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Bituminous Cas. Corp. v. Aaron Ferer & Sons Co.

ELR Citation: 37 ELR 20199
Nos. No. 4:06CV3128, (D. Neb., 07/16/2007)

A district court held that an insurance company has no duty to defend or indemnify a metal scrap company for any liability it incurs in connection with the Omaha Lead Superfund site. The insurance policy contains a pollution exclusion clause, but the exclusion does not apply to discharges that are sudden and accidental. Under Nebraska law, the burden rests with the insurer to establish the initial applicability of the pollution exclusion by showing the discharge or release of a pollutant into the environment. But the burden then shifts to the insured to show that the "sudden and accidental" exception to that exclusion is applicable. Here, the company presented no evidence tending to show that the release of hazardous substances at the site was sudden and accidental. The insurer, therefore, is entitled to the entry of summary judgment.