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Bituminous Casualty Corp. v. Tonka Corp.

ELR Citation: 24 ELR 20456
Nos. No. 92-3187, 9 F.3d 51/(8th Cir., 11/12/1993)

The court holds that an insurer has no duty under its comprehensive general liability insurance (CGL) policies to defend or indemnify a toy manufacturer subject to state administrative enforcement proceedings to remedy groundwater contamination resulting from the insured's release of trichloroethylene (TCE) and other solvents at its Minnesota plant. The court holds that the policies containing pollution exclusion clauses do not cover the insured's claims, because the insured's ongoing and routine on-site disposal of wastes was not "sudden" as a matter of Minnesota law. The court also holds that the policies not containing pollution exclusion clauses do not cover the insured's waste disposal, because the insured knew or should have known that a substantial probability existed that its on-site dumping of liquid wastes containing TCE and other solvents would cause property damage. The court holds the disposal was "expected" as a matter of Minnesota law and not a covered "occurrence" under the policies necessary to trigger the insurer's duty to defend. The court further finds that there are no genuine issues of material fact as to whether the insured knew the liquid wastes dumped on site contained TCE, whether TCE contamination might have been caused by accidental spills, or whether the insured knew TCE would harm the environment.

Counsel for Plaintiff
Thomas E. Peterson, Leon R. Erstad
Erstad & Riemer
3800 W. 80th St., Minneapolis MN 55402
(612) 896-3700

Counsel for Defendant
Mary R. Vasaly
Maslon, Edelman, Borman & Brand
3300 Norwest Ctr.
90 S. 70th St., Minneapolis MN 55402
(612) 672-8200

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.