Seymour Manufacturing Co. v. Commercial Union Insurance Co. , 1996 Ind. LEXIS 43 ( 1996 )

SULLIVAN, Justice,

dissenting.

The procedural posture of this case is important. Both the insured and insurer sought summary judgment, the insured contending that the insurer had a duty to defend as a matter of law and the insurer contending that it had no such duty as a matter of law. Summary judgment is appropriate only if there is no genuine issue as to any material fact. Ind.Trial Rule 56(C). Here the trial court denied summary judgment, finding that there were genuine issues of material fact and the Court of Appeals affirmed.

Under the insurance policies at issue here, the insurer had no duty to defend the insured against claims of property damage caused by environmental pollution unless the pollution was "sudden and accidental." In American States Insurance Co. v. Kiger, 662 N.E.2d 945 (Ind.1996), this court construed the "sudden and accidental" language of the pollution exclusion in general comprehensive liability policies to be "nothing more than a 'clarification' which made explicit the fact that the insurance did mot cover those acts which are expected or intended." Id. at 948 (emphasis supplied). Here there was evidence that SMC stored multiple barrels of liquid waste at its facility, did not identify or otherwise label the barrels in order to assure the proper method of disposal, did not make any attempt to separate wastes from other incompatible wastes, permitted barrels to rust or otherwise deteriorate, did not clean up open and obvious spills, did not properly cover many barrels, and received some types of waste for which it had no treatment facilities. This evidence supports, but is not dis-positive of, the insurer's position that the hazardous waste spills were "expected or intended." As such, genuine issues of material fact exist as to whether the spills were expected or intended, making summary judgment inappropriate.

Because I believe the trial court properly denied the insured's motion for summary judgment, I dissent.