KEY TRONIC CORPORATION, INC. v. Aetna (CIGNA) Fire Underwriters Ins. Co. , 124 Wash. 2d 618 ( 1994 )

Madsen, J.

(dissenting) — I dissent. In Queen City Farms, Inc. v. Central Nat’l Ins. Co., 126 Wn.2d 50, 882 P.2d 703, 891 P.2d 718 (1994) a majority of this court rejected the interpretation of the pollution exclusion in United Pac. Ins. Co. v. Van’s Westlake Union, Inc., 34 Wn. App. 708, 664 P.2d 1262, 39 A.L.R.4th 1040, review denied, 100 Wn.2d 1018 (1983). This court acknowledged that Van’s Westlake erred in equating the pollution exclusion with the occurrence clause. Queen City Farms, at 88. We recognized that the focus of the pollution exclusion is the polluting event, whereas the focus of the occurrence clause is on the damage. Queen City Farms, at 88. Today, the majority affirms its disapproval of the analysis in Van’s Westlake in one breath, then, in the next breath resurrects it, albeit wrapped in a thin disguise. This metamorphosis is accomplished by restating the Van’s Westlake occurrence analysis and by giving the amorphous "active polluter” a new identity as the bad polluter. Majority, at 631. In this case Key Tronic is beneficiary of the tortured analysis which creates an exception to the pollution exclusion for the good polluter. The majority creates this exception in the face of the exclusion’s unambiguous language by announcing that the polluting event to which the exclusion applies is a changeable event, depending on whether a good or bad polluter discharged the contaminants. First, the majority acknowledges that the "term 'active polluters’ does not appear in the policy language and adds little to the analysis” and that "it has no particular legal significance”, yet in the next sentence makes its own similar yet equally artificial distinction to penalize only the bad polluter. Majority, at 631. This distinction is made by formulating two different polluting events to which the pollution exclusion may apply. Under the majority’s analysis, if the polluting is done by a bad polluter then the exclusion relates to the initial dumping of contaminants. However, when a responsible polluter (one who mistakenly thinks that his pollutants will not migrate and cause damage) is involved, then the focus of this very same pollution exclusion is not the initial dumping but rather, the "secondary” event, the migration. Majority, at 628. Thus, depending on the circumstances, such as "midnight dumping” (by the bad polluter), the initial depositing of wastes may be the polluting event. Majority, at 626. However, where the contaminants are deposited into a landfill (by the good polluter), then it is a second event, the escape of contaminants, which is the relevant polluting event. Majority, at 626. Next, to effectuate this double standard the majority says that "[i]f damage results from a polluting event which is expected or intended, then coverage is excluded under the qualified pollution exclusion”. Majority, at 631. In this way, only the bad polluter will be denied coverage. Although the words are turned around, this sentence merely restates the Van’s Westlake proposition which the majority purports to reject. The better-reasoned approach, and the one followed by a majority of courts throughout the country is that the pollution exclusion focuses on the initial polluting event while the occurrence clause focuses on damage. See Queen City Farms, at 132, (Madsen, J., dissenting). If that initial polluting event is neither "sudden” nor "accidental” then coverage is excluded. Under this analysis, the trial court in this case correctly granted summary judgment since the discharges by the Appellant were routine, intentional and repeated frequently over a 5-year period and thus, neither "sudden” nor "accidental”. The judgment of the trial court should be affirmed.

Durham and Guy, JJ., concur with Madsen, J.

Reconsideration denied March 22, 1995.