Krawczewski v. Western Cas. and Sur. Co.
| Decision Date | 05 October 1993 |
| Docket Number | No. C3-93-672,C3-93-672 |
| Parties | Richard KRAWCZEWSKI, et al., Respondents, v. The WESTERN CASUALTY AND SURETY COMPANY, a Kansas corporation, Appellant, Western National Mutual Insurance, et al., Defendants, National Indemnity Co., a Nebraska corporation, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The term "release" in the insurance policies' pollution exclusion clauses refers to the entry of contaminants into the ground water, not the release of contaminants from barrels.
2. As a matter of law, the release in the present case was not sudden and accidental.
Lauren Lonergan, H. Torbjorn Svensson, Briggs and Morgan, P.A., Minneapolis, for respondent.
Carole Lofness Baab, Richard J. Chadwick, Chadwick, Johnson & Condon, P.A., Minneapolis, for Western Cas. and Sur. Co.
John H. Ramstead, Borkon, Ramstead, Mariani & Letourneau, Ltd., Minneapolis, for Nat. Indem. Co.
Considered and decided by HUSPENI, P.J., and SCHUMACHER and SHORT, JJ.
This appeal is taken from the district court's grant of summary judgment to respondents in this declaratory judgment action and the court's certification of two questions. We reverse the summary judgment and answer the certified questions.
Raymond Krawczewski was the founder and owner of a waste hauling business which he operated as a sole proprietorship under variations of the name "Red Arrow." In 1966, Raymond and his wife, Helen, purchased a 60-acre parcel of land in White Bear Township. On the parcel was a five-acre area that had been used as a town dump, primarily for the disposal of household trash. After purchasing the property, Raymond and Helen continued to allow dumping of household trash at the dump site. In addition, Red Arrow occasionally took waste materials from Reynolds Aluminum Company and Whirlpool Corporation to the dump site.
Some of the drums from Reynolds included oil that was used in Reynolds' machinery. It was Raymond's practice to sell the oil to an oil salvage company and to sell the empty drums as scrap. The drums from Whirlpool contained a variety of materials, including paint. When possible, Raymond would sell the contents of the drums and sell the drums as scrap. Some drums' contents could not be sold. These drums were kept at the dump site.
In 1973, the drums were buried by order of White Bear Township. The drums were sealed, placed upright in the dump site and covered with dirt by bulldozers. The dump site was closed in 1973. After that time, none of the Red Arrow entities hauled waste to the dump site.
Following Raymond's death in 1981, Helen, with their sons Richard and Thomas, operated Red Arrow as a partnership. In July of 1986, Red Arrow received a request for response action (RFRA) from the Minnesota Pollution Control Agency (MPCA). According to the RFRA, the ground water at the dump site has been contaminated with hazardous substances.
The dump site is located above a main ground water aquifer. In addition, there are layers of perched 1 ground water within a few feet of where the drums were buried. According to respondents' expert, it took the contaminants about one year to reach the perched ground water. The contaminants have continued to migrate downwards and have reached the main aquifer.
National Indemnity issued a general liability policy to Raymond L. Krawczewski d/b/a Red Arrow Waste Disposal; the policy provided coverage from January 1, 1979, to January 1, 1982. Western Casualty provided general liability and umbrella liability insurance to the Red Arrow partnership from January 1, 1983, until January 1, 1986. Prior to National Indemnity's coverage period, Raymond Krawczewski and the Red Arrow sole proprietorship were insured by Western National Mutual Insurance Company, which has settled the coverage claims against it.
Under the comprehensive general liability insurance coverage, the Western Casualty policies provide that the insurer
will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * *
B. property damage to which this insurance applies, caused by an occurrence, and The Western shall have the right and duty to defend any suit against the insured seeking damages on account of such * * * property damage, even if any of the allegations of the suit are groundless, false or fraudulent * * *.
"Occurrence" is defined as "an accident, including continuous or repeated exposure to conditions, which results in * * * property damage neither expected nor intended from the standpoint of the insured." The Western Casualty policies exclude coverage for
property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, 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, dispersal, release or escape is sudden and accidental.
The National Indemnity policies contained provisions virtually identical to those found in the Western Casualty policies.
When the MPCA issued the RFRA, respondents sought insurance coverage from various insurers, including Western Casualty and National Indemnity. Respondents commenced the present declaratory judgment action seeking a determination of the rights and liabilities of the parties under the various insurance policies. National Indemnity moved for summary judgment on the claims against it, asserting, inter alia, that the pollution exclusion contained in its policies barred coverage in this case. Respondents moved for summary judgment on the issue of the insurers' duty to defend. Western Casualty moved for summary judgment, asserting, inter alia, that its pollution exclusion clause barred coverage.
The trial court granted respondents' motion with respect to the duty to defend, denied the insurers' motions for summary judgment, and certified the following issues to this court:
1. Whether the "release" referred to in the "sudden and accidental" exception to the pollution exclusion clause in the insurance policies issued by the appellants refers to the manner of release of contaminants into the ground water or the manner of release of contaminants from the barrels.
2. Assuming that "release" refers to the manner of release of contaminants into the ground water, whether, as a matter of law, the release of contaminants was not "sudden" within the meaning of the "sudden and accidental" exception to the pollution exclusion clause.
1. Does the release referred to in the pollution exclusion clause refer to the entry of contaminants into the ground water or the escape of contaminants from the barrels in which they had been buried?
2. If the release refers to entry into the ground water, can the release in the present case be deemed "sudden" for purposes of the "sudden and accidental" exception to the pollution exclusion clause?
3. Did the trial court err in holding Western Casualty and National Indemnity must defend respondents?
Summary judgment is appropriate when there is no genuine issue as to any material fact and a party is entitled to a judgment as a matter of law. Minn.R.Civ.P. 56.03. A material fact is one which will affect the result or the outcome of the case depending on its resolution. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976) (per curiam). If genuine issues of material fact exist, the fact that the parties have brought cross-motions for summary judgment will not obviate the need for trial of the factual questions. Home Mut. Ins. Co. v. Snyder, 356 N.W.2d 780, 783 (Minn.App.1984).
In reviewing a summary judgment, this court must determine whether there are any genuine issues of material fact and whether the trial court correctly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). The facts must be viewed in the light most favorable to the party against whom summary judgment was granted. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn.1982).
I. Release
A. The first question certified by the trial court asks whether the release referred to in the "sudden and accidental" exception to the pollution exclusion clause refers to the release of chemicals from the buried drums or the release of those chemicals into the ground water.
In Sylvester Bros. Dev. Co. v. Great Central Ins. Co., 480 N.W.2d 368 (Minn.App.1992), pet. for rev. denied (Minn. Mar. 26, 1992) (Sylvester I ), this court addressed the question of what...
To continue reading
Request your trial
-
Grindheim v. Safeco Ins. Co. of America
...was neither sudden nor accidental when the insured intentionally placed waste into unlined soil. In Krawczewski v. Western Casualty & Surety Co., 506 N.W.2d 656 (Minn.Crt.App.1993), however, the court found the "release" to be the entry of contaminants into the ground water, not the initial......
-
SnyderGeneral Corp. v. Century Indem. Co.
...of pipe to be sudden). 13 Bell Lumber & Pole Co. v. U.S. Fire Ins. Co, 60 F.3d 437, 443 (8th Cir.1995); Krawczewski v. Western Cas. & Sur. Co., 506 N.W.2d 656, 659 (Minn.Ct.App.1993). 14 Although the question was presented in Upjohn, the Michigan Supreme Court decided the case without reach......
-
American States Ins. v. Mankato Iron & Metal
...pollution exclusion is unambiguous; the term "sudden" has a temporal connotation of "abruptness." Krawczewski v. Western Cas. & Surety Co., 506 N.W.2d 656 (Minn.Ct.App. 1993); Board of Regents, 503 N.W.2d at 491 (Minn.Ct.App.1993); Sylvester I, 480 N.W.2d at 375-76. Thus, the Minnesota Cour......
-
Domtar, Inc. v. Niagara Fire Ins. Co.
...until the contaminants reach the groundwater, "which is the property of a third party, the state." Krawczewski v. Western Cas. & Sur. Co., 506 N.W.2d 656, 659 (Minn.App.1993), review denied (Minn. Nov. 23, 1993). Expenses that must be incurred to remedy contamination to an insured's own pro......