Plaintiff appeals from the trial court’s grant of summary disposition to defendant, MCR 2.116(0(10), on plaintiff’s claim for a declaratory judgment that defendant hаd a duty to defend plaintiff under a contract of insurance between plaintiff and defendant. We reverse.
Gayle and Mary Alice Lapе filed a complaint against plaintiff alleging that plaintiff, which operated its business on property adjacent to the Lapes’, had permitted continuous discharge of Trichlorethylene (tce) onto its property, resulting in contamination of the Lapes’ soil, contaminаtion of its well water, and possible physical harm to the Lapes.
When defendant refused to represent plaintiff under plaintiff’s policy of insurance with defendant, plaintiff filed a complaint for a declaratory judgment that defendant had a duty to defend. Defendant answered and filed a motion for summary disposition, contending that the pollution exclusion provision in its policy freed it from any duty to defend. That exclusion, inсluded in the policy and submitted with defendant’s motion, provides:
*510 This insurance does not apply ... to bodily injury or property damage arising out of thе discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gasеs, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body оf water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
Plaintiff countered with its own motion for summary disposition alleging that defendant had a duty to defend under the "sudden and accidental” exception to the рollution exclusion. Plaintiff’s motion was supported by the affidavit of its vice-president averring that since November 19, 1980, plaintiff had disposed of аll tce by state-approved disposal companies. The affiant further claimed that he had no knowledge of prior complаints from authorities or private parties made to plaintiff regarding dumping or spillage from any cause of tce on plaintiff’s propеrty.
The trial court found that the pollution exclusion provision relieved defendant of a duty to defend. The trial court concluded that the Lapes’ allegation that the discharge of tce had been "continuous” precluded a finding that defendant had a duty to defend under the "sudden and accidental” discharge exception to the exclusion.
In
Detroit Edison Co v Michigan Mutual Ins Co,
The duty of the insurer to defend the insured depends upon the allegations in thе complaint of the third party in his or her action against the insured. This duty is not limited to meritorious suits and may even extend to actions which are *511 groundlеss, false, or fraudulent, so long as the allegations against the insured even arguably come within the policy coverage. An insurer has a duty to defend, despitе theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. Dochod v Central Mutual Ins Co,81 Mich App 63 ;264 NW2d 122 (1978). The duty to defend cannot be limited by the precise language of the pleadings. The insurer has 'the duty to look behind the third рarty’s allegations to analyze whether coverage is possible. Shepard Marine Construction Co v Maryland Casualty Co,73 Mich App 62 ;250 NW2d 541 (1976). In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor. 14 Couch on Insurance 2d, § 51:45, p 538. [102 Mich App at 141-142 .]
In the present case, the Lapes’ Count i laid out the factual allegations supporting their claim against the plaintiff:
6. Upon information and belief, the Defendant employed the use of Trichlorethylene, hereinafter referred to as tce, and other toxic chemicals in their ongoing entеrprise.
7. By employing the use of the dangerous chemical, tce, the Defendant owed a duty to the Plaintiffs to exercise due care and caution in the use of the tce and other highly toxic chemicals and the discharge of same.
8. Defendant negligently discharged the tce аnd other highly toxic chemicals onto its property and the tce subsequently encroached upon Plaintiffs’ property.
10. The pollution and contamination of Plaintiffs’ water has been continuous and there is a great likelihood that the contamination and pollution will continue into the future.
*512 The circuit court judge found that the Lapes’ complaint alleged "general dumping by usage.” Because there was no allegation or evidence that there was "sudden or accidental dumping,” the court determined defendant had no duty to defend.
We find that the circuit court failed to distinguish between the frequency of acts which resulted in the release of contaminants and plaintiff’s knowledge or notice of the release of pollutants as a result of those acts. The Lapes did not specify in their complaint how the toxic wastes entered the ground. There may have been either intentional dumping or burial, unintentional spills or leaks from inadequate containers, or othеr accidents. The allegations in Count i are couched in general terms and encompass unintentional release into the ground.
The pollution exclusion focuses on the release of pollutants:
This insuranсe does not apply ... to bodily injury or property damage arising out of the discharge, dispersal, release or escape . . . into or upon land,. . .; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
The circuit court erred in finding that the allegation of "continuous” negligent dischаrge of waste onto Jonesville’s property took Count i of the Lapes’ complaint out of defendant’s exception for "sudden аnd accidental” release. It is possible that the releases could have been sudden, i.e., unexpected, and accidental, i.е., unintended, and thus outside the exclusion. Plaintiff’s affiant swore that plaintiff had no knowledge of prior complaints regarding dumping or spillage.
The fact that a third party complainant has
*513
drafted his complaint in general terms should not work to the detriment of an insured. A defendant has no power to amend a complaint which contаins an incomplete statement of facts. Whether a defendant can obtain a defense from his insurer must depend not on the capriсe of the third party’s draftsmanship, nor the limits of his knowledge, but on a potential shown in the complaint that the facts ultimately proved comе within the coverage.
Detroit Edison, supra.
It is the
insurer’s
duty to look behind the third party’s allegations to analyze whether coverage is possible.
Id.
See, e.g.,
Kangas v Aetna Casualty & Surety Co,
Because the Lapes’ complaint against plaintiff contained allegations which could support a recovery covered by the policy, it was the duty of defendant to undertake the defense until it could confine the claim to a recovery that the policy did not cover. Summary dispоsition in favor of defendant should not have been granted.
The motion for summary disposition filed by plaintiff should have been granted and the matter is reversed and remanded for entry of an order accordingly.