American States Insurance Co. v. Kiger

SULLIVAN, Justice,

concurring and dissenting.

Both sides in this case are represented by extremely able lawyers who have made very strong arguments in support of their respective positions, each of which is amply supported by relevant case law, helpful see-ondary sources and amici curiae. After digesting all of this material, I sort out the issues somewhat differently from the majority.

The Kigers' general comprehensive liability (GCL) policies issued prior to 1987 exelud-ed from their coverage: "Bodily injury or property damage caused by the dumping, discharge or escape of irritants, pollutants or contaminants." However, this exclusion was subject to the following exception: "This exclusion does not apply if the discharge is sudden and accidental."

After studying the briefs and the cases and secondary sources on the coverage provided by these policies, I find myself in agreement with the majority and those cases that hold that (1) because the term "sudden" is susceptible of two reasonable interpretations "abrupt" and "unexpected"), it is ambiguous under Indiana law and (i) the dictates of this state's insurance law requires resolving this ambiguity in favor of the Kigers. See New Castle County v. Hartford Accident & Indemnity Co., 933 F.2d 1162, 1192-1199 (3d Cir.1991), after remand, 970 F.2d 1267, 1269 (1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1846, 123 L.Ed.2d 470 (1993); Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456 N.W.2d 570 (Wis.1990); Claussen v. Aetna Casualty & Surety Co., 259 Ga. 333, 380 S.E.2d 686 (Ga.1989).

The GCL policies purchased by the Kigers starting in 1987 provided that the insurance policy did not cover:; "Bodily injury, property damage or loss, cost or expense arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants." These polices also contained the following definition: "Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed."

After studying the briefs and the cases and secondary sources on the coverage provided by these policies, I find myself in disagreement with the majority and in agreement *950with those cases that hold (i) that this so-called "absolute" pollution exclusion is unambiguous and (i) that gasoline and petroleum products that contaminate ground or water constitute "pollutants." See Heyman Associates No. 1 v. Insurance Co. of State of Pennsylvania, 231 Conn. 756, 769-777, 653 A.2d 122, 129-133 (Conn.1995); Union Mutual Insurance Co. v. Hatch, 835 F.Supp. 59, 64-66 (D.N.H.1993).

In this case, the facts show that the discharge of the Kigers' gasoline was accidental and contaminated the ground and perhaps the groundwater supply. Based on these facts and the analysis of the policy provisions presented above, I conclude that the Kigers' pre-1987 policies covered claims for damages arising from the discharge of their gasoline because those policies covered the accidental discharge of the contaminating pollutant gasoline. However, I conclude that the latter polices excluded coverage for damages arising from the discharge of the Kigers' gasoline because those polices did not cover the accidental discharge of the contaminating pollutant gasoline.

For these reasons, I concur in Part I but dissent from Part II of the majority's opinion.

SHEPARD, C.J., concurs.