Travelers Indem. Co. v. Dingwell

Decision Date12 May 1980
Citation414 A.2d 220
Parties12 Envtl. L. Rep. 21,072 The TRAVELERS INDEMNITY COMPANY et al. v. Richard DINGWELL et al.
CourtMaine Supreme Court

John J. O'Leary, Jr. (orally), Ralph I. Lancaster, Jr., Portland, for Travelers Ins. Co.

Thomas A. Cox, Joel Martin, Portland (orally), for Chicago Ins. Co.

Robert F. Hanson, Portland (orally), for American Policyholders Ins.

Dana W. Childs, Roderick R. Rovzar, Portland (orally), for Dingwell.

John N. Kelly, Graydon G. Stevens, Portland (orally), for intervenors-defendants Patrick J. & Bertha Sullivan.

Lawrence J. Zuckerman, Gray, for Francis F. & Ruth M. Toolin, Ronald N. & Lorette C. Maillet.

Thomas F. Monaghan, Portland, for Richard Dingwell.

Harrison L. Richardson, Ronald D. Russell, Portland, for Clark Ass'n.

Before GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ., and DUFRESNE, A. R. J.

ROBERTS, Justice.

The Travelers Indemnity Company (Travelers), the American Policyholders' Insurance Company (API), and the Chicago Insurance Company (Chicago) brought this declaratory judgment action (civil docket number CV-78-311) in Superior Court, Cumberland County to determine their obligations to defend and indemnify Richard Dingwell in a class action (Sullivan v. Dingwell, CV-77-1299) brought by residents of the Town of Gray. The class action seeks damages for contamination of the plaintiffs' well water resulting from Dingwell's operation of an industrial waste facility. The plaintiffs in the class action have intervened in the present case as defendants. The court granted plaintiffs' motion for summary judgment, pursuant to M.R.Civ.P. 56, ruling that the insurers have no duty to defend Dingwell, but making no specific ruling on their duty to indemnify. 1 Defendants Dingwell and the Sullivans appeal. We reverse the judgment.

I. Interpretation of the Insurance Contracts

Dingwell's company had a primary general liability insurance contract with Travelers from April, 1971 to April, 1978, and excess general liability policies, first with API from July, 1972 to July, 1976, and then with Chicago from July, 1977 to April, 1978, and with a third company, not a party to this action, between July, 1976 and July, 1977. The insurers contend that pollution exclusion provisions 2 in their respective policies free them from any duty to defend the class action.

All three of the insurance policies cover liability for personal injury or property damage arising out of an "occurrence." The API policy defines "occurrence" as

an accident, including continuous or repeated exposure to conditions, which results in personal injury, property damage or advertising liability neither expected nor intended from the standpoint of the insured.

The Chicago policy defines "occurrence" in similar terms. Both definitions would cover the events described in Count I of the class action if the events were neither expected nor intended, unless the events fall within the pollution exclusion clauses. Travelers has so stipulated in respect to its policies. All three of the policies obligate the insurer to defend the insured against any suit within the coverage of the policy.

There are two different pollution exclusion clauses. The relevant part of the Travelers' clause reads:

It is agreed that this policy does not apply

(a) to bodily injury or property damage arising out of any emission, discharge, seepage, release or escape of any liquid, solid gaseous or thermal waste or pollutant

(1) if such emission, discharge, seepage, release or escape is either expected or intended from the standpoint of any insured or any person or organization for whose acts or omissions any insured is liable, or

(2) resulting from or contributed to by any condition in violation of or non-compliance with any governmental rule, regulation or law applicable thereto . . . .

(Emphasis added.)

Both API and Chicago used the following:

This policy does not apply . . . (i) to personal injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalies, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge or dispersal release or escape is sudden and accidental. (Emphasis added.)

The Superior Court justice held that these two clauses have the same meaning. He found in particular that the exception to the exclusion is limited in both clauses to a release of pollutants which is "sudden and accidental," the words used in the Chicago and API policies. We find that it was error to read "sudden and accidental" into the Travelers policy. Unambiguous language in a contract must be given its plain meaning, Soper v. St. Regis Paper Co., Me., 411 A.2d 1004, 1006 (1980). The plain meaning of the Travelers exclusion is that it applies only to "expected or intended" releases of pollutants. A release may be unexpected and unintended, without being sudden and accidental. However, as discussed below, we find that a duty to defend arises from all three contracts.

II. Effect of the Pollution Exclusion on the Insurers' Duty to Defend

The "comparison test" for determining an insurer's duty to defend has been discussed by this Court, in Marston v. Merchants Mutual Insurance Company, Me., 319 A.2d 111 (1974) and American Policyholders' Ins. Co. v. Cumberland Cold Storage, Me., 373 A.2d 247 (1977). In Cumberland Cold Storage, we held that the Superior Court justice had properly

laid the underlying damage complaints alongside the insurance policy and then determined that the pleadings were adequate to encompass an occurrence within the coverage of the policy.

373 A.2d at 249. We emphasized in Cumberland Cold Storage that

the pleading test for determination of the duty to defend is based exclusively on the facts as alleged rather than on the facts as they actually are. Lee v. Aetna Casualty & Surety Co., 178 F.2d 750 (2d Cir. 1949); see cases cited in 50 A.L.R. 458, § 18 at 498-99 (1956) (footnote omitted).

. . . (T)he duty to defend is broader than the duty to pay or indemnify. . . . (T)he duty to indemnify, i. e., ultimate liability, depends . . . upon the true facts. (Citations omitted.)

373 A.2d at 249-250. 3

In the present case, Dingwell concedes that Counts II and III of the class action complaint do not give rise to a duty to defend, because those counts allege intentional acts. The focus of this appeal is on the language of Count I. The allegations in Count I include the following:

9. That among the products processed by the Defendants or utilized in the business of the Defendant are products containing or producing the chemicals trichloroethane, trichloroethylene and dimethylsulfide. . . .

14. That as a result of negligence on the part of the Defendant . . . products containing the aforesaid chemicals permeated the ground to the ground water table to the properties of the Plaintiffs resulting in the contamination of water in the Plaintiffs' wells . . . .

15. That in addition, the aforesaid contaminants have spread in the water table to lands surrounding the Defendant's processing facility to a radial distance of at least one mile and have contaminated at least one major surface watercourse (Collyer Brook) which flows into the Royal River thereby contaminating water present on properties in which members of the class have legal interest.

The Superior Court, in applying the comparison test, found that these allegations describe "an ongoing, deliberate process," and "cannot be read reasonably as describing a sudden and accidental event." It added that

(i)f the . . . complaint stated with any precision a claim which indicated that the pollution was "sudden and accidental," the Court would be bound to find coverage.

The court found no allegations of "facts which would lead . . . (it) to conclude that the pollution was 'sudden and accidental.' " The court also found that the allegations that contaminants "permeated the ground" and "spread in the water table" are

in direct contradiction to claims which support the conclusion that a sudden and accidental occurrence precipitated the alleged pollution.

We find that the Superior Court failed to distinguish between the gradual permeation of the ground, by which the water table was ultimately polluted, and the initial release of the pollutants from Dingwell's facility. The class action plaintiffs, at this point, have no way of knowing how the toxic wastes entered the ground. There may have been either intentional dumping or burial or unintentional spills, leaks, or other accidents. The allegations in Count I encompass unintentional release into the ground, and do not necessarily describe a "deliberate process." Instead of specifically alleging negligent spills, leaks, or, other negligent acts, the complaint uses a broad and conclusory allegation that the pollution was "a result of negligence."

Both pollution exclusions focus on the release of pollutants. The Chicago and API clause reads:

This policy does not apply . . . to personal injury or damage . . . arising out of . . . discharge, dispersal, release or escape . . . unless sudden and accidental. (Emphasis added.)

The Travelers clause reads:

". . . if . . . emission, discharge, seepage, release escape . . . is either expected or intended." (Emphasis added.)

The behavior of the pollutants in the environment, after release, is irrelevant to these provisions. The Superior Court erred in finding that the allegation of permeation of the ground necessarily took Count I out of Chicago and API's exception for "sudden and accidental" releases. It is possible that the releases could have been unexpected and unintended, and thus outside of Travelers' exclusion. 4

The insurers argue that even if the Superior Court had distinguished between initial release and subsequent gradual...

To continue reading

Request your trial
96 cases
  • ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • 24 Agosto 1993
    ...Co. (Alaska 1992) 841 P.2d 176, 181, footnote 8 [favorable treatment of cases holding "sudden" is ambiguous].31 In Travelers Indem. Co. v. Dingwell (Me.1980) 414 A.2d 220, 225, the court held there was a duty to defend a class action suit seeking damages for contamination of well water beca......
  • Independent Petrochem. Corp. v. Aetna Cas. & Sur.
    • United States
    • U.S. District Court — District of Columbia
    • 4 Febrero 1986
    ...to defend him, should have to try the facts in a suit against his insurer in order to obtain a defense. Travelers Indemnity Co. v. Dingwell, 414 A.2d 220, 227 (Me. 1980). The whole point to the insurance coverage duty to defend is to afford insureds some security and peace of mind when suit......
  • Queen City Farms, Inc. v. Central Nat. Ins. Co. of Omaha
    • United States
    • Washington Supreme Court
    • 9 Septiembre 1994
    ...exclusion is on the initial disposal into the environment, in this case onto the land. In a relatively early case, Travelers Indem. Co. v. Dingwell, 414 A.2d 220 (Me.1980) the Supreme Court of Maine recognized that the pollution exclusion relates to the initial polluting event, not to the s......
  • CPC Intern., Inc. v. Northbrook Excess & Surplus Ins. Co.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 3 Diciembre 1991
    ...587, 467 N.E.2d 287 (1984); Allstate Insurance Co. v. Quinn Construction Co., 713 F.Supp. 35 (D.Mass.1989); Travelers Indemnity Co. v. Dingwell, 414 A.2d 220 (Me.1980); Jonesville Products, Inc. v. Transamerica Insurance Group, 156 Mich.App. 508, 402 N.W.2d 46 (1986), appeal denied, 428 Mic......
  • Request a trial to view additional results
5 books & journal articles
  • CHAPTER 8 Comprehensive General Liability Insurance—The Pollution Exclusions
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...Delaware: E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 693 A.2d 1059 (Del. 1997). Maine: Travelers Indemnity Co. v. Dingwell, 414 A.2d 220 (Me. 1980). Ohio: M&M Metals, Inc. v. Continental Casualty Co., 2008 Ohio App. LEXIS 973 (Ohio App. Mar. 14, 2008). [33] See ISO Form CG 00 01 10......
  • CHAPTER 6 Duty to Defend and Insured Litigation
    • United States
    • Full Court Press Insurance for Real Estate-Related Entities
    • Invalid date
    ...insurers to look beyond the complaint’s allegations to avoid their obligation to defend”). Maine: Travelers Indemnity Co. v. Dingwell, 414 A.2d 220, 227 (Me. 1980). Massachusetts: Omega Flex, Inc. v. Pacific Employers Insurance Co., 78 Mass. App. Ct. 262, 937 N.E.2d 52 (2010). Michigan: Wri......
  • Chapter 5
    • United States
    • Full Court Press Business Insurance
    • Invalid date
    ...insurers to look beyond the complaint’s allegations to avoid their obligation to defend”). Maine: Travelers Indemnity Co. v. Dingwell, 414 A.2d 220, 227 (Me. 1980). Massachusetts: Omega Flex, Inc. v. Pacific Employers Insurance Co., 78 Mass. App. Ct. 262, 937 N.E.2d 52 (2010). Michigan: Wri......
  • CHAPTER 10 ISSUES IN INSURANCE COVERAGE FOR ENVIRONMENTAL LIABILITIES
    • United States
    • FNREL - Special Institute Environmental Considerations in Natural Resource and Real Property Transactions (FNREL)
    • Invalid date
    ...but not in others. An instructive contrast in approaches can be seen by comparing the decision in Travelers Indemnity Co. v. Dingwell, 414 A.2d 220 (Me. 1980), with Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 340 S.E.2d 374 (N.C. 1986). In Dingwell, the underlying lawsuit invo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT