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Koppers Co. v. Aetna Casualty & Sur. Co.

ELR Citation: 24 ELR 21170
Nos. No. 85-2136, 840 F. Supp. 390/(W.D. Pa., 12/27/1993)

The court holds that under Pennsylvania law, the "sudden and accidental" exception to a pollution exclusion in a comprehensive general liability (CGL) insurance policy does not cover an on-going discharge of landfill pollutants that eventually find their way into the surrounding environment. The holder of a CGL with a pollution exclusion clause sought insurance coverage for the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims against it that alleged environmental damage at 11 landfill sites. The court first holds that no genuine issue of material fact exists to refute the existence of the pollution exclusion in the policy. The court further holds that the policyholder failed to show the existence of genuine issues of material fact refuting the applicability of the "sudden and accidental" exception to the subject sites. The court holds the "sudden and accidental" exception as precluding coverage for gradual, continuous contamination furthers the policies underlying CERCLA by encouraging potential polluters to monitor closely the disposition of their contaminants. The court next holds that Rule 56(f) of the Federal Rules of Civil Procedure does not prevent summary judgment because the policyholder merely asserts that further discovery may reveal sudden or accidental puncturing of storage drums or site liners. Also, even if the landfill owner could prove that all of its drums were simultaneously punctured and the pollutants immediately leached deep into the soil and groundwater, it would still fail the "lasting only a short time" component of the sudden and accidental test. By failing to rebut reports that the contaminants gradually migrated over a long period of time at the subject landfills, the policyholder failed to meet its burden to show a genuine issue of material fact as to the characterization of the discharge at any of the 11 sites.

Counsel for Plaintiff
Charles H. Moellenberg Jr.
Jones, Day, Reavis & Pogue
500 Grant St., 31st Fl., Pittsburgh PA 15219
(412) 391-3939

Counsel for Defendants
Samuel W. Braver
Buchanan & Ingersoll
5800 USX Tower
600 Grant St., Pittsburgh PA 15219
(412) 562-8800