Powers Chemco, Inc. v. Federal Ins. Co.

• Decision Date: 21 November 1989
• Citation: 548 N.E.2d 1301,549 N.Y.S.2d 650,74 N.Y.2d 910
• Parties: , 548 N.E.2d 1301 POWERS CHEMCO, INC., Appellant, v. FEDERAL INSURANCE CO., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 650

549 N.Y.S.2d 650

74 N.Y.2d 910, 548 N.E.2d 1301

POWERS CHEMCO, INC., Appellant, v. FEDERAL INSURANCE CO., Respondent.

Court of Appeals of New York.

Nov. 21, 1989.

George Berger, Judith S. Roth, Emery M. Schweig and David B. Schacher, New York City, for appellant.

David A. Schulz, John J. Sheehy, Nancy A. Brown and Jane F. Golden, New York City, for respondent.

Paul R. Koepff, New York City, Thomas W. Brunner, James M. Johnstone and John W. Cavilia, Washington, D.C., for Ins. Environmental Litigation Ass'n, amicus curiae.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 144 A.D.2d 445, 533 N.Y.S.2d 1010, should be affirmed, with costs.

This appeal involves a general comprehensive liability insurance policy containing the same "pollution exclusion" clause, and the same exception for "sudden and accidental" dispersals, that we construed in Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66, 544 N.Y.S.2d 531, 542 N.E.2d 1048. In Technicon, we noted that the exception to the exclusion for liability arising from pollution is not operative unless the occurrence in question was both "sudden" and "accidental" (id., at 75, 544 N.Y.S.2d 531, 542 N.E.2d 1048).

Plaintiff here is seeking a declaration that defendant insurer is obligated to pay "all expenses which plaintiff has paid or will have to pay" in connection with a consent order issued by the Department of Environmental Conservation to decontaminate and restore its property. The action arose out of the leaching of hazardous wastes which were allegedly disposed by plaintiff's predecessor's: (1) "burying drums containing the wastes," (2) "dumping waste liquids from 55-gallon drums into open pits and then disposing of the drums in the pit," and (3) discharging "wastes through a pipe into pits at the site." In other words, plaintiff seeks to be indemnified for intentional discharges of waste, leading to the ultimate pollution of the environment. Such an "occurrence," resulting from purposeful conduct, cannot be considered "accidental" under our analysis in Technicon (id.).

We also reject plaintiff's contention that since it was not the actual polluter, but merely inherited the problem from the prior landowner, the pollution exclusion clause cannot bar its present insurance claim. Simply put, there is nothing in the language of the pollution exclusion clause to suggest that it is not applicable when liability is premised on the conduct of someone other than...