Transcription
EXHIBIT D
T h i i Department IndexNo. 65599Tl-IE COUNTY OF COLUMBIA,NEW YORK,Plain@-Appellant,againstCONTINENTAL INSURANCE COMPANY, AETh'A C A S U M & SURETYCOMPANY and FIREMEN'S INSURANCE COMPANY OF NEWARK, N.J.,BRIEF AND APPENDIX OF AMICUS CURIAEINSURANCE ENVIRONMENTAL LITIGATION ASSOCIATION INSUPPORT OF CONTINENTAL INSURANCE COMPANY,AETNA CASUALTY 81SURETY COMPANY AND FIREMEN'SINSURANCE COMPANY OF NEWARK, NJ.Of Counsel:Thomas CV.&unnerLaura A. FogganCarol A. BarthelRussell SullivanWILEY, REIN & FIELDING1776 K Street, N.W.Washington, D.C. 20006(202) 429-7000John L. Altieri, Jr.Roben D. GoldaberMUDGB ROSE GU'I'HREALEXANDER & EERDON180 Maiden LaneNew York, NY 10038(212) 510-7000Counsel for Amicur CuriaeInsurance EnvironmentalLitigation AssociationAugust 24.1992
Table of ContentsPage. .iTABLE OF AUTHORITIES. 2SUMMARY OF ARGUMENT .4.5ARGUMENT .STATEMENT OF FACTS AND PROCEEDINGSI.THE POLLUTION EXCLUSIONS IN THE INSURERS'POLICIES PRECLUDE COVERAGE OF ANY LIABILITYARISING OUT OF THE COUNTY'S LONG-TERM ANDINTENTIONAL DISCHAROE OF WASTE.,.,.,.,.511. THE HUNT CLUB'S UNDERLYING COMPLAINT ACTUALLYSEEKS RELIEF NOT FOR PERSONAL INJURY BUT FORPOLLUTION DAMAGE CLEARLY EXCLUDED BY THEPOLICIES.,. .9A. The Personal Injury Endorsements Provide The CountyWith Coverage Only For The Enumerated Torts, NotFor Claims Of Trespass, Nuisance, And Interference WithThe Use Of Property.121 WronKful Entry and Eviction Are FundamentallyDifferent Torts From Trespass, Nuisance, AndInterference With The Use Of Property.,.,.162. Under The Principle of@usdem Genetis, YOther ,Invasion Of The Right Of Privab Occupancy*Also Refers To Dispossession of Property.19B. The County's Willful Violation Of A Penal StatuteProvides An Additional Reason To Refuse The CountyAny PersonalInjury Coverage Under The Polides.21C. The Selected, Extra-Record Extrinsic Materials ThatThe County And Its Amid Seek To Inject Into ThisAppeal Are Inadmissible And Irrelevant.22111. PUBLIC POLICY SUPPORTSAPPLICATION OF THE. 26CONTRACTUAL LANGUAGE AS WRITTEN .CONCLUSION .28
Table Of AuthoritiesCasePageAdorable Coat Co. v. Connecticut Indemnity Co.,157 A.DJ d 366, 656 N,Y,SJd 37 (1st Dep't 1990).11Aetna Casualty & Surety Co. v. First Securities Bank,662 F. Supp. 1126 (D. Mont. 1987). 12Alcolac, Znc. v. California Union Znsuranoe Co.,716 F. Supp. 1646 (D.Md. 1989) . 9American & Foreign Insumnce Co. v. Church Schools,646 F. Supp. 628 (E.D. Va. 86) .12American Motorists Znsumnce Co. v. General Host Corp.,667 F. Supp. 1423 (D. Kan. 871, a f f d ,946 F.2d 1482 (10th Cir. 1991). ,.,., .9American Transit Znsumnce Co. v. Cornran,76 N.Y.2d 977,665 N.E.2d 486,663 N.Y.S3d 736 (1990).22 , 24Barash v. Pennsylvania Terminal Real Estate Corp.,26 N.Y.2d 77,266 N.E.2d 707,N.Y.S.2d 649 (1970).18Bates v. Cook, Znc.,616 F. Supp. 662 (M.D. Ffa. 1984) . 26Boomer v. Atlantic Cement Co.,. . . . . . . . .2026 N.Y.2d 219,267 N.E.2d 870,309 N.Y.S.2d 312 (1970)Borg-Warner Corp, v. Znsumnce Co. of North America,174 A.D.2d 24, ti77 N.Y.SPd 953 f3d Dep't 1992).leave to appeal denied,3-14 Motion No, 554 (N.Y. July 2, 1992) .,.,.,.,.,.,.,.,,.p assimBretton v, Mutual of Omaha Insurance Co.,110 A.D.2d 46,492 N.Y.S.2d 760(1st Dep't 1986).,. .Carr v. Town of Fleming,122 A.D.2d 640,604 N,YqS.2d 904(4th Dep't 1986).11.,.,. . 18
Davis v. Dennis, 43 Wash. 54,85 P.,:.n.-. . . . .1079(1906)17EAD Metallurgical, Inc. v. Aetna Casualty & Sumty Co.,905 F.2d 8 (2d Cir. 1990)7.Finci'v. American Casually Co.,323 Md. 358, 593 A.2d 1069 (1991).,,.,. . 26Forward Industries v. Rolm of New York Corp.,.19Gregory v. Tennessee Gas Pipline Co.,948 F.2d 203 (5th Cir. 1991). . 1 17123 A.D.2d 374,506 N.Y.S.2d463 (2d Dep't 1986)High Voltage Engineering Corp. v. Liberty Mutual Insurance Co.,No. 90-00666 (Mass. Super. Ct.Jan. 24, 1992). .15Kahn v. Bancamerican.Blair Corp,,327 Pa, 209, 193 A, 906 (1937). . 18Kiein v, Empire Blue Cross & Blue Shield,.23, 24.,.173 A.D.2d 1006,569 N.Y.S.2d838 (3d Dep't 1981)Kuriger v. Cramer,345 Pa. Super. 695,498 A.2d 1331. .18Leprell v. KZeSnschmidt,112 N.Y. 364, 19 N.E. 812 (1889) .16Ludlow's Sand & Gravel Co. v. Geneml Accident Insumme,No. 87.CV.1239 (N.D.N.Y. May 16,1991) .14Manifold v. Schwter,67 Ohio App. 3d 251, 586 N.E.2d 1142 (1990) . 18Martin v. Brunzelle,.,. .12, is, 20699 F. supp. 167 (N.D. ni. 1 9 s .)(1985).Morton Thtokol, Inc. v, General Accident Insurcrnce Co.,No, C.3956-86 (N.J. Super. Ct., Ch.Div. Aug,.27,.1987).Napco v. Fireman's Fund Insumnce Co.,passim
No. 90.0993 (W.D. Pa. May 22, 1991).15Nichols v. Great American Insurance Co.,169 Cal. App. 3d 766,215 Cal.Rptr. 416 (1985).11,20Northrop Corporation v. American Motorist Insurance Company,No. C710571 (Super. Ct. Cal. April 8, 1992).Pleasure Driveway & Park Dist. v. Aetna Casualty& Surety Co., 80 Ill. App. 3d1093, 400 N.E.Zd 651 (1980).1610, 11Powers Chenco, Znc. v, Federal Insumnce Co.,74 N.Y.2d 910,548 N.Eld 1301,549 N.Y.S.2d 650 (1989).6Puritan Insurance Co. v. 1330 Nineteenth Street Corp.,1984 Fire & Casualty Gas.1149 (D.D.C. 1984).2 , 13Railrood Co. v. Perkins,49 Ohio St. 326, 31 N.E. 350 (1892). .17Raymond v. The T,,St. Louis and Kansas City Railroad,57 Ohio St. 2271, 48 N.E. 1093 (1897) .17Red Ball Leasing, Inc, v. HaMbrd Accident& Indemnity Co., 916 F.2d 306(7th Cir. 1990).20Serna v. Pergament Distributors, Znc.,682 N.YS J d ,550 (3d Dep't 1992).,.,., .23. 24TechniconElectronics Corn v, AmericanHome Assurance d.,74 N.Y.2d 66,642 N.E.2d 1048,644 N.Y.S.2d 531, reeon, &?tied,74 N.Y.2d 843, 645 N.E.2d 874 (1989).Thompson.Starrett Co, v, American Mutual LiabilityInsurance Co., 276 N.Y. 266,11 N.EJd6, 7.12Titan Holdings Syndicate, Inc, v. Keene,898 F.2d 265 (1st Cir. 1990). . 16Town of Goshen v. Grange Mutual Insumnce Co.,120 N.W. 916, 424 A.2d 822 (1980) . 14, 16906 (1987).- .-iii --.-. .
Traylor v. Crucible Steel Company,192 A.D. 445,183 N.Y.S.181(1stDep't 19201, a f f d ,252 N,Y. 583,134 N.E.581 (1922). .19Union Dime Savings Bank v. Frohlich,57 A.D.2d 862,394 N.Y.S.2d 255(2d Dep't 1977).,.,.,.18Upjohn Co. v. New Hampshire Insurance Co.,438 Mich. 197, 476 N.W.2d 392 (1991). 9VanAlstyne on Behalf of "P" v. David "Q':92 A.D.2d 971,460 N.Y.S.2d 848(36 Dep't 1983).23Western Casualty & Surety Co. v. Palmyra,650 F.Supp. 981 (ED, Mo.1987). . . 10Statutes and Authorities.,.,.,,.,.,,.,,. 13EPA, Superfund Response Action Contractor Indemnification,54 Fed. Reg. 46012, 46013 (Dct. 31,1989) .,.27. 1922 N.Y. Jur. 2d, Contracts 8 223 (1982) .N.Y.Penal Law 8 10.00 (McXinney 1992).,., . 22N.Y.Real Prop, Acts. Law 8 853 (McKinney 1992) .102 Tiffany, kndlord and Tenant, 6 lSti(d ,1263., . 181B Moore's Fe&ml Practice, ΒΆ .406[8](1988) . . 25Appleman, 7 Insurance Law CI 4501.1418 Wright, Miller and Cooper, FederalPractice and Pmedure, Jurisdiction 2d6 4477 (1981).25
Legislative MaterialsEnvironmental Emergency Response Act,S. Rep. No. 848,96th Cong.,2d Sess. 1, reprinted in 1A Legislative History of theComprehensive Environmental Response,Compensation and Liability Act of 1980 . 27Statement of Chairman of State SenateCommittee on Conservation andRecreation, 1982 N.Y. Laws Ch.856 (Bill Jacket).8United States General AccountingOffice,Insumnce Liubility forCleanup Costs at Hazardous WasteSites: Hearings Befow theSubcomm. on Policy Research andInsurance of the Committee onBanking, Finance and UrbanAffairs, House ofRepresentatives, lOlst Cong., 2dSess. 60 (1990).27MiscellaneousFoggan, Lawrence, and Renberg, LookingFor Covemge In All The WmngPlaces: Personal Idury CoverageIn Environmental Actions, 3Environmental Claime Journal 291(Spring 1991). 24Ludkows Sand & Gruvel Co. v. OenemlAccident Znsumnce, No. 87.CV-1259,hearing transcript (May 13, 1991).Outboard Marine Corp. v. Liberty MutualInsurance Ca,No. 86-MR-308, hearing transcript(Ill. Cir. Ct., Lake County May 17, 1989).8 , 14.14
INDEX TO EXHIBITSExhibit No. Description1PageBorg- Warner Corp, v. Insurance Co.of North America, leave to appealdenied, 3-14 Mo. No. 554 (N.Y.July 2, 1992).Legislative History of New YorkState Bills A. 6952 and S. 7042.,.Ludlow's Sand & Gravel Co. v. GeneralAccident Ins., No. 87-CV-1239 (May 13,1991).Morton Thiokol, Znc. v. GeneralAccident Insurance Co., No. C-395686 (N.J. Super. Ct., Ch.Div. Aug. 27, 1987).Ludlow's Sand & Gravel Co., Znc. v,General Accident Znc. Co., No, 87.CV1239 (N.D.N.Y. May 16, 1991).Outboard Marine Corp, v. Liberty Muf.Ins. Co., No. 86-MR-308 (Ill. Cir Ct.,Lake County May 17, 1989).Napco v. Fitvman's Fund Ins. Co.,No. 90-0993 (W.D. Pa. May 22, 1991).High Voltage Engineering Corp, v.Liberty Mutual Ins. CO., NO. 90-00566(Mass, Super, Ct,Jan. 24, 1992).,.,,.:Nortknop Corp. v. American MotoristIns. Co., No. C 710671 (8uper.Ct. Cal.April 8, 1992).Foggan, Lawrence,and Renberg, LookingFor Coverage In All The Wrong Plaoes:Personal Injury Coverage In EnvironmentalActions, 3 Environmental ClaimsJournal291 (Spring 1991).
INTEREST OF AMICUS CURIAEThe Insurance Environmental Litigation Association ('IELA") is a tradeassociation of major property and casualty insurers. IELA was formed, in part, t oappear as amicus curiae in environmentally-relatedinsurance coverage cases and toassist courts in the determination of important insurance coverage questionspresented in such litigation. IELA members have entered into insurance contractsin New York and throughout the nation containing provisions similar to those atissue in the instant case, IELA is therefore vitally interested in the judicialinterpretation of these coverage provisions.Because of itr, members' extensive experience with the interpretation andapplication of the contract provisions before the Court, IELA has a uniqueperspective on the issues presented, Drawing on this experience, IELA's brief willshow that enforcing the t e r m of insurance contracts ae written is essential to theintegrity of the insurance underwriting process and to the promotion oflong-termenvironmental goals.IELA files this brief on behalf of Allstate Insurance Co., AmericanInternational Group, Chubb Group of Insurance Companies, CIGNA Property &Casualty Companies, Crum & Forster Corporation, Fireman's Fund InsuranceCompanies, Hanover Insurance Company, Hartford Insurance Group, HomeInsurance Company, Liberty Mutual Insurance Company, Maryland InsuranceGroup, Prudential Reinsurance Company, Royal Insurance Co., St. Paul Companies,Selective Insurance Group of America, State Farm Fire & Casualty Company, TheTravelers Insurance Companies, and United States Fidelity & Guaranty Company.Appellees Aetna Casualty & Surety Co. and Continental Insurance Co, are IELAmembers; this brief is not submitted on their behalf.
STATEMENT OF FACTS A N D PROCEED1NGS1This case involves a policyholder that intentionally deposited harmful wastesat a dumpsite. Barred from obtaining insurance coverage by the pollutionexclusions contained in itrr policies, the policyholder turns to the policies' personalinjury provisions in an attempt to create coverage for this clearly excluded liability.This Court should reject the policyholder's stratagem and uphold the trial court'sdenial of coverage.The policyholder, appellant County of Columbia, New York (the 'County"),brought this action against appellees Aetna Casualty & Surety Company ('Aetna"),Continental Insurance Company ("Continental"), and Firemen'&InsuranceCompany of Newark, New Jersey ("Firemen's") (collectively, the "Insurers"). TheCounty seeks a declaration that the Insurers are obligated under various generalliability insurance policies to defend and indemnify the County against anunderlying claim for pollution-related injury resulting from the County's intentionaldumping of harmful materials onto the ground at a landfill.In December 1981, the County and the Town of Claverack, New York (the"Town"), entered into the Columbia County Solid Waste Management Agreement,pursuant to which the County intentionallydeposited refuse and other solid wasteonto the land at a dumpsite. Slip op. at 2. The County subsequentlyleased thedumpsite, where it continued its polluting activity. id. at 2. On May 15,1986, theCounty signed a New York State Department of Environmental Conservation Orderon Consent (the "Consent Ordern),admitting to the discharge of "leachate into theIELA's statement of facb is drawn from the trial court's opinion of September30,1991 ("Slip. op,"), unless otherwise noted.
ground water. .in violation of Sectionlsl360.8(aX3)and 703.5 of 6 NYCRR."Id. at 2.On January 30, 1989, the H.K.S.Hunt Club, Inc. (the "Hunt Club"), aneighboring landowner, brought the underlying action against the County and theTown, citing the Consent Order as proof that the dumpsite was discharging leachateinto the groundwater in violation of New York law. Slip op. at 2.3, The Hunt Cluballeged that the continued dumping by the County and the Town had causedpermanent damage to its soil, surface water, and groundwater. Id. at 3. The HuntClub also alleged that the operation of the landfill constituted trespass, nuisance,and interference with the use of property. In its answer to the Hunt Club'scomplaint, the County admitted that it had signed the Consent Order and that ithad intentionally deposited the refuse and solid waste on the land. Id. at 2.3.On March 28,1990, the County brought the instant action against Aetna,Continental, and Firemen's, seeking coverage under various general liabilitypolicies issued between 1981and 1989. In response, the Insurers moved forsummaryjudgment on the grounds that the pollution exclusion clauses contained intheir policies precluded coverage for the underlying action, The Countysubsequently filed a cross motion for partial summaryjudgment.On September 30,1991, the Supreme Court, County of Columbia (Connor, J.),granted summary judgment to the Insurers. The trial court denied the Countycoverage on three separate grounds. First, the trial court held that a pollutionexclusion barring coverage for pollution except where the polluting discharge wasboth 'sudden" and 'accidental" precluded coverage because the deliberate deposit ofwaste in a landfill could not be considered "accidental." Slip op. at 6.7. &cond, thecourt denied the County coverage under an 'absolute" pollution exclusion barringcoverage for property damage "arising out of the actual, alleged or threateneddischarge, dispersal, release or escape of pollutants," since the underlying action
alleged "property damage arising from actual discharges of pollutants." Id. at 8.Finally, the trial court rejected the County's contention that 'personal injury"provision8 in the policies covering liability for the enumerated torts of "wrongfulentry or eviction or other invasion of the right of private occupancf extended to theunderlying allegations of trespass, nuisance, and interference with use of property.Id, at 7.SUMMARY OF ARGUMENTThe trial court correctly found that liability arising from the County's longterm, intentional dumping of refuse and solid waste is precluded under the pollutionexclusion barring coverage for all but "sudden and accidentalndischarges, becausethe County's intentional polluting can not be considered "accidental* under theCourt of Appeals' mandate in Technicon,infia, and Powers Ckmco, infm.Similarly, the absolute pollution exclusion, barring coverage for all pollution-relatedclaims without any exception, precludes any coverage to the County. Because theunderlying action is about pollution.related property damage, these pollutionexclusions control this w e .The County nevertheless attempts to create coverage through a roundaboutreading of the policies' personal injury coverage for liability for ''wrongfkl entry oreviction or other invasion of the right of private occupancy." The County contendsthat these provisions afford coverage for the underlying claims of trespass,nuisance,and interference with the uae of property- counts evidently included inthe underlying complaint to capitalize on a New York statute offering trebledamages for such offenses.Courts have repeatedly repudiated the County's stratagem of linkingenvironmental property damage with personal injury coverage. The enumerated
torta of 'wrongful entry" and 'eviction" are far different from the underlying claimsof trespass, nuisance, and interference with the use of property. Both "wrongfulentry" and 'eviction" require purposeful acts aimed a t the infringement ofpossessory rights. Under the principle of ejusdem generis, long recognized in NewYork, the phrase 'other invasion of the right of private occupancy" must also beinterpreted to include the element of the purposeful infringement of possessoryrights. The County's "willful violation" of New York environmental regulations is,as the trial court held, an additional reason to deny personal injury coverage in thiscase.This Court should ignore the improperly introduced and nonprobativeextrinsic evidence that the County and Opposing Amici seek to inject into thisappeal, as well as the Opposing Amici's far fetchedargument that the doctrine ofjudicial estoppel has any application here. Instead, public policy dictates that theinsurance contracts be enforced a s written -with neither the pollution exclusionclauses nor the personal injury provtsions affording any coverage for the County'sintentional polluting activities.ARGUMENTI.THE POLLUTION EXCLUSIONS IN THE INSURERS' POLICIESPRECLUDE COVERAGE OF ANY LlABlLlN ARISING OUT OF THECOUNTY'S LONG-TERM AND INTENTIONAL DISCHARGE OFWASTE.Ae the trial court correctly found, the pollution exclusions contained in thepolicies preclude coverage for any liability arising from the County's long-term,intentional dumping of refuse and solid waste onto the land.All of the policies in this case contain pollution exclusions. The pollutionexclusion in certain of the policiee bars coverage for pollution with a narrow
exception for pollution caused by discharges that were both 'sudden" andaccidental. As the Court of Appeals has stated in unmistakably clear terms:[slince the exception is expressed in the conjunctive, bothrequirements must be met for the exception to becomeoperative. Stated conversely, discharges that are eithernonsudden or nonaccidental block the exception fromnullifying the pollution exclusion.Technicon Electronics Corp. v. American Home Assur. Co., 74 N.Y2d 68,75,542N.E.2d 1048,1050,544 N.Y.S.2 d 631,533 (19891, recon. denied, 74 N.Y.2d 843,545N.E.2d 874 (1989). See also Powers Chemco, Znc. v. Federal Ins. Co., 74 N.Y.2d 910,911,548 N.E.2d 1301,1302,649N.Y.S.2d 650,661 (1989) (the 'exception to theexclusion for liability arising from pollution is not operative unless the occurrence inquestion was both 'sudden' and 'accidental"). Following Technicon and PowersChemco, this Court has recognized that, under New York law,"t1 xsnow'unmistakably clear" that the application of the 'sudden and accidentalnexception tothe pollution exclusion 'consists of two distinct inquiries, each of which must besatisfied independently as a prerequisite to coverage? Borg-Warner Corp. v.Insumnce Co. of North Amen'ca, 174 A.D.2d 24,30-31,577 N.Y.S.2d 953,957 (3d2Other policies a t issue in this case contain a so-called 'absolute" poflutionexclusion, which bare coverage for all pollution-related claims. This exclusionprovides in part that:1. {Coverageis precluded for1 bodily injury or property damagearising out of actual, alleged or thfeatened discharge, dispersal, releaseor escape of pollutants.At or from premises owned, rented, or occupied by theA,named insured;B, At or from any site or location used by or for the namedinsured or others for the handling, storage, disposal, processing ortreatment of waste.The trial court correctly held that '[slince the underlying action Complaint allegesproperty damage arising from actual discharges of pollutants, coverage is expresslyexcluded" under the policies containing the absolute pollution exclusion.Slip op. at 8.
Dep't 1992). leave to appeal denied, 3-14Mo. No. 554,slip op. (N.Y.July 2,1992)(attached hereto as Exhibit 1).Here, it is undisputed that the County intentionally discharged pollutingwaste onto the land. Slip op. a t 3. By definition, such discharges are not'accidental" and are therefore not covered. As the trial court properly held, "thedepositing of refuse and other solid waste material cannot be viewed as 'accidental'within the meaning of the exceptionnto the pollution exclusion. Id, at 6-7.The trialcourt's decision is required by binding, directly applicable precedent from this Courtand the Court of Appeals. See, e.g., Technicon, 74 N,Y.2d at 76 ("[ilnasmuch as theunderlying complaint alleges and [the policyholder's] answer concedes that itsdumping of wastes was deliberate, the occurrence cannot be 'accidental' within themeaning of the policy").' Earlier this year, this Court recognized the weight of thisprecedent by holding that "[wlhere.the discharge itself was intentional, coverageis unavailable as a matter of law." Borg.Wamner, 174 A.D.2d at 32 (emphasisadded).The trial court's conclusion that the County's discharge of pollution was not'accidentaln is dispositive of this issue. Even if this Court were to focus upon theapplicability of the "sudden" prong of the exception, however, the result would bethe same. Indeed, this Court recently recognized the temporal meaning of the term'sudden," holding that, "for a release or discharge to be 'sudden' within the meaning3Because it involves an exceation to an exclusion, the burden of rovinr!asudden and accidental discharge b on the policyholder Aa this court-recoGzedearlier this year, 'although an insurer generally m w t prove the applicability of anexclusion, it is the insur d's burden to establish the edstence of eiierage, fitere,because the existence of coverage depends entirely on the applicability of theexception to the exclusion, the insured has the duty of demonstrating that it hasbeen satisfied." Borg-Warner, 174 A.D.2d at 31 (citing precedent &om New Yorkand other jurisdictions).4Accord W MekrlluMical, Inc. v. Aetna Cas. & Sur. Co.905 F.2d 8.10-11(2d Cir, 1990) (discharge no;-addental. when complaint alleged that man;fachrer,inter alia, arranged for the disposal of waste in town landfill).
of the pollution exclusion, it must occur abruptly or quickly or 'over a short period oftime!"BorfiWarner, 174 A.D. 2d at 31 (citing Technicon and other cases). Here, asin Bore Warner,"it is undisputed that the discharge8 took place over a period ofmany years* and were therefore "nonsudden." Id. at 31.5In an attempt to escape the weight of this precedent, the County boldly ,asserts that the pollution exclusion is either "ambiguous" or somehow irrelevant inthis case because the policies containing the exclusion include among the risks-covered 'garbage or refuse dumps? The discharge of pollutants excluded by thesepolicies, claims the County, "cannot be construed to mean the covered act of placingwastes into a landfill." See Appellants' Brief ("County Brief") at 47-48,The County's argument is wholly without merit. As the trial court correctiyheld, "[tlhe fact that the dump is a covered location does not obviate the applicationof the pollution exclusion clause for claims of property damage due to contaminantdischarges from the dump." Slip op. a t 7-8. Other courts have agreed. See, e.g.,Ludlow's Sand & G w e l Co. u. General Accident Ins.,No. 87-CV-1239, transcript at22-23,30-40 (May 13,1981)(ettached hereto as Exhibit 3) (rejecting thepolicyholder's contention that the policy covered the escape of pollutants from alandfill and denying coverage to the policyholder because the discharge of pollutantswas not "sudden" under the exception to the pollution exclusion). W e the policies6The legislative history of the two New York statutes that first mandated theuse of the pollution exclusion, 1971 N.Y. Laws, Ch. 765, and then repealed thatrequirement, 1982N.Y. Lawrr, Ch. 856, confirms that, in conformity with New Yorkpublic policy, the pollution exclusion was intended to bar coverage for all f o r m ofnon-sudden pollution. See, eg., Statement of Chairman of Gtste Senate Committeeon Conservation and Remation, 1982N.Y. Laws Ch. 856 (Bill Jacket) (Exhibit 2attached hereto at A-9)Y[alt present, New York is alone in the country in iterestriction of permitting insurance to be issued to cover gradual or non-suddenpollution") (emphasis added); Memorandum of Attorney General Robert Abrams(Exhibit 2 at A-14-16) C[tlhe purpose of this bill is to amend the Insurance Law toremove the prohibition again&liability insurance for environmental pollutionresulting from gradual release of pollutants") (emphaeis added).
at issue provide coverage for a number of risks associated with the landfill, pollutionis not one of them.Moreover, the County's argument violates the fundamental principle that"exclusion clauses subtract from coverage? Weedo v. Stow-E-Brick,81 N.J. 233,405A.2d 788,795 (1979). Aa the New Jersey Supreme Court recognized, the function ofan exclusion "is to restrict and shape the coverage otherwise afforded? Weedo, 405A.2d at 790. See also Upjohn Co. u. New Hampshire Insurance Co., 438 Mich. 197,206-207, n.6,476 N.W.2d 392,596-397,n.6 (1991) ("simply stated, it is our beliefthat exclusions excludem);American Motorists Ins. Co. u. General Host Corp., 667 F.Supp. 1423,1429 (D.fCan, 1987). affd, 946 F.2d 1482 (10thCir. 1991) ("iilt is not anovel idea that exceptions to a broad blanket of coverage can be made"). TheCounty's argument it merely an attempt to distract the Court from the relevantNew York law that governs the issue. This Court should reject the County's farfetched argument.II.THE HUNT CLUB'S UNDERLYING COMPLAtNT ACTUALLY SEEKSRELIEF NOT FOR PERSONAL INJURYBUT FOR
continental insurance company, aeth'a casum & surety company and firemen's insurance company of newark, n.j., brief and appendix of amicus curiae insurance environmental litigation association in support of continental insurance company, aetna casualty 81 surety company and firemen's insurance company of newark, nj. of counsel: thomas cv. &unner
