414 A.2d 220 (Me. 1980), Travelers Indem. Co. v. Dingwell

Citation414 A.2d 220
Opinion JudgeROBERTS, Justice.
Party NameThe TRAVELERS INDEMNITY COMPANY et al. v. Richard DINGWELL et al.
AttorneyJohn 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....
Judge PanelBefore GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ., and DUFRESNE, A. R. J.
Case DateMay 12, 1980
CourtSupreme Judicial Court of Maine

Page 220

414 A.2d 220 (Me. 1980)

The TRAVELERS INDEMNITY COMPANY et al.

v.

Richard DINGWELL et al.

Supreme Judicial Court of Maine.

May 12, 1980

Page 221

Argued March 14, 1980.

Page 222

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

Page 223

Dingwell and the Sullivans appeal. We reverse the judgment.

  1. 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.

    Page 224

  2. 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...

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101 practice notes
  • 811 P.2d 1083 (Colo. 1991), 89SC646, Hecla Min. Co. v. New Hampshire Ins. Co.
    • United States
    • Colorado Supreme Court of Colorado
    • May 13, 1991
    ...anyone else, which indicates, or even demonstrates, that the injury is not in fact 'covered.' "); Travelers Indem. Co. v. Dingwell, 414 A.2d 220, 227 (Me.1980) (insurer had duty to defend because the complaint "disclose[d] a potential for liability within the coverage and contain[......
  • 522 N.E.2d 758 (Ill.App. 1 Dist. 1988), 87-0505, International Minerals & Chemical Corp. v. Liberty Mut. Ins. Co.
    • United States
    • Illinois Court of Appeals of Illinois
    • March 25, 1988
    ...A.2d 990; Allstate Insurance Co. v. Klock Oil Co. (1980), 73 A.D.2d 486, 426 N.Y.S.2d 603; Travelers Indemnity Co. v. Dingwell (Me.1980), 414 A.2d 220; Lansco Inc. v. Department of Environmental Protection (Ch.Div.1975), 138 N.J.Super. 275, 350 A.2d 520, aff'd, (App.Div.1976), 145 N.J.Super......
  • 551 N.W.2d 424 (Mich.App. 1996), 165248, Kent County v. Home Ins. Co.
    • United States
    • Michigan Court of Appeals of Michigan
    • June 21, 1996
    ...initial discharge rule in Woodhaven, id. at 162, 476 N.W.2d 374, the Court relied on three cases: In Travelers Indemnity Co. v. Dingwell, 414 A.2d 220, 225 (Me., 1980), the Supreme Court of Maine held that "[t]he behavior of the pollutants in the environment, after release, is irreleva......
  • 141 A.D.2d 124, Technicon Electronics Corp. v. American Home Assur. Co.
    • United States
    • New York New York Supreme Court Appelate Division Second Department
    • October 3, 1988
    ...on this ground in the later Oregon case of Transamerica Insurance Co. v. Sunnes, supra. In Traveler's Indem. Co. v. Dingwell, 414 A.2d 220 [Maine 1980], a class of plaintiffs had sued the insured alleging contamination. In a declaratory judgment action, the insured conceded that in two of t......
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101 cases
  • 811 P.2d 1083 (Colo. 1991), 89SC646, Hecla Min. Co. v. New Hampshire Ins. Co.
    • United States
    • Colorado Supreme Court of Colorado
    • May 13, 1991
    ...anyone else, which indicates, or even demonstrates, that the injury is not in fact 'covered.' "); Travelers Indem. Co. v. Dingwell, 414 A.2d 220, 227 (Me.1980) (insurer had duty to defend because the complaint "disclose[d] a potential for liability within the coverage and contain[......
  • 522 N.E.2d 758 (Ill.App. 1 Dist. 1988), 87-0505, International Minerals & Chemical Corp. v. Liberty Mut. Ins. Co.
    • United States
    • Illinois Court of Appeals of Illinois
    • March 25, 1988
    ...A.2d 990; Allstate Insurance Co. v. Klock Oil Co. (1980), 73 A.D.2d 486, 426 N.Y.S.2d 603; Travelers Indemnity Co. v. Dingwell (Me.1980), 414 A.2d 220; Lansco Inc. v. Department of Environmental Protection (Ch.Div.1975), 138 N.J.Super. 275, 350 A.2d 520, aff'd, (App.Div.1976), 145 N.J.Super......
  • 551 N.W.2d 424 (Mich.App. 1996), 165248, Kent County v. Home Ins. Co.
    • United States
    • Michigan Court of Appeals of Michigan
    • June 21, 1996
    ...initial discharge rule in Woodhaven, id. at 162, 476 N.W.2d 374, the Court relied on three cases: In Travelers Indemnity Co. v. Dingwell, 414 A.2d 220, 225 (Me., 1980), the Supreme Court of Maine held that "[t]he behavior of the pollutants in the environment, after release, is irreleva......
  • 141 A.D.2d 124, Technicon Electronics Corp. v. American Home Assur. Co.
    • United States
    • New York New York Supreme Court Appelate Division Second Department
    • October 3, 1988
    ...on this ground in the later Oregon case of Transamerica Insurance Co. v. Sunnes, supra. In Traveler's Indem. Co. v. Dingwell, 414 A.2d 220 [Maine 1980], a class of plaintiffs had sued the insured alleging contamination. In a declaratory judgment action, the insured conceded that in two of t......
  • Free signup to view additional results