
Second, in the ordinary case, such as the one before us, there is but one continuous polluting event beginning with the initial dumping. It is an unreasonable stretch to say migration is a polluting event separate from the initial dumping of pollutants into the ground. By employing this artificial distinction the majority insures that coverage will rarely, if ever, be denied since the secondary event, the migration, will not be attributable to an activity of the insured.
More importantly, the overwhelming majority of courts considering the question have held, explicitly or implicitly, *132 that the focus of the pollution exclusion is on the initial disposal into the environment, in this case onto the land. In a relatively early case, Travelers Indem. Co. v. Dingwell, 414 A.2d 220 (Me. 1980), the Supreme Court of Maine recognized that the pollution exclusion relates to the initial polluting event, not to the subsequent migration which causes damage. The Maine high court held that the trial court had erred in relying on allegations that contaminants had "permeated the ground” and "spread in the water table” in determining whether polluting discharges were "sudden and accidental”. The court said that the "behavior of the pollutants in the environment, after release, is irrelevant” to analyzing the pollution exclusion. Travelers, at 224-25.
More recently, the Michigan Supreme Court held that an insured suing for damages resulting from its pesticide spraying activities was not entitled to coverage under the qualified pollution exclusion because, even though the insured had not intended the further dispersal within the environment that caused the property damage, "[i]t is clear that the discharge, dispersal, release, or escape to which both the exclusion and the exception refer is the initial discharge, . . . not the subsequent migration.” Protective Nat’l Ins. Co. v. Woodhaven, 438 Mich. 154, 162 , 476 N.W.2d 374 (1991); see also Broderick, at 607 (focusing on discharge — i.e., placement of wastes into unlined pits; held that "[w]ithout the discharge into the holding ponds, the resulting groundwater contamination simply would not have developed”); Mays v. Transamerica Ins. Co., 103 Or. App. 578, 585 , 799 P.2d 653 (1990) (where insured intended to release pollutants into waste pit over 12 to 13 years, coverage excluded), review denied, 311 Or. 150 (1991); Oklahoma Pub’g Co. v. Kansas City Fire & Marine Ins. Co., 805 F. Supp. 905, 910 (D. Okla. 1992) (routine discharge over years of hazardous waste at waste disposal site is not sudden or accidental).
The facts of another case recently decided by New York’s highest court vividly illustrates the flaw in the majority’s approach. The high court said that the intentional discharge *133 of wastes into a creek that caused contamination downstream was not accidental and, therefore, the exclusion barred coverage for the downstream, unintended property damage. Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66, 73 , 542 N.E.2d 1048 (1989). Had the New York court followed the majority in this case, coverage would not have been excluded because it is the subsequent event of "migration” which is the focus of the pollution exclusion according to the majority. Thus, the initial polluting event, the dumping of pollutants in the creek, would be irrelevant. The majority seeks to avoid this absurd result by stating that the relevant polluting event may be the initial dumping or discharge when an "active polluter” (bad polluter) is involved. Majority, at 90. This distinction between an "intentional polluter” (bad polluter) and the polluter who only discharges contaminants in landfills (good polluter) is artificial and ultimately can only be effectuated by making the relevant polluting event into a moving target. This analysis is not supportable either under the policy language nor any recognized rule of construction and should not be adopted by this court.
3. The initial deposit of contaminants into the Queen City pits was not "accidental”.
Just as the term "sudden” is unambiguous, so too is the term "accidental”. Unless the polluting event is both "sudden” and "accidental” coverage is excluded. In this case, the daily, continuous dumping of pollutants was certainly not accidental.
The majority does not reach this issue because it incorrectly focuses on the second event, the migration of pollutants with its resulting damage. Again, nearly every court considering this issue has found either explicitly or implicitly that the initial, intentional dispersal of contaminants into the environment is not "accidental” and is excluded from coverage. The rationale for this conclusion is persuasively discussed in a recent federal appellate court decision applying New Jersey law. In that case, the court rejected the insured’s argument that pollution damage arising from *134 its intentional disposal of waste sludge at a landfill was not barred from coverage by the pollution exclusion. The court noted that
no evidence was presented to the court below to demonstrate that Triangle did not expect and intend its sludge to be dumped upon the ground at the landfill. The sludge was a normal byproduct of Triangle’s manufacturing operation. The company hired trucks to haul the waste to the Ohio landfill. And Triangle corresponded with persons at the landfill, discussing the liquidity of the semi-solid sludge being dumped at the fill. Given this, we agree with the district court that the open dumping of a sludge onto the ground, particularly when performed as part of a regular business activity, cannot be considered an accidental discharge of the contaminant.
Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1158 (4th Cir.), cert. denied, 113 S. Ct. 78 (1992).
As the New York court in Technicon stated, the pollution exclusion should apply to intentional discharges even where the subsequent dispersal of contaminants could be seen as accidental. Were this not the case, the court said "there would always be potential coverage . . . even where the insured is shown to have deliberately and repeatedly polluted the land, water or air over a long period of time, merely because it cannot be known where the toxic substance will flow or what damage will ultimately result”. Technicon, 141 A.D.2d at 139 . See also New York v. AMRO Realty Corp., 936 F.2d 1420, 1428 (2d Cir. 1991) (the release of hazardous waste upon land or into a watercourse through long term industrial practice is an intentional release into the environment which cannot be considered accidental); Simpson Paper Co. v. Central Nat’l Ins., No. C92-1352C, 7-8 (W.D. Wash. Jan. 20, 1994) (order on defendants’ motion for summary judgment) (discharge of industrial pollutants by permit to Los Angeles County Sanitation District treatment plant excluded as neither "sudden” nor "accidental”); Weber v. IMT Ins. Co., 462 N.W.2d 283, 287 (Iowa 1990) (court need not decide if spillage of waste material on road was sudden since the spill was not accidental and therefore not sudden and accidental under the pollution exclusion); Powers Chemco, Inc. v. Federal Ins. Co., 74 *135 N.Y.2d 910, 911 , 548 N.E.2d 1301 (1989) (intentional disposal of hazardous wastes in pits, with the ultimate pollution of the environment, is not "accidental” as a matter of law under Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66 , 542 N.E.2d 1048 (1989)).
It is also significant that even in cases where the court found "sudden” was ambiguous coverage has nonetheless been denied under the "accidental” language of the pollution exclusion. Harleysville Mut. Ins. Co. v. Sussex Cy., 831 F. Supp. 1111 (D. Del. 1993) (applying Delaware law; concluded that the act of dumping pollutants into a landfill was not accidental and thus coverage was excluded); Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F. Supp. 1406 (D. Del. 1992) (applying Connecticut law the court found that while the term "sudden” is ambiguous the discharge here was intentional and thus fell within the pollution exclusion); Smith v. Hughes Aircraft Co. Corp., 783 F. Supp. 1222 (D. Ariz. 1991) (applying Arizona law the court found that "sudden” would be ambiguous, however disallowed coverage for pollution practices spanning a 20-year period).
4. A consideration of the drafting history in this case is unwarranted.
The majority has unnecessarily and unjustifiably introduced a new rule of insurance construction in order to drag the drafting history from other states into this court’s consideration. To justify this, the majority states that it is considering the drafting history presented in other states, not as extrinsic evidence but, rather, to decide whether another reasonable interpretation of the contract terms exists. The majority is offering a distinction without a difference. The mere fact that other courts have published their consideration of extrinsic evidence, here the drafting history, does not elevate that evidence to law. It is still extrinsic evidence when considered by this court. Moreover, this "new” rule which the majority uses to support its consideration of drafting history, which was neither presented nor considered below, runs contra to insurance law in this *136 state. In Washington, extrinsic evidence is not admissible unless ambiguity is found. Greer v. Northwestern Nat’l Ins. Co., 109 Wn.2d 191, 201 , 743 P.2d 1244 (1987). An ambiguity will not be found unless there are two reasonable constructions of the terms in dispute. Stanley, at 741. The majority here uses extrinsic evidence, the drafting history, to find another reasonable interpretation of contract terms. Extrinsic evidence has never been admitted in this state as an aid to finding ambiguity. The majority is needlessly setting a dangerous precedent.
Conclusion
The routine dumping of wastes over many years is neither sudden nor accidental. When property damage arises from planned discharges conducted as normal business operations, regardless of whether the insured intended the ensuing damage, the discharge cannot be sudden or accidental, unexpected or unintended and the pollution exclusion bars coverage.
Durham and Guy, JJ., concur with Madsen, J.
After modification, further reconsideration denied March 22, 1995.
A total of 17 state courts have considered whether the term "sudden” is ambiguous. The Supreme Courts of Massachusetts, Michigan, Minnesota, Florida, Ohio, North Carolina and New York, as well as appellate courts in California, Oregon, South Carolina, and Utah have concluded that "sudden” has a temporal meaning and that the pollution exclusion is not ambiguous. Furthermore, federal courts applying the law of various states have concluded that under the law of Kansas, New Hampshire, Maine, Kentucky, Pennsylvania, Tennessee, Oklahoma and Texas the term "sudden” has temporal meaning and the pollution exclusion clause is unambiguous. ACL Technologies, Inc. v. Northbrook Property & Cas. Ins. Co., 17 Cal. App. 4th 1773 , 22 Cal. Rptr. 2d 206 (1993); Dimmitt Chevrolet. Inc. v. Southeastern Fid. Ins. Corp., 636 So. 2d 700 (Fla. 1993); Liberty Mut. Ins. Co. v. SCA Servs., Inc., 412 Mass. 330 , 588 N.E.2d 1346 (1992); Upjohn Co. v. New Hampshire Ins. Co., 438 Mich. 197 , 476 N.W.2d 392 (1991); Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368 (Minn. Ct. App.), review denied (Mar. 26, 1992); Petr-All Petroleum Corp. v. Fireman’s Ins. Co., 188 A.D.2d 139 , 593 N.Y.S.2d 693 (1993); Waste Mgt. of Carolinas, Inc. v Peerless Ins. Co., 315 N.C. 688 , 340 S.E.2d 374 (1986); Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St. 3d 657 , 597 N.E.2d 1096 (1992); Mays v. Transamerica Ins. Co., 103 Or. App. 578 , 799 P.2d 653 , review denied, 311 Or. 150 (1990); Greenville Cy. v. Insurance Reserve Fund, 311 S.C. 169 , 427 S.E.2d 913 (Ct. App. 1993); Gridley Assocs., Ltd. v. Transamerica Ins. Co., 828 P.2d 524 (Utah Ct. App. 1992); In re Texas E. Transmission Corp. PCB Contamination Ins. Coverage Litig., 15 F.3d 1249 (3d Cir. 1994); American Motorists Ins. Co. v. General Host Corp., 946 F.2d 1482 (10th Cir.), vacated on other grounds on rehearing, 946 F.2d 1489 (1991); A. Johnson & Co. v. Aetna Cas. & Sur. Co., 933 F.2d 66 (1st Cir. 1991); Great Lks. Container Corp. v. National Union Fire Ins. Co., 727 F.2d 30 (1st Cir. 1984); Gould, Inc. v. CNA, 809 F. Supp. 328 (M.D. Pa. 1992); Oklahoma Pub’g Co. v. Kansas City Fire & Marine Ins. Co., 805 F. Supp. 905 (W.D. Okla. 1992); United States Fid. & Guar. Co. v. Morrison Grain Co., 734 F. Supp. 437 (D. Kan. 1990); United States Fid. & Guar. Co. v. Murray Ohio Mfg. Co., 693 F. Supp. 617 (M.D. Tenn. 1988). In contrast only the Supreme Courts of Colorado, Georgia, Illinois, West Virginia and Wisconsin have found the term "sudden” is ambiguous while only federal courts applying the law of New Jersey, South Dakota, Connecticut, Delaware and Arizona have concluded that "sudden” is ambiguous. Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo. 1991); Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333 , 380 S.E.2d 686 (1989); Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90 , 607 N.E.2d 1204 (1992); Joy Technologies, Inc. v. Liberty Mut. Ins. Co., 187 W. Va. 742 , 421 S.E.2d 493 (1992); Just v. Land Reclamation, Ltd., 155 Wis. 2d 737 , 157 Wis. 2d 507 , 456 N.W.2d 570 (1990); Smith v. Hughes *122 Aircraft Co. Corp., 783 F. Supp. 1222 (D. Ariz. 1991); Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F. Supp. 1406 (D. Del. 1992); Benedictine Sisters of St. Mary’s Hosp. v. St. Paul Fire & Marine Ins. Co., 815 F.2d 1209 (8th Cir. 1987); Harleysville Mut. Ins. Co. v. Sussex Cy., 831 F. Supp. 1111 (D. Del. 1993); Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 817 F. Supp. 1136 (D.N.J. 1993). Moreover, while the cases noted above applying Connecticut, Delaware, and Arizona law have found the term "sudden” to be ambiguous they have denied coverage for pollution damage under the exclusion clause because the discharge was not accidental.
Having found that the term "sudden” is ambiguous, these courts then find that "sudden” means "unexpected” by either construing the ambiguity against the insurer or turning to the drafting history.
It is also interesting to note that the majority gets around this superfluity problem in a novel way later in its opinion when it is faced with the language in another pollution exclusion which excludes coverage for damage to property and cleanup costs "caused by seepage, pollution or contamination” but not where "such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening”. The majority recognizes that refusing to give the term "sudden” temporal meaning renders that term superfluous when used in conjunction with "unexpected”. However, it whisks the concern away by finding that "sudden” is inconsistent with "seepage”, which the majority says, without any cite to authority, does not occur over a short period of time. Majority, at 95.
Prior to citing the passage quoted above, the majority states that its interpretation of the terms discharge, dispersal, release or escape must be made based on the expectation of the average purchaser of insurance who "would expect broad coverage for liability arising from business operations”. Majority, at 78. Again, this focuses on the "occurrence” clause instead of the exclusion clause. Further, it is difficult to believe that the average purchaser of an insurance policy which includes an exclusion for polluting would conclude that the dumping of thousands of barrels of contaminants into earth pits over a 30-year period would be covered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855183. Public record. Not legal advice.