146 A.D.2d 337 | N.Y. App. Div. | 1989
OPINION OF THE COURT
Plaintiff commenced this declaratory judgment action against defendants based on their failure to defend or indemnify plaintiff in a Federal court action instituted against it by residents in the area nearby one of plaintiffs landfills, as well as in a subsequent State administrative proceeding. Both the Federal action and the State proceeding concerned plaintiff’s operation of the landfill. Plaintiff had operated the landfill from 1970 until November 1984 when it was closed. The complaint in the Federal action alleged, inter alia, that the dumping of chemical and industrial wastes at the landfill during the 1970s had contaminated the soils and groundwater in the surrounding area resulting in personal injuries and property damages. The administrative proceeding, which was commenced by the State Department of Environmental Conservation (hereinafter DEC), claimed that the landfill was an inactive hazardous waste site which necessitated cleanup.
Plaintiff notified defendants of both matters. Defendants had all insured plaintiff at various times between 1970 and 1984. Defendants Aetna Casualty & Surety Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, were primary insurance carriers while the remaining defendants were excess umbrella carriers. None provided plaintiff with a defense to either the Federal action or the DEC proceeding. After commencing this action, plaintiff moved for partial summary judgment claiming, inter alia, that defendants had breached their duty to defend and indemnify plaintiff. In opposing the motion, defendants argued that the alleged discharge of pollutants was not an "occurrence” within the meaning of the insurance policies, that the "pollution exclusion” clause of the policies excluded coverage and that the DEC proceeding was not a "suit” seeking "damages” as those terms were defined by the policies.
In denying plaintiffs motion, Supreme Court determined, inter alia, that with respect to the Federal action, there were issues of fact present as to whether there had been an "occur
We turn first to the question of whether defendants had a duty to defend or indemnify plaintiff in the Federal action. The insurance policies in question define an "occurrence” as: "an accident, including continual or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”
It is true that whenever a complaint alleges facts and circumstances which would, if proven, fall within the risk covered by the policy, an insurer is obligated to provide a defense to the insured (see, Niagara County v Utica Mut. Ins. Co., 80 AD2d 415, 420, lv dismissed 54 NY2d 608, 831). Here, however, the complaint fails to allege any facts which support plaintiff’s contention that the consequences of its dumping were not expected or intended. Although the complaint in the Federal action charges plaintiff with permitting the discharge of wastes from the landfill in a "negligent and careless manner”, it alleges that plaintiff "knew, or should have known, that the manner in which these industrial wastes * * * were disposed of * * * would result in their release into the environment”. It also alleges that the discharges occurred over a lengthy period of time, from 1970 until the site’s closure in 1984. Given the factual allegations in the complaint, it cannot be said that it alleges that the consequences of plaintiff’s pollution were not intended or expected.
We also point out that it has been stated that personal injuries or property damages are expected if the actor knew or should have known there was a substantial probability that a certain result would take place (Auto-Owners Ins. Co. v Jensen,
Even if we were to accept that there were questions of fact as to whether there was an "occurrence”, we would still find no duty to defend or indemnify on defendants’ parts based on the pollution exclusion clauses within the policies. Under these clauses, no insurance is provided for: “bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors * * * waste materials or other irritants, contaminants or pollutants into or upon land * * * but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental” (emphasis supplied).
To conclude, the complaint in the Federal action does not allege a sudden or accidental discharge but rather a longstanding period of knowing and continuous discharges. Given these allegations and the facts of this case, the discharges cannot be considered "sudden and accidental”. Therefore, defendants were under no duty to defend or indemnify plaintiff in the Federal action and summary judgment on this question should be granted in their favor.
As to the DEC proceeding, Supreme Court determined that defendants were not required to defend or indemnify plaintiff since the proceeding was not a "suit” seeking "damages”. While we agree that defendants were not obligated to defend or indemnify plaintiff in the DEC proceeding, it is not necessary to decide whether it was a suit or whether it sought damages. In our view, since the basis for the administrative
Given the above conclusions, it is unnecessary to address the remaining issues raised by plaintiff.
Mahoney, P. J., Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
Order modified, on the law, without costs, by granting defendants summary judgment and declaring that they had no duty to defend or indemnify plaintiff in connection with the action entitled Hills v County of Broome (US Dist Ct, ND NY, CIV 84-CV-1033) or in connection with the proceeding before the State Department of Environmental Conservation, and, as so modified, affirmed.
. All of the policies’ definitions of an occurrence were, with some minor variations, essentially the same.
. We note that while defendants did not appeal Supreme Court’s decision, nor did they separately move for summary judgment, we nevertheless award them summary judgment as authorized by CPLR 3212 (b).
. The language of the pollution exclusion clauses in each of the policies is essentially the same with only minor variations.