West American Insurance Co. v. Baumgartner , 14 Brief Times Rptr. 1662 ( 1990 )

Opinion by

Chief Judge STERNBERG.

The plaintiff, West American Insurance Company, sued its insured, F.W. Baum-gartner, seeking a judgment declaring that it had no duty to defend or indemnify him in certain federal court litigation. The trial court entered summary judgment for West American. Baumgartner appeals, and we affirm.

The State of Colorado brought an action against three mining companies in federal court to recover the cost of cleaning up polluted surface and ground waters under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq. (1982). The state alleged that the mining companies had released hazardous substances into the waters through active mining operations.

The mining companies then filed a third-party complaint against Baumgartner and others, who also owned mining properties in the area, alleging that they would be liable for contribution if the state prevailed. Although Baumgartner did not engage in active mining operations, the mining companies alleged that acid mine waters from his properties contributed to the pollution.

West American insured Baumgartner’s properties under a comprehensive general liability policy. When Baumgartner requested that West American provide him with a defense in the federal suit it agreed to do so, but under a reservation of rights agreement. Thereafter, West American brought a declaratory judgment action against Baumgartner, and the trial court entered summary judgment in its favor.

Baumgartner first contends that the trial court erred in finding that the insurance policy was not ambiguous. Specifically, he asserts that the definition of an “occurrence” in the policy conflicts with the “sudden and accidental” exception to the pollution exclusion clause. We disagree.

“Insurance contracts are to be construed according to the general rules for construction of contracts.” Marez v. Dairyland Insurance Co., 638 P.2d 286 (Colo.1981). The words must be given their plain and ordinary meaning. Chacon v. American Family Mutual Insurance Co., 788 P.2d 748 (Colo.1990). When a policy is unambiguous we may not “rewrite it to arrive at a strained construction,” Chacon, supra, or “force an ambiguity in order to resolve it against an insurer.” Kane v. Royal Insurance Co., 768 P.2d 678 (Colo.1989).

The policy at issue extended coverage to certain occurrences. The term “occurrence” was defined 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....”

The policy also contained a “pollution exclusion” clause which provided that the following was excluded from coverage:

“bodily injury or property damage arising out of the discharge, dispersal, release or escape of ... acids, alkalis, toxic chemicals, liquids or gases ... into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental....”

Relying on American Motorists Insurance Co. v. General Host Corp., 667 F.Supp. 1423 (D.Kan.1987), the trial court held the policy was not ambiguous. In American Motorists, after construing the same provisions as those at issue in this ease, the court found that “ ‘occurrences,’ as defined, are covered unless the occurrences arise out of pollution events; those are not covered unless such pollution events are sudden and accidental.” Accordingly, the American Motorists court held that it:

“cannot conclude that the pollution exclusion clause is ambiguous. The language is clear and plain, something only a lawyer’s ingenuity could make ambiguous. ‘It strains logic to perceive ambiguity in this case.’ ”

We agree with this analysis. See also Gulf Insurance Co. v. State, 43 Colo.App. 360, 607 P.2d 1016 (1979) (policy exclusions serve to narrow the broad definition of “occurrence,” but do not create ambiguity).

We also disagree with Baumgart-ner’s contention that this pollution exclusion clause applies only to active, deliberate polluters. Having determined that the policy is not ambiguous, we must apply it as written. See Chacon, supra. This clause does not state that it applies only to persons who actively pollute. Rather, it excludes certain types of pollutants from coverage. Thus, as evidenced by the contract language, the parties intended to exclude coverage based on what caused the damage, not on who caused it.

Here, it was alleged that acid mine water from Baumgartner’s properties contributed to the pollution by escaping into nearby waters. In our view, this falls within the language of this pollution exclusion clause and is excluded from coverage.

Finally, we do not agree that the “sudden and accidental” exception to pollution exclusion clause applies in this case. The mere fact that the discharge may have been accidental is insufficient to bring it within this exception. A discharge must be both sudden and accidental for the exception to apply. See Waste Management of Carolinas, Inc. v. Peerless Insurance Co., 315 N.C. 688, 340 S.E.2d 374 (1986).

The word “sudden” is not defined in the policy. Therefore, it must be given its plain and ordinary meaning. See Chacon, supra. “Sudden” is defined as “happening without previous notice or with very brief notice.” Webster’s Third New International Dictionary 2284. Although we agree with Baumgartner’s assertion that “sudden” connotes unexpectedness, we note that it also has a temporal dimension, meaning an event which happens quickly. See F.L. Aerospace v. Aetna Casualty & Surety Co., 897 F.2d 214 (6th Cir.1990); United States Fidelity & Guaranty Co. v. Morrison Grain Co., 734 F.Supp. 437 (D.Kan.1990).

The uncontroverted evidence reveals that acid mine water had been discharged from defendant’s property for many years. Baumgartner conceded in his deposition that he was aware of the existence of acid mine water on his properties and that he knew it had been flowing, and continues to flow, into the surrounding streams. Additionally, he conceded that he knew how acid water was created and understood how mine shafts and tunnels affected its movement. Under these circumstances, the discharges cannot be considered “sudden.” The exception to the pollution exclusion clause does not apply.

“Under C.R.C.P. 56(c), summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo.1987). “The scope and interpretation of policy language is a question of law, Grant Investments Co. v. Fuller & Co., 171 Colo. 86, 464 P.2d 859 (1970), and thus may, if dispositive of a claim, justify summary judgment of dismissal.” Smartt v. National Farmers Union Property & Casualty Co., 43 Colo.App. 195, 605 P.2d 479 (1979). This is such a case.

In our view, the trial court correctly concluded that American West was entitled to judgment in its favor as a matter of law. There being no coverage, American West has no duty to defend or indemnify Baum-gartner. See New Hampshire Insurance Co. v. Hecla Mining Co., 791 P.2d 1154 (Colo.App.1989).

We have considered defendant’s other arguments and find them to be without merit.

The judgment is affirmed.

NEY, J., concurs. ROTHENBERG, J., dissents.