165 A.D.2d 415 | N.Y. App. Div. | 1991
OPINION OF THE COURT
In October 1985, employees of defendant Abalene Pest Control Service, Inc. (hereinafter Abalene) buried a large quantity of hazardous chemicals on the grounds of Abalene’s facility in the Town of Moreau, Saratoga County.
In January 1988, plaintiffs commenced this action seeking abatement of the public nuisance and damages. After issue was joined, Abalene, Walter T. Blank and Jane F. Blank (hereinafter collectively referred to as defendants) commenced a third-party action against NEMC, Capital Mutual Insurance Company (hereinafter Capital) and National Union Fire Insurance Company of Pittsburgh, Pennsylvania (hereinafter National). National insures defendants in their corporate capacity while Capital insures the Blanks only in their individual capacity. Essentially, defendants allege that the environmental damage was caused when NEMC carelessly removed the improperly buried chemicals and that Capital and National had a duty to defend and indemnify them because of comprehensive general liability insurance policies. Thereafter, Capital and National each moved for summary judgment dismissing the third-party complaint. Defendants cross-moved for an order declaring that Capital and National were obligated to defend, claiming that Supreme Court could only examine the allegations of the complaint in so deciding. This argument notwithstanding, the court took judicial notice of the criminal convictions, found that Abalene’s dumping was intentional and therefore outside of the policy coverage, and dismissed the third-party complaint. Defendants now appeal.
There should be an affirmance. We agree with Supreme Court that Capital and National had no duty to defend or indemnify defendants. Capital’s policy defines an "occurrence” as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured”.
Here, the allegation of the complaint that defendants "knew or should have known that the manner in which the wastes were disposed of would result in their release into the environment” is virtually identical to the allegation which this court considered in County of Broome v Aetna Cas. & Sur. Co. (146 AD2d 337, 340, lv denied 74 NY2d 614) and concluded that "it cannot be said that [the complaint] alleges that the consequences of [the] pollution were not intended or expected” (supra, at 340). Moreover, while it is true that a court should be hesitant to leave the boundaries of the complaint in making its determination on an insured’s duty to defend (see, International Paper Co. v Continental Cas. Co., supra), it need not ignore positive proof, extrinsic to the complaint, that assists in clarifying an ambiguous allegation (see, Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 75; Lionel Freedman, Inc. v Glens Falls Ins. Co., supra, at 368-369; County of Broome v Aetna Cas. & Sur. Co., supra, at 341-342). Accordingly, applying the principle of collateral estoppel, Supreme Court properly considered Abalene’s criminal convictions for knowingly dumping hazardous wastes (see, supra) and determined that the convictions precluded defendants from contending that the burial of pesticides was unintentional (see, Green v Santa Fe Indus., 70 NY2d 244, 253; Shire Realty Corp. v Schorr, 55 AD2d 356, 361; Restatement [Second] of Judgments § 59 [3], [5]; cf., Matter of Delford Indus. v New York
Moreover, were we to accept the argument that there are questions of fact as to whether there was an "occurrence”, we would still find no duty to defend or indemnify in view of the pollution exclusion clauses within the policies. Under Capital’s policy, no insurance is provided for: "bodily injury or property damage arising out of the discharge, dispersal, release or escape of * * * toxic chemicals, liquids or gases, 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).
As a final matter, we reject the contention that the determination in a related Federal action that Capital and National had a duty to defend estops them from raising the issue here. The complaints in the State and Federal actions are not the same and, accordingly, there is no identity of issues (see, Ryan v New York Tel. Co., 62 NY2d 494, 500; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 17).
We have considered defendants’ remaining contentions and find that they are either unpreserved for appellate review or without merit.
Orders affirmed, with one bill of costs.
. At the time of the dumping, Abalene was leasing the land where the facility was operating from defendants Walter T. Blank and Jane F. Blank. The Blanks were also president, vice-president and sole shareholders of Abalene.
. The definition of an occurrence in National’s policy is essentially the same.
. The language of the pollution exclusion clause in National’s policy is essentially the same, but also excludes intentional discharges, "if for the purpose of pest control * * * in conformity with any statute, ordinance or regulation applicable thereto”.