L. Rep. 20,616
CONTINENTAL INSURANCE COMPANIES, Appellee,
v.
NORTHEASTERN PHARMACEUTICAL AND CHEMICAL COMPANY, INC.,
Milton Turkel, Edwin B. Michaels and John W. Lee,
Appellees, State of Missouri,
Intervenor-Appellant.
No. 85-1940.
United States Court of Appeals,
Eighth Circuit.
Submitted Jan. 15, 1986.
Decided Jan. 22, 1987.
Rehearing En Banc Granted March 30, 1987.*
Shelley A. Woods, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri.
Karen Florini, Washington, D.C. for amicus--U.S.
Gary R. Long, Kansas City, Mo., for Continental Ins. Co.
Thomas W. Brunner, Washington, D.C., for amicus American Ins. Association.
William D. Iverson, Washington, D.C., for amicus IBM.
Jerome T. Wolf, Carl H. Helmstetter, James T. Price, Spencer, Fane, Britt & Browne, Kansas City, Mo., for amicus AT&T Technologies, Inc.
Before HEANEY and McMILLIAN, Circuit Judges, and MURPHY,* District Judge.
HEANEY, Circuit Judge.
This appeal raises the question of whether hazardous waste cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Secs. 9601-9657 (1982) (CERCLA) are recoverable under a liability policy that covers "property damage" that "occurs" during the life of the policy, where disposal and environmental contamination took place during the policy period but cleanup costs were incurred later. We reverse the district court's order on Count I of Continental's complaint, affirm its dismissal of the State of Missouri's counterclaim, and hold that state and federal governments suffer "property damage" at the time hazardous wastes are improperly "released" into their environment and that cleanup costs are a recoverable measure of damages for this environmental property damage. We also affirm the district court's dismissal without prejudice of Count II of Continental Insurance Company's complaint relating to coverage for private individuals' personal and property damage due to improper hazardous waste disposal.
I. FACTS.
From 1970 to 1972, the Northeastern Pharmaceutical and Chemical Company (NEPACCO) produced hexachlorophene at a chemical plant in Verona, Missouri. The process produced a variety of wastes, among which was dioxin, a highly toxic chemical. In July, 1971, NEPACCO made arrangements to dispose of at least eighty-five fifty-five-gallon drums of these wastes in a trench on a farm near Verona, Missouri (the "Denny farm" site). When the deteriorated drums were dumped in the trench in July, 1971, a "strong odor" shortly emerged, persisting for several months. United States v. Northeastern Pharm. & Chem. Co.,
During the two-year period from 1970 to 1972 that NEPACCO was in business, it was insured under a Comprehensive General Liability Policy (CGL),2 issued by Continental. Three somewhat different policies were in effect from August 5, 1970, to August 5, 1971; August 5, 1971, to August 5, 1972; and August 5, 1972, to November 5, 1972.3 Each policy requires Continental to:pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage4 to which this insurance applies caused by an occurrence,5 and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage.
All three provide that: "[t]his insurance applies only to bodily injury or property damage which occurs during the policy period."
In 1980, the EPA investigated the Denny farm site and found that the NEPACCO wastes in the trench and underlying soil contained "alarming[ly] high concentrations of dioxin." Id. at 831. It cleaned up the site, and then sought to recover its costs through a lawsuit against NEPACCO and others. United States v. Northeastern Pharm. & Chem. Co.,
On March 7, 1983, a number of former residents of Times Beach and Imperial, Missouri, filed an action against NEPACCO and others which seeks recovery for personal injuries and property damage allegedly caused by the dumping of NEPACCO's wastes at the Minker/Stout/Romaine Creek site and on the streets of Times Beach. Capstick v. Independent Petrochemical Corp., No. 832-0453 (Cir.Ct., City of St. Louis, Mo. filed Mar. 7, 1983) (the "Capstick " suit).
To protect against potential liability arising out of its status as insurance carrier for NEPACCO during the time NEPACCO's hazardous wastes were improperly disposed of, Continental filed this action against NEPACCO and its former officers and directors. Count I seeks a declaration that Continental is under no duty to defend or indemnify NEPACCO for liability arising out of the EPA7 suit. Count II seeks the same declaration with respect to the Capstick suit. On November 14, 1984, Continental moved for summary judgment. NEPACCO and the other defendants failed to enter an appearance or file an answer.8
The State of Missouri was then granted leave to intervene to protect its interests arising out of claims that it had made against NEPACCO and the other defendants in a third hazardous-waste lawsuit filed in the United States District Court for the Eastern District of Missouri. Missouri v. Independent Petrochemical Corp., No. 83-3670 (E.D.Mo. filed Nov. 23, 1983) (the "IPC " suit). The complaint in IPC alleges that NEPACCO, its officers, and others are liable under CERCLA for costs incurred by the state in excavating and removing dioxin-contaminated soil from the Minker/Stout/Romaine Creek site. The state filed an answer to Continental's complaint and a counterclaim alleging that Continental is obligated to indemnify the state for the amount of any judgment imposed on NEPACCO in the underlying IPC lawsuit.
On June 25, 1985, the district court granted summary judgment to Continental on Count I of its complaint (no insurance coverage for the EPA claims), and against the state on its counterclaim (no coverage for the IPC claims). The court reasoned that the cleanup costs sought by the United States and the state in the EPA and IPC suits are not "property damage" as that term is defined in the CGL policiеs and that "no * * * damages were incurred by the government entities during the policies' effective dates" because the policies were only in effect from 1970 to 1972, and the cleanup costs were incurred later. The court also granted Continental's motion to dismiss without prejudice Count II of its complaint (the Capstick claims), stating that "more specific findings of bodily injury and property damage" were needed first. The State of Missouri appeals.9
II. DISCUSSION.
A. EPA and IPC Claims.
The first issue is whether the district court erred in holding that cleanup costs under CERCLA are not "property damage" as defined in the CGL policies.10 Although the district court cited no case and gave no explanation for its holding, Continental and amicus AIA advance two arguments in support.
Continental argues that only the actual owners of the land on which hazardous wastes are improperly disposed of sustain "property damage," and that any injury suffered by governmental entities from the improper disposal is merely an economic injury.11 We disagree.
The Supreme Court of the United States has held that state and federal governments suffer injury to their "quasi-soverеign" interests when pollutants are released into the soil, water, and air within their jurisdiction. See Georgia v. Tennessee Copper Co.,
In Georgia v. Tennessee Copper Co.,
The state owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the state as a private owner is merely a make-weight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.
The Court's discussion of a governmental interest in "title" to all the soil, water, and air within its jurisdiction suggests that the government has a property interest in natural resources. A similar implication arises from Missouri v. Illinois,
A state may care for its own in utilizing the bounties of nature within her borders because it has technical ownership of such bounties or, when ownership is in no one, because the state may for the common good exercise all the authority that technical ownership ordinarily confers.
This conclusion is supported by statements in a wide array of сases and statutes that state and federal governments have property interests in wildlife,13 inter- and intra-state waters,14 and natural resources in general.15 Moreover, state and federal governments have "direct property interests" in public land holdings which may be damaged by environmental contamination.
In light of these extensive statements of governmental property interests in environmental resources, it does not seem unreasonable to assume that an insurance company, providing liability coverage for a chemical producer, would contemplate environmental damage as a form of covered "property damage for which governments may seek recovery." See Lansco, Inc. v. Department of Envtl. Protection,
Finally, all of the cases which have squarely considered Continental's argument have rejected it.16 In Mraz v. American Universal Ins. Co.,
In sum, we agree with the position taken in Mraz, Lansco, and Kutsher's that the improper release of toxic wastes may cause "property damage" not only to the actual owner of the land, water, or air, but also to state and federal governments because of their "interest independent of and behind the titles of its citizens in all the earth and air within [their] domain." Tennessee Copper Co.,
Amicus AIA assumes, at least for purposes of argument, that environmental contamination may cause "property damage" for which state and federal governments may seek relief. However, it argues that while the governments might be able to recover for the diminution in value of environmental resources, cleanup costs themselves are not recoverable. It bases this argument on the language of section 107 of CERCLA which provides:
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or site selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for--
(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.
42 U.S.C. Sec. 9607(a)(4).
A close reading of this section fails to support AIA's argument that only an action under the last subsection, section 9607(a)(4)(C), is an action for "property damage."18 It seems clear to us that, although subsection (C) directly provides for recovery for damage to natural resources, subsections (A) and (B) are also measures of the damages which governmental entities may recoup for hazardous waste damage to natural resources. This conclusion is supported by all of the on-point cases cited by the parties or revealed by our independent research.19 See, e.g., Askew v. American Waterways Operators,
Finally, the language of the CGL policies at issue supports the view that cleanup costs are a measure of recoverable damages for injury to environmental resources. The language of the policies specifically require Continental to "pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * because of property damage." This language suggests that once there is property damage--here, environmental contamination--then the damages that flow from that property damage--here, cleanup costs--are recoverable.21
In sum, the cases, the CGL policy language, the common meaning of "property damage," and section 107 of CERCLA all support the governments' argument that cleanup costs under CERCLA are compensatory damages for "property damage" within the meaning of the CGL policies. Accordingly, we adopt this view.
The remaining issue is whether the district court erred in holding that the governments did not suffer an "occurrence" of property damage during the policy period because, although the improper waste disposal occurred during the policy period, the cleanup costs were not incurred until long after the policies expired.22 We hold that it did and adopt the majority view that environmental damage occurs at the moment that hazardous wastes are improperly released23 into the environment and that a liability policy in effect at the time this damage is caused provides coverage for the subsequently incurred costs of cleaning up the wastes.24 In Mraz,
Quite similar to this line of decisions are cases involving insurance coverage for "progressive diseases" where exposure to a harmful substance occurred during the policy period but the disease or illness developed later after the policy expired. The majority of federal cases on this issue have found coverage by adopting the "exposure,"26 or the "continuous exposure,"27 theory of when injury occurs. These decisions rest on the view that exposure to the dangerous substance at issue during the policy period caused immediate, albeit undеtectable, physical harm which ultimately led to disease or physical impairment after the expiration of the policy period. For example, in Forty-Eight Insulations,
These cases are distinguishable from cases where a negligent act was committed during the policy period but an accident or injury did not occur until after the policy expired.28 For example, if one negligently fails to shovel snow off his sidewalk during the policy period, there is no compensable accident until and if someone slips and injures himself during the policy period. This distinction was discussed in Mueller Fuel Oil Co. v. Insurance Co. of North America,
The tort of negligence is not committed unless and until some damage is done. Therefore, the important time factor in determining insurance coverage where the basis of the claim is negligence, is the time when the damage has been suffered. In a claim based on malicious prosecution the damage begins to flow from the very commencement of the tortious conduct--the making of the criminal complaint. The wrong and damage are practically contemporaneous * * *.
It seems to us that in the case of improper hazardous waste disposal, the wrong and the resulting damage may also be practically contemporaneous.
The decision in Kissel v. Aetna Cas. & Sur. Co.,
Applying these principles, it is clear that the "property damage" proved in the EPA case,
It also follows, however, from our holding on the question of the time of the relevant "property damage" "occurrence," that Continental is not liable to defend or indemnify NEPACCO for liability arising from the IPC suit. The complaint in IPC alleges that in 1971 or 1972, Russell Bliss, pursuant to an agreement with IPC and NEPACCO, transported dioxin-contaminated waste oil from the NEPACCO plant in Verona, Missouri, and spread the contaminated oil on the premises of the Bubbling Springs Stable in Fenton, Missouri. This would be the relevant time of the "property damage" "occurrence" for purposes of cleaning up the Bubbling Springs Stable. However, the IPC complaint does not seek to recover costs for cleaning up the Bubbling Springs Ranch, nor does it seek recovery for the diminution in the value of resources at or around the Bubbling Springs Ranch and its watershed. Instead, the state seeks to recover the costs of cleaning up the Minker/Stout/Romaine Creek site which was contaminated when twenty loads of contaminated fill dirt from the Bubbling Springs Ranch were deposited there in 1974, after the CGL policies had expired. Because the damage at the Minker/Stout/Romaine Creek site first occurred after the last CGL policy's effective date, we find that it would be beyond the reach of the reasoning in Kissel to hold Continental liable for this damage which began after the policy lapsed. Accordingly, we affirm the district court's finding on the state's counterclaim that Continental has no duty to defend or indemnify NEPACCO for potential liability in the pending IPC suit.
B. Capstick Claims.
The State of Missouri contends that the district court erred in dismissing, without prejudice, Count II of Cоntinental's complaint which seeks a declaration of no duty to defend or indemnify NEPACCO in the Capstick lawsuit. The Capstick suit differs in several respects from the EPA and IPC suits. The latter involve governmental cleanup cost recoveries under CERCLA; the former involves claims by private individuals for personal and property damage arising out of improper disposal of NEPACCO's hazardous wastes. We agree with the trial court that resolution of the insurance coverage issues in Capstick requires additional fact finding and analysis, see Independent Petrochemical Corp. v. Aetna Cas. and Sur. Co., Civ. No. 83-3347, (D.D.C., filed Feb. 4, 1986), which may be pursued most effectively in a different proceeding. Accordingly, the district court's decision granting Continental's motion to voluntarily dismiss Count II without prejudice is affirmed.
McMILLIAN, Circuit Judge, concurring in part and dissenting in part.
For the reasons discussed below, I would affirm the order of the district court, although for reasons different than those set forth in its memorandum order. This appeal presents difficult issues the resolution of which will have a substantial effect upon liability insurance cases involving hazardous waste disposal.
I agree with much of the analysis set forth in the majority opinion. Specifically, I agree that Missouri law applies to these insurance policies. Missouri is the state that has the most significant relationship with the comprehensive general liability (CGL) insurance policies at issue. Maj. op. at 1184, note 10. I also agree with the majority that environmental damage is "damage to property" and that the release into the environment of hazardous wastes may cause property damage not only to the actual owners of land, water and air, but also to the quasi-sovereign interests of governmental entities. Maj. op. at 1184-87.
I also agree with the majority, op. at 1184-93, that under Missouri law "the issue of liability under a policy insuring against 'loss' or 'damage' occurring during the policy period is determined by the time when the loss or damage occurs and not by the time of the negligent [or wrongful] act." Hawkeye-Security Insurance Co. v. Iowa National Mutual Insurance Co.,
Given the specific facts in the present case, I further agree that property damage "occurred" in mid-July 1971, at a time within the policy period of the first CGL policy. Maj. op. at 1191. Here, the crucial events--the wrongful act, the release of hazardous wastes into the environment ("property damage") and the "occurrence"--all happened virtually simultaneously. In some hazardous waste disposal cases, the act of disposal may cause the release of hazardous wastes into the environment at some point in the future. For example, the initial disposal may not result in a release of hazardous wastes within the policy period but much later after the policy has lapsed. In the present case, however, the disposal of the hazardous wastes immediately resulted in their release into the environment and, because by definition hazardous wastes are extremely harmful, there was clearly an "occurrence" of "property damage" within the policy period. Here, the geological and hydrological characteristics of the site made it unsuitable for the disposal of hazardous wastes; the hazardous wastes had been stored in drums that at the time of disposal were in a deteriorated condition; the drums were simply buried in an excavated trench; a strong odor emerged shortly thereafter and persisted for several months. Thus, the "occurrence" issue is something of a false issue on these facts.
I do not agree, however, with the majority that "cleanup costs under CERCLA are compensatory damages for 'property damage' within the meaning of the CGL policies." Maj. op. at 1189 (emphasis added). I would hold that under these CGL policies the insurer has no obligation to pay cleanup costs because cleanup costs constitute equitable monetary relief but not legal damages.
"An insuring obligation is a contract, and coverage exists only if assumed by the terms of the policy." Aetna Casualty & Surety Co. v. Hanna,
"Traditionally, courts have found no insurance coverage for the costs of complying with an injunction even in cases where the suits could have been brought for damages." Maryland Casualty Co. v. Armco, Inc.,
In short, I cannot agree that cleanup costs are the equivalent of "damages," Maryland Casualty Co. v. Armco, Inc.,
In United States Aviex Co. v. Travelers Insurance Co.,
I also agree that the insurer has no duty to defend the IPC lawsuit because the property damage occurred in 1974 after the policies lapsed, maj. op. at 1192-1193 and because, as discussed above, cleanup costs are not "damages."
I also agree that the issues in the Capstick lawsuit require additional factfinding and analysis and are therefore unsuitable for summary disposition. Maj. op. at 1193. Because the private individuals in Capstick are seeking damages for personal injury and property damage due to the improper disposal of hazardous wastes and not cleanup costs consistent with the national contingency plan pursuant to CERCLA Sec. 107(a)(4)(B), 42 U.S.C. Sec. 9607(a)(4)(B), I would hold the insurer cannot refuse to defend the Capstick lawsuit for that reason.
Accordingly, I would affirm the order of the district court.
Notes
Order published at
The Honorable DIANA E. MURPHY, United States District Judge for the District of Minnesota, sitting by designation
Times Beach was a town of approximately 2,200 people located twenty-five miles southwest of St. Louis. Soil samples taken there by the EPA in the early 1980's revealed soil dioxin levels in excess of one hundred times the Center for Disease Control's recommended maximum soil dioxin level for residential areas. In February, 1983, the EPA announced that the government would purchase the entire town of Times Beach using $33.7 million from the federal Superfund. The State of Missouri contributed an additional $3.3 million to the buy-out
The drafting history and background of the standard-form CGL policy is discussed in American Home Prods. Corp. v. Liberty Mut. Ins. Co.,
The latter two policies, covering the period August 5, 1971, to November 17, 1972, contain the following "pollution and contamination" exclusion clause:
It is agreed that the 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 or accidental.
The United States Court of Appeals for the First Circuit has held that coverage for damages caused by hazardous wastes improperly disposed of by the plaintiff in the regular course of its business is excluded by the same "pollution exclusion" clause. Great Lakes Container Corp. v. National Union Fire Ins. Co.,
All three policies define "property damage" as follows:
(1) Physical injury or destruction of tangible property which occurs during the policy period, including the loss of use thereof at anytime resulting therefrom,
(2) Loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period * * *.
All three policies define "occurrence" as "an accident, including continuous or repeated exposure to conditions, injury or property damage neither expected nor intended from the standpoint of the insured." Several courts have held that the discharge of hazardous wastes is an "occurrence" within this type of provision where the discharge or the extent of the damage was not expected or intended. See, e.g., Mraz v. American Universal Ins. Co.,
The district court entered judgment in favor of the EPA for $155,171.93. Although the court noted that the stored wastes at the Denny farm site no longer present an imminent and substantial danger to health and environment,
On February 25, 1985, the United States filed a garnishment action seeking to collect from Continental, as NEPACCO's liability insurer, the sums awarded in the underlying EPA suit. United States v. Continental Ins. Co., No. 85-3069-CV-S-4 (W.D.Mo. filed Feb. 25, 1985). The district court initially entered judgment in favor of Continental based on its judgment in the present action, Continental v. NEPACCO, No. 84-5034-CV-S-4 (W.D.Mo. filed June 25, 1985), then granted the United States's motion for reconsideration. Continental then moved for summary judgment, and resolution of this motion has been held in abeyance until the appeal in the EPA suit,
NEPACCO's corporate charter was forfeited by the Delaware Secretary of State in August, 1976. NEPACCO never filed a formal certificate of dissolution, but in 1974, its assets were liquidated and the proceeds distributed to shareholders after payment of outstanding debts. See United States v. Northeastern Pharm. & Chem. Co.,
The United States and Armco, Inc., AT & T Technologies, Inc., FMC Corporation, and International Business Machines Corporation appear as amicus curiae in support of the state. The American Insurance Association (AIA) appears as amicus curiae in favor of Continental
We agree with the district сourt that Missouri law governs the interpretation of the insurance policies at issue because that state has the most significant relation with the negotiation and terms of the insurance contract. Havenfield Corp. v. H.R. Block, Inc.,
Continental cites to Giddings v. Industrial Indemn. Co.,
See also, e.g., State v. Leavitt,
See, e.g., Geer v. Connecticut,
It has been generally stated that interstate navigable waters and their watersheds are "public property of the nation," United States v. Chicago, M., St. P. & P.R. Co.,
See, e.g., Mo. Const., art. 4 Sec. 12 (establishment of department of conservation and Department of Natural Resources); Mo.Ann.Stat. Sec. 67.870-. 910 (Vernon Supp.1986) (open space conservation); Mo.Ann.Stat. Sec. 253.010 (Vernon 1963) (state's interest in "land" includes "every estate, interest and right, legal or equitable, in land or water"); Mo.Ann.Stat. Sec. 256.010 (Vernon 1963) (appointment of state geologist to survey state resources); Mo.Ann.Stat. Sec. 260.435-.550 (Vernon Supp.1986) (state's interest in preventing harm to property and people by abandoned hazardous waste dumps); Clean Air Act, 42 U.S.C.A. Secs. 7401-7642 (1982) (protection of "nation's air resources"); National Environmental Policy Act, 42 U.S.C.A. Secs. 4321-4347 (1982) (protection of "nation's environment"); Federal Water Pollution Control Act, 33 U.S.C. Secs. 1251-1376 (1982) (protection of "nation's waters"); CERCLA, supra (see 42 U.S.C. Sec. 9601(16), which states: " 'natural resources' means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson Fishery Conservation and Management Act [16 U.S.C.A. Sec. 1801 et seq.] any State or local government, or any foreign government."
The two cases cited by Continental are inapposite. In Atlantic City Mun. Util, Auth. v. CIGNA, No. A-1320-84T7 (N.J.Super.Ct.App.Div. Dec. 19, 1985), the court held that costs incurred by a municipal water authority in drilling new wells and adding filtering devices to prevent potential contamination of its wells by nearby hazardous waste dumps are not recoverable under a CGL policy. In Linda Walls, v. Waste Resources Corp., No. 2-83-418 (E.D.Tenn. Oct. 11, 1983), the court adopted a magistrate's report suggesting distinction, for statute of limitations purposes, between suits for recovery of cleanup costs and suits claiming damages for injury to or loss of naturаl resources
For other cases implicitly finding that cleanup costs are recoverable "property damage," see, e.g., Mercury Refining Co. v. Hartford Fire Ins. Co., No. 84-CU-495 (N.D.N.Y. July 19, 1985); Payne v. United States Fid. and Guar. Co.,
The CERCLA claims in the EPA and IPC suits were brought solely under 42 U.S.C. Sec. 9607(a)(4)(A) for cleanup costs
On March 10, 1986, the United States Supreme Court in Exon Corp. v. Robert Hunt, --- U.S. ----,
The Missouri Supreme Court's decisiоn in Jack L. Baker Cos. v. Pasley Mfg. & Distrib. Co.,
The state points out that this distinction between property damage and their compensatory damages is so well established it is set forth in Black's Law Dictionary (4th ed. 1951):
Damage. Loss, injury or deterioration, caused by the negligence, design or accident of one person to another, in respect of the latter's person or property. The word is to be distinguished from its plural,--"damages"--which means a compensation in money for a loss or damage.
Citation to meaning given ordinary language in a respected dictionary is particularly relevant in a case involving the construction of insurance policy terms because of the well-established principle that insurance policy language must be given the meaning that it would convey to an ordinary insured. Robin v. Blue Cross Hospital Service, Inc.,
Additionally, the United States Supreme Court's decision in St. Paul Fire and Marine Ins. Co. v. Barry,
An "occurrence" policy protects the policyholder from liability for any act done while the policy is in effect, whereas a "claims made" policy protects the holder only against claims made during the life of the policy.
Id. at 535,
Under Missouri law, the time of an "occurrence" within the meaning of an indemnity policy is the time the loss or damage was sustained and not the time when the negligent or wrongful act was committed. Hawkeye-Security Ins. Co. v. Iowa Nat'l Mut. Ins. Co.,
CERCLA section 107, 42 U.S.C. Sec. 9607, provides for liability under the Act whenever there is a "release, or a threatened release which causes the incurrence of response costs, of a hazardous substance." 42 U.S.C. Sec. 9601(22) states, in relevant part,
"release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment[.]
However, various other policy provisions and exclusions may exclude coverage, but these issues are not before us on this appeal
See also Shapiro,
See, e.g., Commercial Union Ins. Co. v. Sepco Corp.,
See, e.g., Keene Corp. v. Insurance Co. of North America,
The case which the district court relied on, Kirkham and Michael & Assoc., Inc. v. Travelers Indem. Co.,
We hold that in a cleanup cost recovery case, the date of the insured "occurrence" is the date on which the hazardous wastes were improperly disposed of. In other words, we adopt the "exposure" view of coverage. Accordingly, only the first CGL policy at issue provides сoverage for the damages proved in the EPA case. See, e.g., Hancock Laboratories, Inc.,
See supra note 5, on the "occurrence" question. There is no remaining issue on the "pollution exclusion" clause, however, because the property damage proved in the EPA case occurred during the first CGL policy which does not contain a pollution exclusion clause