Quincy Mutual Fire Insurance v. Borough of Bellmawr

by Attorney on a schedule to be established Office Ethics Ethics, year further Attorney period of one and until the for a Court; and it is further Order of participate in respondent continue to shall

ORDERED program approved Anonymous or a similar Alcoholics satisfactory proof of his Attorney Ethics and shall submit Office Ethics, Attorney effective immediate- participation to the Office of Court; and it further ly further of the and until the Order matter made a that the entire record of this be ORDERED attorney at law of this part respondent’s file as an permanent State; further and it is Disciplinary Over- respondent reimburse

ORDERED costs incurred sight appropriate administrative Committee prosecution this matter. COMPANY, PLAINTIFF- FIRE INSURANCE MUTUAL QUINCY BELLMAWR, APPELLANT, A OF MUNICI v. THE BOROUGH JERSEY, THE OF NEW OF STATE PAL CORPORATION MARINCO, INC., COMPANY, HARLEYSVILLE INSURANCE IN FUND AND ABC JOINT INSURANCE CAMDEN COUNTY (3-100), DEFENDANTS, AND CENTU SURANCE COMPANIES COMPANIES CIGNA RY INDEMNITY COMPANY F/K/A F/K/A AMERICA, DEFEN OF NORTH THE INSURANCE COMPANY DANT-RESPONDENT. January Argued 2002 Decided June argued appellant (Methfessel Fredric Paul Gallin the cause Werbel, attorneys). & (White

Guy argued respondent A. Cellucci the cause for Williams, Cellucci, attorneys; B. Mr. Patricia Santelle and Mi- briefs). DiFebbo, chael E. on the curiae, F. on of amici

Gita Rothschild submitted brief behalf Products, Inc., Specialty Company, Electric International General Wires, Inc., East, Alloy R & F & Vreeland Inc. and Anderson (McCarter attorneys; Holdings, English, Inc. Alissa N.J.C. & Weisman, Pyrich, H. Gregory H. Horowitz and Steven on brief). opinion

The of the Court was delivered STEIN, J. appeal important relating

This raises two issues to environmen- First, pollution liability. the “contin- tal we must determine under policy in trigger theory” liability whether an insurance uous Borough (Borough) deposit- effect at the time the of Bellmawr was ing provides coverage resulting in a landfill for environmen- waste Borough. Although pollution against tal claims the trial reveals that contaminants from the landfill could not have record surrounding groundwater begun dispersed into the until be (Century) policy expired, Century Indemnity Company’s had after (Quincy) Company contends Quincy Fire Insurance Mutual Borough deposited Century’s policy implicated is because the Century’s policy was in the landfill while hazardous waste effect.

Second, appropriate allocation of again must examine the we policies triggered coverage among the carriers whose have been theory.” Quincy argues if under the “continuous liability Century’s policy implicated proportionate share of its trigger theory” determined based under the “continuous should be years Century maintains on the number of it was on the risk. responsibility days the number of it was on that its should reflect is, risk, Borough began dumping until from the time the policy expired. time its Quincy solely responsible for The trial court concluded that was Borough liability resulting indemnifying the from the contami nation, thereby rejecting Quincy’s argument that the act of dis an “occur charging hazardous waste into the landfill constituted Century’s policy. Appellate Division affirmed. rence” under Century’s The court also noted that if it had determined that policy implicated appropriate allocation of would days years on on the risk than on the risk. be based rather Bellmawr, Quincy Borough Mutual Fire Ins. v. Co. (2001). granted 403 n. We (2001). certification, 169 N.J. 782A.2d 426 I (Landfill), Deptford, The Helen Kramer Landfill located West Jersey, In operated approximately New 1963 until 1981. 1978, April Borough approved appropriate the Landfill as an site, 1981, disposal May January until trash and from Borough deposited municipal Bor- waste into the Landfill. The ough attempt segregate pollutants harmful from the made no deposited facility. municipal trash that was in the 1981, complaints registered relating In after were to the Land- (EPA) fill, Agency the Environmental Protection revoked the registration Jersey Landfill’s a and New court ordered its closure. Investigation Feasibility Study An extensive Remedial con- by presence ducted the EPA between 1983 and 1985 revealed the soil, ground of hazardous chemicals in the surface waters and 8, 1983, September waters at the Landfill. On the Landfill was List, placed Superfund on the National Priorities list of threatening nation’s pursu- most hazardous waste sites established Comprehensive Response ant to the Environmental Control and 9605(a). (CERCLA), Liability later, § years Act 42 U.S.C.A. Two 1985, September EPA ordered a series of remedial actions up to clean the contamination that had emanated from the Land- fill. against

In the EPA commenced a lawsuit the hundreds of defendants, party including Borough, defendants and third allegedly had contributed to the contamination of the Kramer Landfill, response to recover all and remedial costs. United Kramer, (D.N.J.1991). v. F.Supp. States In after negotiations, Borough extended and several other defendants third-party agreed by defendants to settle with the EPA paying five-year period, million over a which would contribute $95 approximately cleanup to the million costs incurred $123 Borough’s United States The Government. financial contribution $449,036.39. agreement to those costs under the settlement totaled Borough comprehensive general liability The maintained insur- (CGL) policies principal during ance with two insurance carriers depositing municipal the time it was waste into the Landfill— Century plaintiff Quincy. Borough defendant The also main- policies during tained CGL with several other insurance carriers cleanup place. Century policy the time the took effect Quincy policies from June 1977 until June 1978 and the 18,1978 18,1981. were in effect from June until June Borough declaratory judgment filed a action against Quincy, Century Harleys- its insurance carriers and the Harleysville (Harleysville). was dis- Company

ville Insurance Thereafter, Quincy was ordered from the lawsuit 1993. missed Landfill, any liability relating to the indemnify Borough for Quincy expenses, counsel fees and costs. including litigation agreement stating that Century subsequently into an entered Quincy pay Borough’s defense costs but Century and would pursue the allocation of indemnifica- that the carriers later could between them. tion costs declaratory judg- Quincy seeking a filed suit October pursuant determining respective liabilities to the insur-

ment by Quincy insurance carriers. With policies ance issued and other Century, Quincy’s against exception claims the other insur- trial, During ensuing non-jury Ralph Dr. ers were dismissed. Century expert proce- as an landfill Lee Steiner testified operations. Dr. was familiar with the Landfill dures and Steiner inspected in the 1970’s. Dr. he had it several times because leachate, passes though liquid testified about Steiner He testified that because the Kramer contaminated material. unlined, “sponge” like a rather than a vessel Landfill was it acted also that leachate could have been or a tank. Dr. Steiner testified discharged only its reached “field from the Landfill when waste liquid a can capacity,” which is the maximum amount of landfill liquid seeps through the and contaminates the hold before bottom calculations, including groundwater. Based on Dr. anal- Steiner’s landfill, ysis height of the it would of available rainfall data and days approximately have taken 185 to 200 from the time capacity. Borough began dumping for the Landfill to reach field Therefore, possible Dr. testified that it was not for waste Steiner 1,May Borough began depositing deposited on the date the Landfill, generate groundwa- in the waste contamination Quincy Dr. ter did rebut Steiner’s before June testimony. Century, in favor of

The trial court resolved the issue finding Quincy contribution for the Bor- was not entitled to Owens-Illinois, liability. Relying Inc. ough’s environmental on v. Co., (1994) United Insurance 138 N.J. and Astro Corp. Pak v. Fireman’s Fund Insurance 284 N.J.Super. (App.Div.1995), the trial court concluded that the property damage necessary trigger coverage to under a CGL policy occurs not deposited when waste is in a landfill but when escapes leachate groundwater. from it and contaminates the Therefore, based on undisputed testimony Dr. Steiner’s that the groundwater by could not have been Borough’s contaminated waste approximately days until Borough after the began depositing Landfill, waste in the Kramer the court held that Quincy’s policy alone in damage was effect when the occurred. published opinion

In a Appellate Division affirmed the trial disposition court’s held that the “continuous of cover age” liability groundwater for from began contamination when the groundwater leachate reached the Borough and not when the dumped thereby Century its waste. It liability absolved policy because only its was in effect at the time of the initial dumping municipal of Quincy, supra, waste. rejected 769 A.2d Quincy’s 1053. The court argument also Century’s if policy implicated, Century’s proportionate was liability equal

share of twenty-five percent would of the total policy because its was in years effect for one of the four Instead, question. appropriate the court found that the allocation days coverage. would be based on of n. 769 A. 2d Dissenting, Judge applied trig Wecker also ger theory but coverage concluded that the initial was Borough’s dumping beginning of toxic waste in the Landfill April 1978.

II A general, policies resulting only insurance cover losses place from “occurrences” that during policy period. take Century policy that Borough began effect at the time the accident, including injurious

dumping as “an defines occurrence conditions, results, exposure during policy period, in which personal injury property damage expected nor intended or neither (The standpoint does reflect from the of the insured.” record “occurrence”). type Quincy’s policy policy That how defined general language frequently principle and reflects the used covered, reasonably expect “the to be and the insured would reasonably expect pay, or insurer would policy assuming occurring during period, all other conditions Howard, precedent David have been satisfied.” J. Trigger” Liability: Application to Waste “Continuous Toxic “Occurrences”, Impact Cases and on the Number 22 Tort & (1987). Therefore, Ins. L.J. when an insured has been time, policies period covered several over relevant appropriate trigger coverage, identifying the or when an occur- place, determining rence took will critical which insurer is be damages Litigation relating for liable the that have accrued. appropriate trigger coverage the of results from the fact that ” ‘trigger.’ polices [generally] insurance “do not refer to a Owens- Illinois, 447, Instead, trigger supra, 138 N.J. at 650 A.2d 974. is “ a used or shorthand term to describe ‘the event events that policy under the terms of the determines a insurance whether ” policy respond given in a must a claim set of circumstances.’ Ibid, Fram, (quoting Trigger Coverage Robert D. End Game: of Injury Litigation, in the Decade Latent in Third CGL 10th of Insurance, Excess, Coverage Disputes Annual and Reinsurance Admin, (PLI Litig. & Practice Course Handbook Series No. 1993)). 454, conceptualized, trigger concept “As so the is not rather, designed coverage; gatekeeper, a to determine it acts as matching particular particular periods with of claims time and particular Fischer, policies.” hence M. insurance James Insur Coverage Exposure ance Mass Tort The Debate Claims: Over for Rule, (1997). Trigger Appropriate the 45 Drake L.Rev. damage triggers In environmental contamination cases the Instead, a single often cannot be linked to event. damage usually begin, develop is attributable to and events Therefore, intensify period damage over a sustained of time. ‘triggered’ along has “‘occurred’ or been a timeline continuous during policies which several successive issued to the insured were Hickman, Mary DeYoung in R. R. effect.” & William Allocation Cleanup Liability Environmental Between Insur- Successive (1990). ers, Ky. 17 N. L.Rev. apply determining in Courts various theories when has trigger policies occurred so as to insurance under CGL in the context of cases. environmental contamination toxic tort manifestation, exposure, injury-in-fact, Those include the con trigger theory,” trig “exposure tinuous theories. Under the place gering exposure occurrence on to the takes “the date Fischer, injury producing agent.” supra, 45 Drake L.Rev. at 643. “injury theory, “if policy triggered only Under the is fact” actually injured period.” during policy claimant was Id. theory,” policy 650 A.2d 974. Under the “manifestation reasonably triggered injury apparent “when the became known or Finally, to the claimant.” Id. at 650 A.2d 974. the “continu theory” during provides policies ous that “all effect trigger period, during period expo for aggregate example, fact, may on sure or are activated and be called respond to a loss.” 650 A .2d974. America, Corp. In v. F.2d Keene Insurance Co. North (D.C.Cir.1981), District of Circuit Columbia Court apply theory

Appeals was the first court to determining coverage claims. asbestos-related addition injury, manifestation the court to the of asbestos-related held exposure expo- “coverage triggered both is also inhalation sure in residence.” Id. at 1045. The court stated further: injury that for which Inhalation asbestos is an “occurrence” causes Keene may

be held hable. The the insurers be liable arises may solely possibility injurious at which because there is a of time between the process period point injury during began at In this case, and which manifests itself. point injury among who with interim of latent had worked period, people existence degree a asbestos became with substantial and certainly. predictable it was discovered that past attendant became because precisely predictable 418 injurious in for which Keene were to have set motion processes

occurrences likely liable. be held could [Id. 1046.] jurisdictions Corp., many Subsequent to in Keene the decision theory in and applied trigger have both asbestos continuous Ray v. See Zurich Ins. Co. environmental contamination cases. (Ill.1987) 684, mark, 23, 112 514 N.E.2d 150 118 Ill.2d Ill.Dec. theory personal injury (applying trigger to asbestos continuous claims); Corp., v. 662 Fireman’s Fund Ins. Co. Ex-Cell-O 71, (E.D.Mich.1987)(reeognizing similarity 76 between F.Supp. holding claims hazardous waste claims and asbestos theory implicates trigger exposure “each of the envi continuous County pollutant”); to a New Castle v. Continental Cas. ronment Co., 800, (D.Del.1989), ajfd. F.Supp. rev’d part 725 812 (3d Cir.l992)(concluding pollution part, F.2d in leachate 970 1267 injurious may ‘injury’ process case that “the entire constitute Co., policies”); Harleysville Mutual under the terms of the Ins. 1111, County, 1124 (D.Del.1993)(finding Inc. F.Supp. v. Sussex 831 leaching adjacent property” pollutants from a landfill “slow progressive injury requiring trig use of continuous constitutes ger theory); Fidelity v. Northern States Power Co. Cas. Co. York, (Minn.l994)(holding groundwa New 523 N.W.2d process property ter contamination is “continuous which evenly period damage is distributed over the of time from the first triggered policy”); end of last United contamination Co., Gypsum Ill.App v. Admiral Ins. .3d States Co. (Ill.App.Ct.1994)(applying Ill.Dec. 643 N.E.2d con trigger theory property damage tinuous to asbestos-related claims); GenCorp, F.Supp.2d v. Inc. AIU Ins. (N.D.Ohio 2000)(holding applicable that continuous will be when environmental contamination claimant is able show that asbestosis, basis); damage, continuing like on See also occurred (“Courts Howard, supra, 22 Tort & Ins. L.J. at 632-33 faced with likely setting in the ... determinations toxic waste are adopt exposure, or theories manifestation continuous test, ‘single point than a time’ with those courts intent rather

419 upon maximizing coverage greatest possible opting the extent trigger approach.”). for the continuous Owens-Illinois, 449-51, supra, N.J. at 138 650 A.2d 974 we applied trigger theory coverage of to the asbestos- personal injury related property and at claims issue. Although general we did not disturb the rule “the time of the meaning indemnity an occurrence of accident within the of an policy is wrongful not the time the act is committed but the time complaining actually damaged,” 452, party when at id. 650 (citing 974 A.2d & Accident Indem. Co. v. Aetna Hartford Life Co., 18, (1984)), and Cas. Ins. 98 A.2d N.J. 402 we held that in personal injury required damage asbestos-related cases the occurs from the time asbestos fibers are inhaled continues until including disease, the manifestation of an asbestos-related id. at 454, rejected A argument by 650 .2d 974. We also advanced companies the defendant insurance that the record did contain testimony sufficient medical to establish that of inhalation asbestos immediately damage, recognizing causes tissue both trial “ expertise court’s in asbestos-induced disease cases ‘over ” “ whelming weight authority’ acknowledging ‘oc ” lungs.’ curs when asbestos is inhaled and retained 454, Mitchell, (quoting Lloyd 650 A .2d 974 E. Maryland Inc. v. 44, 469, (Md.1991)). 324 Md. Cos. 595 A.2d We contrast ed that solid medical foundation in Hartford, record a case involving drug injuries resulting manufacturer’s ingestion drugs, one of plaintiff its had “failed where any offer evidence that medication to the child administered any damage had caused her before the Hartford took 453, effect.” Id. at 650 A.2d 974. compelled important decision in

Our Owens-Illinois was considerations, public policy including adapt the need to our tort peculiarities mass-exposure law the recog tort cases. We previously nized that the Court had adapted the law to “the uncertainties medical causation.” Id. at Jackson, (citing Ayers Township v. 106 N.J. 525 A.2d (1987)). example, Ayers, supra, N.J. For involving personal injury claims from water A .2d a case contamination, “mass-exposure cases had held that toxic-tort we present litigation” tort public interests not conventional involve “justify judicial even the risk of disease is that intervention when therefore, concluded, trigger the problematic.” that continuous We public the theory would better suited to address interest be enhancing for environmental dam available insurance ages give opportunity the to channel the and would courts “better into remediation of environmental harms.” available resources 480, Owens-Illinois, A.2d supra, 138 N.J. at 650 Although dealing primarily with in Owens-Illinois we were injuries acknowledged personal exposure, related to asbestos we theory environmental applicability the of the continuous “[pjroperty-damage are contamination cases. noted that cases We exposure toxic analogous to the contraction of disease from “ not, damage property and is substances like asbestos” that ‘while disease, course, many an insidious of the same considerations ” 455, apply.’ (quoting Id. A.2d Lac D'Amiante Du at Quebec, F.Supp. Ltee. American Home Assurance v. (D.N.J.1985)). held that “claims of We then asbestos- discovery property damage through from or related installation (the injurious policies process) the on the risk remediation at throughout period.” Id. 650 A.2d 974. We concluded by observing progressive damage that “when indivisible or injurious exposure conditions for which civil liabili results ty may reasonably may imposed, progressive be treat the courts years damage a injury or as an occurrence within each of the policy.” CGL 650A.2d 974. Pak, case supra,

Astro 665 A.2d 1113 a involving pollution resulting environmental claims from landfill contamination, factually case hand. somewhat similar case, Appellate applied In hold Division Owens-Illinois to resulting damage triggered cover from landfill contamination age disposal opera- policies. under two successive CGL Edison, tions at Kin Jersey Buc Landfill New were termi- nated it after was discovered that leachate from the landfill was

contaminating adjoining Raritan River. The occurred despite the fact that supposedly the landfill was constructed with a impervious barrier prevent that was intended to contamination of surrounding land and Pak Corporation water. Astro had discharged hazardous wastes in the landfill between 1973 and Pak, 1976. Astro brought by a defendant in an action the owner operator landfill, against of the landfill sought users of the declaratory judgment to determine respective of two insurers, principal of its Company the Fireman’s Fund Insurance Company. Hartford Insurance applied trigger theory The court to determine whether Hartford policies Fireman’s Fund liable were property damage resulting pollution from the of Kin the Buc Landfill. The court observed that “Astro Pak’s actions constituted possible pollution only of because the defective nature the ‘pollution’ landfill. The offending escape by was the caused this defect, placing pollutants not the of the into the landfill.” Id. at compared 650 A. 2d 974. The court leakage the from a “presumably impervious accept landfill the licensed State to pollutants” leakage from above-the-ground an enclosed or in- tank, the-ground and observed that both “would instances it be say pollution difficult to that had been caused time” each deposited material is inside. Ibid. analysis, rejected

Based that on the court claim Hartford’s that policies, closure, its which took effect after the were landfill’s implicated because the manifestation of could not have stopped occurred after the date of closure and Astro after Pak facility. depositing pollutants in the that The court found “the progression surrounding slow contaminants into the [the] land during policy period. and water continued” Hartford’s Moreover, A. 2d 974. the court found the Fireman’s policy implicated Fund’s deposited because Astro Pak waste throughout three-year policy period escape the entire “when the EPA, not to Astro was known to but

pollutants from the landfill A. The court stated further that the at 650 2d 974. Pak.” Id. “[t]he pollution after the landfill’s closure and that continued sought thus oc property damage for which indemnification policy periods, though even Astro curred within both insurers’ may preceded have deposit pollutants of the Hartford’s Pak’s conclusion, by “fo policies.” Ibid. In the court determined trial cusing] discharge” landfill the on leachate correctly liability imposed had on both Hartford and the court Ibid. Fireman’s Fund. Carter-Wallace,

In Inc. v. Admiral Insurance N.J. (1998), expressly applied this Court the continuous 712 A.2d theory involving property damage resulting from in a case Inc., a manufac- the contamination of landfill. Carter Wallace pharmaceutical products, was a named turer of consumer respon- brought by against parties defendant in a lawsuit the EPA generating the waste that contaminated the Lone Pine sible for County, Jersey. Eventually, Carter Landfill Monmouth New clean-up. part took Carter-Wallace’s Wallace One insurers, Company, cov- the Commercial Union Insurance denied erage second-layer policy. opinion, In its under its excess analysis proper prior regarding on its alloca- Court elaborated theory implicates tion of when Pak, multiple policies. Citing to insurance Astro Court also acknowledged reasoning in applied Owens-Illinois property damage.” “progressive environmental Id.

A.2d 1116. pollution involving environmental and toxic-tort other cases claims, Jersey consistently

property damage New courts have liability coverage. applied trigger rule determine Co., See United States Mineral Products Co. v. American Ins. 348 526, 550, extensively N.J.Super. (App.Div.2002)(citing 792 A.2d 500 supporting “proposi- from Owens-Illinois and Carter-Wallace damages tion that losses in an case must be treated environmental by comprehen- a periods as an occurrence each of covered

423 general liability policy”); sive Williams v. Port Authority New Jersey, 549, 556, York and New N.J.Super. 345 786 A.2d 114 (App.Div.2001)(applying reasoning in holding Owens-Illinois and “ ‘injury during phase occurs each of environmental contami (defined exposure, nation exposure in residence pro as further gression exposure ceased), even after has and manifesta ” tion of apply disease’ trigger theory continuous to worker’s compensation exposure case for substancesXquoting to toxic Ow ens-Illinois, supra, 451, 974); 138 N.J. at 650 A.2d Universal- Co., Rundle Corp. v. 223, Commercial Union Ins. N.J.Super. 319 243-44, (App.Div.1999), denied, 725 A.2d 76 161 N.J. certif. 735 A.2d 574 (1999)(using trigger theory continuous to determine respective liability resulting clean-up from relating costs to soil groundwater contamination); Sayre v. Ins. Co. North 209, 211-12, Amer. N.J.Super. 701 A.2d (App.Div.l997)(affirming trial court’s trigger use of continuous liability analysis progressive injury resulting indivisible environmental cleanup site); contamination and manufacturing Gottlieb v. Newark Ins. N.J.Super. (App.Div.l990)(holding theory “continuous reflects the Jersey” law of allowing plaintiffs New recovery to seek for chemi poisoning cal claims under policies). successive Aetna Cas. & Cf. Inc., Surety Ply Co. v. Gem Indus. A.2d (App.Div.2001)(finding that “the record before us does require finding trigger’ ‘progressive a ‘continuous or injury1 commencing upon allegedly installation” of defective fire wood). retardant

B Despite many jurisdictions the fact that applied have the contin- theory uous to asbestos claims and hazardous waste claims, among jurisdictions no consensus those regarding exists scope or the “injurious commencement of process” covered theory. under the appeal, pinpointed Relevant to this courts have 424 triggering that set the continuous initial events off

different theory. trigger triggering jurisdictions have held that the initial event

Some Co., injury-in-faet. v. GenCorp, In Inc. AIU Insurance should be (N.D.Ohio 2000), plaintiff brought a F.Supp.2d the declar 104 740 judgment against atory action its insurers to recover costs or long-term disposal for associated with the of indemnification costs plaintiffs waste at several the industrial facilities. industrial trial, requested the preparing parties While for court provide guidance trigger regarding appropriate some for determining coverage. opinion The issued an that held that court theory apply plaintiff if trigger would was able damage, property continuous but also held that demonstrate injury-in-fact theory the initial would be as under exposure. mere Id. The opposed to at 749. court’s directive was plaintiff faced “with an based on fact that injury.” proving point unreasonable task initial Ibid. Builders, Co., Casualty Surety Harden Inc. Aetna Joe v. (S.C.1997), S.C. 486 S.E.2d South Carolina Su preme replied question Court to a federal district court’s certified regarding appropriate trigger coverage when defective progressive property construction results in and continuous dam age. plaintiff payment sought contractor under subcontrac policy. “coverage triggered tor’s insurance The court held that injury-in-fact continuously at the time of an thereafter coverage policies injury- allow under all in effect from the time during progressive damage.” in-fact See also Co., Lincoln Electric v. St. Paul Fire and Marine Ins. Co. (6th Cir.2000)(holding dispute F.3d over personal welding relating claims fumes asbestos exposure exposure presumably would defendant in policy remanding surer’s but case to allow defendant to rebut this presumption injury-in-fact); with evidence Sentinel Ins. Ltd. v. First Ins. 76 Hawai‘i 875 P.2d Co. of Hawai‘i (Haw.1994)(remanding dispute appropriate trigger for over third- party liability relating large apartment water infiltration at complex apply injury-in-fact theory with order except to in situa- “injury-in-fact continuously tion where period occurs over a cov- by policies, ered different apportionment insurers or and actual of determine”). injury impossible the is difficult or to jurisdictions closely reasoning Some follow the in cases like Corporation Keene exposure and have included initial in the “injurious process” applying trigger theory when to environmental contamination claims. In Chemical Leaman Tank Lines, Co., (3d Inc. v. Aetna Casualty Surety and 89 F.3d 976 Cir.1996), Appeals the Third of Circuit Court held that under New Jersey law insurance trigger under the continuous theo- ry discharge pollutants. commences at the time of the initial of explained The court causing agent [u]nder the continuous harm the is theory, exposure coverage. injury sufficient to Actual manifestation of the is not potential long resulting damage. so as there is a required, continuous, indivisible process discharged It is that Chemical Leaman undisputed contaminated rinsewater into lagoons the unlined and from 1960-70. ponds Moreover, the district every year settling found as a factual matter that “contaminated rinsewater the three from migrating through underlying groundwater started the soil

ponds almost beginning Accordingly, in 1960.” the district immediately pond operation after damage court as a concluded matter of law that correctly occurred property upon initial in 1960, and should have concluded as a of law that exposure matter property damage occurred each from 1961-70. policy period (citations added).] [Id. at 995-96 omittedXemphasis rejected argument court the insurers’ that the insured had injury” during failed to demonstrate “actual policy the relevant periods trigger theory, proof and held that “[u]nder continuous injury of actual in the sense of manifestation of is Indus., required.” Employers Ibid. See also Armotek Inc. v. Ins. “ Wausau, (3d Cir.1991)(holding ‘expo F.2d sure’ and damage ‘manifestation’ occurred at the time of the causing spill”). [oil] In Wisconsin Electric Power Co. v. Union Insurance California (Wis.Ct.App.1987), Wis.2d 419 N.W.2d 255 the Wis directly Appeals applied reasoning

consin Court of in Keene Corporation involving injury by stray voltage to a case caused system faulty supply coverage com- power and held that

from discharge pollutants of the initial menced the time until harm had eradicated. The court stated continued been agree reasoning states [w]e with of the decision. Cal Keene Union’s policy ... means a continuous or “[t]he word ‘occurrence’ ... exposure repeated conditions which results in ... neither nor intended expected property general existing to ... the Assured. All ... the same conditions exposure and/or emanating A location or shall be deemed one occurrence.” one source language, ad- reasonable this the interpretation perfectly interpretation long dangerous that as is harmful vanced is as there by WEPCo, exposure single continuing. Keene, As in while of the conditions, occurrence any part injurious continues. best continues, occurrence This process interpretation understandings hold of the insured. We protects expectations therefore triggering coverage began that the “occurrence” the insurance with the policies and continued until installation supply uninterrupted power was resolved in 198%. problem added) (citations omitted).] (emphasis [Id. at 255 419 N.W.2d 680-81, recently, Appeals applied the More the Wisconsin Court of Electric, reasoning swpra, involving to a dam Wisconsin case resulting age Society landfill v. Frank from contamination. Ins. (2000). lin, plaintiff 233 607 N.W.2d munici Wis.2d 342 pality by under was insured defendant insurer consecutive one- year policies argued only 1972 to 1986. Defendant that one from policies triggered its the because the contamination from by municipality seeped neighboring property landfill used the onto rejected argument in 1981. The instead court the insurer’s and trigger theory applied held that the have continuous “because we occurrence,” ongoing concluded that the contamination was one us, court, attempt and “it would make no sense for or the trial to pinpoint happened.” (citing to when the occurrence at 348 Id. specifically language to Electric Wisconsin that “installation” Therefore, triggers coverage). all of the the court concluded that policies municipality’s defendant’s in effect the time of from discharge triggered. until date of remediation were County, supra, “injurious

In New held Castle the court that the process” encapsulated included continuous doctrine municipality’s discharge gradual initial into a landfill and

427 leaching surrounding into property. F.Supp. contaminants (noting “process property damage at that the that led to this began early referring testimony as half of as the first 1969” and to indicating slight had been a “there deterioration the wells 1969”). Tybouts by July, at also Fund See Fireman’s Ins. Cos. v. F.Supp. (holding Corp., supra, Ex-Cell-O at 76 several defen allegedly “policyholders exposed insurers dant liable where during” pollutants policy periods); Technologies United sites Co., Corp. Liberty v. Insur. 1993 WL Mutual No. (Mass.Super.Aug.3, 1993)(citing County, supra, at *18 New Castle F.Supp. proposition continuous doc- landfill, dumping, leaching trine “embrac[es][ ] from and dis- covery pollution damage”); Huntzinger Hastings of the v. Mutual (7th Cir.l998)(adopting Ins. 143 F.3d continuous trigger theory stating “exposure and ‘occurs at the moment improperly are that hazardous wastes released into the environ- ” judged by ment’ and that “manifestation ‘is the time at which the (citations discovered’”) omitted); leakage are first Hickman, DeYoung supra, Ky. also L.Rev. See & N. at 295 (“‘The dumping discharge or of the is akin to initial waste (i.e. of) exposure asbestos; leaching inhalation of the wastes ground exposure into the subsurface reservoirs is similar residence; ultimately property damage and the discovered is diseases.’”) analogous to the manifestation of asbestos-related (citations omitted).

Although factually procedurally distinct the instant matter, interpreting “owned-property” a line of cases exclusion “injurious policies appears in CGL define insurance also process” broadly. Many jurisdictions more have held that an clean-up coverage insured’s on-site soil should an not bar under property” “owned if exclusion clause the contaminants the soil underlying groundwater migrate surrounding threaten to or the property of Arco American Corp. others. Industries v. Motorists Co., Mich.App. (Mich.Ct.App. Insurance 594 N.W.2d 1998), involved insurance claims related to remediation of parts manufacturing plant. of an chemical contamination auto court Arco, Appeals with a lower Michigan concurred Court policy at in the property” exclusion CGL ruling that the “owned up the coverage the failure to clean “because did not exclude issue further contaminate seepage pond at the site would soil pointed to the court had Id. at 66. lower groundwater.” migrate into the would that the contaminants threat” “substantial groundwater. Co., 28 Surety v. Dow Chemical Casualty & Co.

In Aetna (E.D.Mich.1998), sought indemnifica- the insured F.Supp.2d 448 resulting costs for remediation tion from its insurer manufacturing of its sites. at several environmental contamination coverage Michigan provided for environ- law The court held that property notwithstanding the exclusion. owned mental remediation damage had need to show actual Although the insured did not must third-party, court held that the insured to a occurred prevent imminent “the need for remediation first establish explained, the court party.” Id. at 454. As harm to a third groundwa- will affect the [i]f imminently an subsoil is contaminated and insured’s ground water to show contamination order insured need not wait for the ter, the coverage of imminent for remediation. The requirement to obtain insurance passing off the cost of the improvements insureds from property prevents damage is insurers where purely speculative----While to their third-party coverage for remediation third-party .does bar owned property provision coverage was bar where remediation undertaken pursu- it also does not property, government mandate. ant to 455.] [/A at required to jurisdictions also have held that insurers are Other has not indemnify even when contamination remediation costs v. Paul beyond property. own See Patz St. spread the insured’s (7th Co., Cir.1994)(holding 15 F.3d Fire & Marine Ins. prop despite applicability of “owned triggered was government had mandated remediation of erty” because exclusion contamination); v. Bankers Trust Co. the environmental Hartford (D.N.Y. 371, 373-74 F.Supp. Accident & Indem. 1981)(“[W]ork prevent seepage further oil property on done policies ... if the coverage of the a matter of law within the as situation, have allowed the plaintiffs this could policy did not cover shores, pollute causing oil to continue the river and its further damage damage parties, ironically social to third and ultimate- ly costing money.”). even Hartford more The courts those depositing may cases reason that an insured’s act of waste set off „other process property. an unalterable that threatens to C parties appeal dispute applicability The to this do not trigger theory coverage the continuous to environmental con depart tamination claims and we see no reason to from the sound support recognizing line of cases and academic benefits applying theory types Developments to these of claims. See 1458, Litigation, in the Law —Toxic 99 Haro. Waste L.Rev. (1986)(“Because rule, dangers it avoids the of the manifestation encourages charge it all because insurers to monitor risks and appropriate premiums, trigger appears the continuous rule to be cases.”). Instead, the most efficient doctrine for toxic waste this Indeed, theory applied. case turns on how the should be majority dissenting appellate opinions, although division both applying trigger theory, reached different conclu concerning Century’s coverage obligation. sions Pak, majority opinion supra, N.J.Super. relied on Astro proposition determining 665 A.2d for the trigger theory initial of the continuous the focus should be landfill, discharge on the of contaminants from a rather than on Mutual, depositing Quincy supra, of waste into that landfill. interpreted 769A.2d 1053. The court Astro holding trigger theory Pak as that under the continuous “the first pull only of [the] occur[s] ha[s] when there been some (or ‘damage,’ disposal dumping) and that waste itself did not ” Furthermore, ‘damage.’ rejected Quincy’s cause court Ibid. comparison of the environmental contamination from the landfill in Owens-Illinois, this ease with the asbestos addressed supra, arguing 138 N.J. 650 A.2d the court pains ultimately approve the Owens-Illinois “took to discuss and triggering injury-in-fact’ conclusion that ‘an trial court’s inhalation of asbestos policies occurs on the the insurance under Mutual, N.J.Super. at supra, 769 A.2d Quincy fibers.” Quincy presented no evidence that had The court found injury waste was demonstrating presence of at the time toxic the comparable to the Landfill that was at all deposited into the initial scientifically proven damage associated with the tissue Instead, damage only when “the occurred inhalation of asbestos. part seeped out of the landfill forming of that waste toxic leachate nearby ground water.” Id. A.2d 1053. reached and Therefore, testimony indi Dr. uncontroverted because Steiner’s at least seepage not have occurred until that that could cated Borough deposited in days the first waste approximately 185 after Landfill, date of subsequent to the termination Centu the a date Quincy solely was ry’s policy, the court concluded that CGL indemnifying Borough. responsible the for underlying principles correctly on the Although the court relied subsequent Jersey cases Owens-Illinois in and New set forth trigger theory toxic tort and environ- applying the continuous cases, analysis. disagree In- we with its mental contamination stead, analysis adopt the of the dissent and its conclu- we would indemnifying Century partially responsible for the that sion Borough. dissent, Wecker, applying Judge her initially triggered

theory, that was when concluded Landfill while Borough dumped toxic waste into the Kramer first majority, Judge Century’s Like the policy was still effect. testimony, expert relied on Dr. Steiner’s uncontroverted Wecker Judge As portion, a to come to that conclusion. albeit different demonstrates, testimony summary of Dr. Wecker’s Steiner’s “injurious comparable “injurious process” in this case is personal property process” involved asbestos-related damage eases. migrating through “a downward a Dr. Steiner described leachate as flow liquid gravity “is a material.” The downward movement result capillary

porous agreed at the action.” that “contaminated leachate” from material deposited He groundwater. It is from Dr. Steiner’s into the clear landfill finds its eventually way of an tank or container, was not the enclosed the landfill testimony equivalent without would, toxic materials the landfill nature, and that its very deposited groundwater, ground which in run off as leachate into the into the fail, seep contaminated below and downstream of the landfill. The turn the soil penetrates leak. On the it therefore is not the of some accidental contrary, leachate product original dumping, progression which natural and unavoidable represents starting of an “occurrence” that that is the point must be deemed the “exposure” triggers coverage. polluting leachate to reach fact that it have taken some 200 days may not occur earlier. not mean that did does property particular point as the toxic material was contaminated as soon is, landfill, The property, journey through began damaging toxins their for that is when the dumped, began damaging ground just their as the asbestos fibers Owens-Illinois — journey through of the insulation. the air installation immediately upon 1053.]1 [Id at 769A.2d testimony, Judge Dr. Wecker concluded Based on Steiner’s Borough’s “damaging pollution set in motion a ‘cumulative and analogous the onset of asbestosis. progressive’ process” that is testimony Id. at Dr. believe that Steiner’s 769 A.2d We deposit inescapable that the initial of the conclusion demonstrates injurious process the wastes into the Kramer Landfill set off toxic groundwater As one commentator has resulting contamination. “[tjoxic observed, analogous most to asbestos waste loss will be dumping, since the leaching begins at the moment of loss when the 1 following exchange during cross examination demonstrates Dr. Steiner's groundwater contamination once to be the virtual what inevitability appears are in an unlined landfill: toxic wastes deposited holding [ ] one

Q. station, a the movement Well, is merely way capacity waiting for it downward, area, station, hit a a molecule will move to way dry migration right? downward, continue its be wetter at which it will to point A. That's true. ground Q. water, the is that [] one molecule reaches So Okay. eventually right? A. Yes. Q. the landfill creates new Now, of new material at the [top] placement ground find their water? of material that will molecules eventually way

A. Eventually, yes. find its Q. in the landfill it would not And if that new material was placed ground water? way True. A. may resulting damage have resulted from one be deemed to continuous, uninterrupted exposure process or from continuous Howard, substantially general supra, the same conditions.” Tort & Ins. L.J. at 639. jurisdictions similarly depositing have held that the

Other injurious triggers process. an unalterable waste into landfill Mutual, Harleysville supra, F.Supp. although at provide distinguishable from this case because the record did not indicating approximate scientific evidence amount of time it landfill, through took for leachate to move the court acknowl- edged possibility “injurious process” that the could have been dumped when toxic “Al- initiated waste first the landfill: though testing by did not reveal contamination of Weston third party property argued until the insurers themselves have geologic that the conditions at Landfill No. were sufficient to development groundwa- foster the of leachate contamination of the immediately upon beginning operations ter of landfill 1970.” Moreover, testimony regarding Id. at 1124-25. Dr. Steiner’s by process generated through which leachate is and moves an landfill, Landfill, unlined such as the Kramer demonstrates that by reasoning Corporation advanced the court in Keene is applicable appeal. Although to the factual context in this exposure Borough’s initial to the contaminants caused depositing municipal “an waste was not immediate and discrete injury, injurious part process enough the fact that it is of an for ‘injury’ policies.” it to Corp., supra, constitute under the Keene (“The injury F.2d and attendant became predictable precisely past because it was discovered that occur- likely injurious processes rences were set in have motion liable.”). Leaman, which Keene could be held See also Chemical supra, (holding discharge 89 F.3d at 995-96 that insured’s initial began process contaminated rinsewater “continuous indivisible resulting damage”); County, supra, in F.Supp. New Castle 725 at (holding “injurious process” 812 that was initiated before leachate contamination); Hickman, DeYoung supra, Ky. & 17 N. L.Rev. at (concluding dumping directly that in waste landfill is asbestos); Surety analogous Aetna Cas. & to inhalation of triggered by (recognizing that could be F.Supp.2d at 454 groundwater). prevent imminent contamination of need to majority’s on Astro rejected the reliance below also dissent explained, in Astro Pak the court was Judge Pak As Wecker end of dispute pull over the last of the faced with “a —the here) (as dispute in a about the the covered ‘occurrence’—and Mutual, trigger.” Quincy supra, 338 pull of the first Moreover, (Wecker, J., dissenting). 769 A .2d 1053 discharge into the of leachate in Astro Pak held that the court depositing initial of waste constituted groundwater rather than the way in which the landfill part in because of the pollution Landfill, by Dr. as described the Kramer was constructed. Unlike a testimony, Pak was built with the landfill Astro Steiner his surrounding groundwater from con designed protect the liner compared qualities, it physical its the court tamination. Based on Here, [ ] “there is no sprung a leak. to an enclosed tank had leaching analogy that occurred support an between evidence leaking landfill and a tank.” Ibid. in the Kramer Furthermore, bright-line trigger persuaded that a rule we are deposited landfill is a ing coverage when toxic waste is first subsequent toxic tort with Owens-Illinois more consistent point of cases. “From a theoretical contamination environmental view, property creates a deposited in or on when toxic material health, deposit dangerous itself to life or condition is damaged property, property and the utility affects the of the Mutual, A.2d 1053 thereby.” N.J.Super. at Quincy Owens-Illinois, supra, (Wecker, J., dissenting). goal Our disputes range of “narrow the to fashion a standard would disputes that re provide procedures better to resolve Requiring insurer A .2d 974. “each main.” 138 N.J. at (or court) pollutants that were the date when to calculate groundwater in likely into the dumped into a landfill most leached trigger period” the start of the continuous order to determine Quincy already complicated area of the law. complicates an Mutual, (Wecker, J., supra, N.J.Super. 769 A.2d 1053 dissenting). prefer adopt We to a rule that takes into consider impossibility establishing ation the under certain circumstances of exactly groundwater began: when the contamination “Unfortu nately, geography in a life landfill is not so ‘clean.’ The of each unique, generalize possible site is and thus it is not at what rate pollutants migrate County, supra, will from the site.” New Castle F.Supp. at 811.

Moreover, adopted trigger theory we continuous Owens- Illinois, supra, large part ability because of its to maximize coverage. recognized 138 N.J. at 650 A.2d 974. We also ability companies spread of insurance the costs of indemnifica- industry, provide tion across the and that the law should “not parties acquire disincentives to insurance when available to 472-73, cover the risks.” Id. at 650 A .2d 974. See also Carter- Wallace, supra, (stating 154 N.J. at 712 A .2d 1116 by “guided decision was our concern for the efficient use of problem resources to address the of environmental disease and simple justice”). Judge the demands of As Pressler stated Association, Winding Hills Condominium Inc. v. North Ameri 85, 91, Specialty can Insurance (2000), “the law’s solicitousness for victims of mass toxic torts and entirely other environmental contamination is with consistent choosing conceptually theory affording viable Hickman, greatest DeYoung supra, ultimate redress.” See also & (“The N. Ky. policies triggered, L.Rev. at 296 more the more likely covered, the insured’s losses will be coverage and the more loss.”). potentially indemnify available the insured for its considerations, foregoing Based on the we conclude exposure relating Borough’s depositing to the initial of toxic waste into the Landfill first under the continu trigger theory ous and constitutes an “occurrence” under Centu ry’s policy. That result also is the most consistent with our previous decisions the area of environmental contamination insurance law.

III Century’s implicat policy was our conclusion that Based on depositing hazardous waste into Borough’s of as a result of the ed of Landfill, appropriate the allocation now must determine the we Again, Century policies. there Quincy the and between parties pro that the rata risk dispute among the appears to be no Owens-Illinois, 437, 138 N.J. supra, in rule established allocation However, 974, according Quincy, under apply. A should 650 .2d years it Century responsible for the number of should be that rule period. during Over coverage the continuous provided Quin Century’s policies and three of period one of relevant time $500,000policy policy had a cy’s policies triggered and each were Therefore, Century’s Quincy share of the contends limit. twenty-five percent. policy million dollar limit is accumulative two Century’s policy Although Appellate Division concluded trigger theory, the court implicated the continuous was not under appropriate alloca- Quincy’s regarding the contention addressed that, if liability. both insurers’ of The court determined tion liability would be implicated, respective policies had been their policy provided days each on the number of allocated based Therefore, trigger period. coverage during concluded that court or two would be based on one share of liability only Century’s proportionate (between dumping of in commencement April/May

months exposure 1978) of a total of some two and on June out 18, of the Century policy expiration dumping That would 1978 and 1981. January between May one-half years or .05 of a total of 880 about percent. days days, approximately forty-five represent be little more than de minimus. That number would 1053.] at n. 769 A.2d Mutual, [Quincy supra, analysis explanation of on our Appellate Division based that Owens-Illinois, pro rata risk allocation Owens-Illinois. rejected theory allocation under which supra, we year policy’s and one collapsed into one continuous injury. 650 A.2d 138 N.J. coverage applies to Instead, allocation fairer method of “[a] determined that we time on the risk related to both the appears to be one that is degree of risk assumed.” 138 N.J. at 650 A.2d 974. Therefore, we held that a “better formula” would allocate the among “losses the carriers on the basis of the extent of the risk assumed, i.e., limits, proration policy multiplied by on the basis years coverage.” (citing Armstrong Indus., Surety Cal.Rptr.2d World Inc. v. Aetna Cas. & (Cal.Ct.App.1993)). hypothetical We then relied on the facts opinion explain concept: we had used earlier in the If we were to the constant levels limits as evidence of constant accept policy (in risks assumed over the to manifestation the case nine-year span exposure year), of disease manifested in the ninth the carriers on the risk in four, five, years and six would each one-ninth of the or loss, pay collectively thirty-three percent. If the facts of had been us otherwise —let had been effect say policies through one three in the amount of million two four years per year years through might six at three million assess risk assumed per year years —'we through during seven nine at four million Carriers the first three per year. years roughly (6/27ths); covering would bear- carriers twenty-two percent the middle (9/27ths); building three would bear years and the owners thirty-three percent (12/27ths). would bear of risk Of limits and forty-four percent course, policy recognize exclusions must be into taken account. We that such even mathematical will not occur, and so we must a substantial of proportions measure repose discretion in a master who must the formula that reflects the risks develop fairly assumed or transferred. 974.] at 475-76, 650 A.2d

lid. Appellate As the explained, spoke years Division we of of coverage only hypothetical example because of the we used to explain allocation based on the extent of risk assumed. The hypothetical years days use of a that focused on rather than provided simplified explanation concept a for company that “a providing coverage longer period normally over a would a bear greater liability share of the insured’s than [that] one was involved Mutual, period.” Quincy supra, for shorter at 403 n. opinion 769 A.2d 1053. Later in the we stated more generally appropriate theory that the of allocation in “should be proportion degree to the of the risks transferred or retained Owens-Illinois, during years exposure.” supra, 138 N.J. specifically 650 A. 2d 974. We did not address how that apply presented formula would to the in appeal facts this an where only portion year insurer was on the risk for a of a that is included specifically that trigger period. We now hold in the continuous days should reflect rather allocation formula the Owens-Illinois require that underlying facts years on the risk when the than liability. degree precision the allocation capacity of the continuous holding does not affect the Our coverage in environmental theory maximum to afford the insurer on simply because this case claims contamination trigger period portion of the continuous during the initial the risk Borough’s only portion of the responsible for a de minimus will be Moreover, justice” “simple dictate that we liability. principles of Century responsible for reject Quincy’s argument that should be merely trigger period be year an entire within year. portion for a of that cause it was on the risk A .2d974.

TV reversed and the judgment Appellate Division is liability an allocation of to the trial court for matter is remanded Quincy Century policies that is consistent with between opinion. this

LaVECCHIA, J., dissenting part. concurring part, when, question in the context familiar appeal This raises the claim, legally does an insured property of a become another, entitling the insured to obligated damages for issue here question is critical to the from an insurer. The responsible for a landfill’s should be concerning which insurers majority errs damage. Respectfully, the groundwater holding Appellate Division. The Court’s it reverses the when injury” recognized in Owens- misapplies notion of “continuous Illinois, Company, N.J. Incorporated v. United Insurance (1994). 437, A .2d974 liability. at 441- Id. claims of asbestos

Owens-Illinois involved brought declaratory judgment action In that 650 A .2d974. carriers, the Court against its insurance manufacturer an asbestos question asbestos, held that there injury was no but that therefrom, was instantaneous and continuous from the moment that buildings asbestos was installed in the in issue. Id. explained 650 A.2d 974. The Court that scientific research damages had continuously established that accrued from the build ing particles, inhabitants’ inhalation of causing airborne asbestos injurious 453-54, an occurrence. Id. at A. According 650 2d 974. ly, liability the insurer’s started with the moment of (and injury damages), through discovery continued of the and its remediation. Id. at 650 A.2d 974. Owens-Illinois, previous decisions, and in this Court has principle reaffirmed the that the time of accrual of an insured’s liability determining must be the compel coverage factor to when negligence. 452-53, the basis of the claim is (citations omitted). liability That damage actually occurs when suffered. applied Owens-Illinois,

The principle Court relying on prior its decision Indemnity Accident & Company v. Hartford Aetna Casualty Company, Insurance 98 N.J. Life (1984), A. 2d 402 which in extensively turn cited from Muller Fuel Company Oil America, v. Insurance Company North 564, 578, (App.Div.1967) (stating A.2d 168 “ generally in indemnity policy, context of time of ‘occurrence’ ... is not the wrongful time the act was committed but the time when complaining party actually damaged. ‘The time of the accrual of factor, the insured’s determining is the not the time of an event ultimately which liability.’”). results in scientific evidence persuasively Owens-Illinois established that bodily injury immediately occurs when asbestos is inhaled and lungs. retained in the 138 N.J. at 650 A.2d Although persuasive record was found to be less property on the issue of damage, similarly the Court concluded that claims of asbestos- property damage related begin at installation and continue throughout period particles that friable detach and release into material, degradation through the air normal of the and then 454-56, process. remediation 650 A.2d 974. injury damage parties No such evidence of to third exists in during period coverage by Quincy. Quincy this record of merely dumping on the risk at the time of of lawful material Quincy’s seeped policy period that later from the landfill after had enough principles concluded. That is not under our normal of liability accrual of to cause an insurer to be liable on a risk. view, my majority Appellate decision Division of properly in concluded this matter and that decision should not be Writing majority, Judge disturbed. for the Lesemann made the compelling point dumping that for the in issue here deposited attached not as of the time that the material was landfill, perfectly legal regulatory which was and authorized all time, components dumped at the at the time that bodies but of the injury materials leached out of landfill and caused Bellmawr, groundwater. Quincy Borough Mut Fire Ins. Co. v. (2001). 395, 402-04, N.J.Super. Appellate 769 A.2d 1053 determination, injury Division’s that there was no until the landfill groundwa failed and the materials it contained caused ter, principles, is consistent with Muller Fuel’s and with the application principles of those consistent Owens- Hartford 402-04, Quincy, supra, N.J.Super. Illinois. 769 A.2d 1053. Corp. See also Astro Pak v. Fireman’s Fund Ins. 491, 499-501, (holding (App.Div.1995) place policy depositing of solid waste into landfill took within

period, finding triggering placing “not event was landfill,” denied, pollutants escape), into the rather their but certif. (1995). 670A.2d 1065 N.J. majority Appellate I of the Division as conso- view decision injury causing damage, nant with the notion that it is and accrual indemnity policy liability, “triggers” under an inevitability insurance. The Court’s notion of and dam- age misapplication is based on a of the doctrine of “continuous injury” why coverage only at and leads one to wonder should start because, argue, one could dumping of the material the time of the up would end at the that the discarded waste it was inevitable open-ended approach contracted to receive the waste. landfill majority mistakenly the notion of and has severed of the accrual-of-liability analysis. damage party a third from the respectfully portion from that of the Accordingly, I dissent any responsibility prior an insurer opinion that allocates Court’s groundwater. I would affirm the date of to the thorough substantially expressed for the reasons Judge Quincy, supra, 338 thoughtful decision of Lesemann. 397-404, Subject my contrary 769 A.2d 1053. N.J.Super. at insurer, I coverage required of an concur of when should be view Appellate Division’s allocation the Court’s affirmance of with among carriers. as liable joins in this concurrence and dissent. Justice VERNIERO For reversal and remandment —Justice PORITZ Justices STEIN, COLEMAN, LONG, ZAZZALI —5.

Concurring part; dissenting part VERNIERO —Justices and LaVECCHIA —2. J.N.H., A

IN THE MATTER OF THE GUARDIANSHIP OF MINOR. Argued April June 2002 Decided

Case Details

Case Name: Quincy Mutual Fire Insurance v. Borough of Bellmawr

Court Name: Supreme Court of New Jersey

Date Published: Jun 25, 2002

Citation: 799 A.2d 499

Court Abbreviation: N.J.