(dissenting).
I respectfully dissent. We previously held that there are material facts in this case that preclude summary judgment. See Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 377 (Minn. App.1992) (“[W]e find numerous issues of material fact concerning * * * whether the release was sudden and accidental.”), pet. for rev. denied (Minn. Mar. 26, 1992). I find nothing in the record that supports a change in this position.
The majority holds that it would be unduly speculative to independently consider whether each release was sudden. In our prior holding, we expressly instructed the district court to undertake this task. See id. at 374 (If court finds multiple discharges or releases, “the trial court will have to determine whether all, some, or none of these discharges or releases were sudden and accidental.”). This language clearly defines the scope of the finality of our decision and thus became the law of the case. See Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn.1987) (law of the case “determined by what the court’s decision says”).
The majority concludes that “microanaly-sis” of each individual release is an impossible task. Resolution of that issue depends on facts that were not before the district court and are not before this court on appeal. In any event, the district court did not find it an impossible task. Rather, the court explicitly found that for purposes of summary judgment, the discharges were both discrete and “sudden and accidental.” Since these are exactly the types of discharges that are excepted from the pollution exclusion, the district court should have accordingly denied summary judgment without going any further. Instead, the district court went on to find that, as a matter of law, the discharges were seepage and that seepage cannot be sudden and accidental.
This is erroneous for two reasons. First, simply redefining “discharges” as “seepage” does not change the manner in which the contamination occurred. Sudden and accidental discharges are not excluded from coverage, regardless of what they are called. Second, this again conflicts with our earlier decision. See Sylvester Bros., 480 N.W.2d at 376 (While difficult to imagine that seepage was sudden, “it is not our role to decide disputed facts.”). Those facts are still in dispute. Our holding established that “sudden” means “the incident at issue occurs relatively quickly rather than gradually over a long period of time.” Id. at 375. The holding also made clear that the incident at issue in this case is the release of the contaminants from the landfill. Id. at 373-74. The operator has provided an expert’s affidavit that describes several ways the release of contaminants from the landfill could occur relatively quickly, in other words, ways in which the “incident” may have been “sudden.” This affidavit raises questions of material fact. Under Minn.R.Civ.P. 56.03, summary judgment is inappropriate.
I would remand for trial.