Truck Ins. Exchange v. Pozzuoli

• Decision Date: 03 August 1993
• Docket Number: No. D016099,D016099
• Citation: 17 Cal.App.4th 856,21 Cal.Rptr.2d 650
• Court: California Court of Appeals Court of Appeals
• Parties: TRUCK INSURANCE EXCHANGE, Plaintiff and Respondent, v. Peter POZZUOLI et al., Defendants and Appellants.

Page 650

21 Cal.Rptr.2d 650

17 Cal.App.4th 856

TRUCK INSURANCE EXCHANGE, Plaintiff and Respondent, v. Peter POZZUOLI et al., Defendants and Appellants.

No. D016099.

Court of Appeal, Fourth District, Division 1, California.

Aug. 3, 1993.

Review Denied Nov. 17, 1993.

Whitesell, Ralls & Stroh and Herbert A. Stroh, Glendale, for defendants and appellants.

Chapin, Fleming & Winet, Peter C. Ward and Vonnie L. Hansen, San Diego, for plaintiff and respondent.

NARES, Associate Justice.

Peter and Adelia Pozzuoli (Insureds) appeal from a judgment in favor of Truck Insurance Exchange (Insurer). Insureds claim language in a "pollution exclusion" clause is ambiguous, and should be construed in favor of Insureds. ¹ The trial court found the language unambiguous, and granted summary judgment in favor of Insurer. We affirm.

BACKGROUND

In December 1985, the Insureds purchased the Parkway Car Wash in Escondido a facility that also sold gasoline. The car wash included three underground gasoline storage tanks which were connected to the gasoline pumps. Insureds purchased a comprehensive liability policy for the business which was issued by Insurer.

The policy issued to Insureds by Insurer provided for liability coverage and defense of lawsuits arising from an "occurrence" or "an event, or series of events, including injurious exposure to conditions, proximately caused by an act or omission of the insured" resulting in damages which are "neither expected nor intended" by Insureds.

The policy contained a standard "pollution exclusion" clause limiting coverage. The clause excluded coverage for property damage "arising out of the discharge, dispersal, release or escape of ... liquids or ... waste materials or other ... contaminants ... into or upon the land, ... but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental."

The policy further defined "accidental" as "neither expected nor intended by the insured," and defined "sudden" as "not continuous or repeated in nature."

The "occurrence" here is long-term leakage of gasoline from one underground storage tank on the property purchased by Insureds in December 1985. Insureds did not discover the leakage until September 1986. While the leakage may have been going on since before Insureds purchased the property, it was stipulated below that the leakage had been going on for at least 60 days.

The trial court determined the word "sudden" was not ambiguous, that it had a temporal meaning, and that a leak of at least 60 days' duration was "clearly not sudden, under a reasonable interpretation of that term."

Having determined that the exception to the pollution exclusion clause did not apply to the leakage in this case, the court entered summary judgment for Insurer.

STANDARD OF REVIEW

The appeal presents for review a decision of the trial court on a pure question of law, the interpretation of the language in an insurance policy. We thus determine the question de novo, under a nondeferential standard.

DISCUSSION

The California Supreme Court has provided guidance for construing insurance policy language in AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at pages 821-822, 274 Cal.Rptr. 820, 799 P.2d 1253:

"Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ.Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The 'clear and explicit' meaning of these provisions, interpreted in their 'ordinary and popular sense,' unless 'used by the parties in a technical sense or a special meaning is given to them by usage' (id., § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning."

Here, of course, the parties clearly intended, as the policy language unambiguously states, that "discharge, dispersal, release or escape of ... liquids or ... waste materials or other ... contaminants ... into or upon the land" would be excluded from coverage. The exception to this exclusion is a case where the discharge is "sudden and accidental." In other words, precisely the situation here involved, a leakage of extended duration, must be deemed to have been intentionally excluded from coverage by the parties. ²

The principles set forth in AIU have been followed in the recent case of Shell Oil Co. v. Winterthur Swiss Ins. Co., supra, 12 Cal.App.4th 715, 15 Cal.Rptr.2d 815. That case, involving coverage for pollution extending for over 30 years at the Rocky Mountain Arsenal in Colorado, also involved policy language setting forth a "pollution exclusion." Some of the policies at issue "stated that the 'exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.' (Italics added.)" (Id. at p. 753, 15 Cal.Rptr.2d 815.)

There, the insureds argued, as here, "that 'sudden' is ambiguous and that we should construe it to cover unexpected or unintended events without any temporal limitation." (Shell Oil Co. v. Winterthur Swiss Ins. Co., supra, 12 Cal.App.4th at p. 752, 15 Cal.Rptr.2d 815, italics added.) The court rejected that assertion, and held instead that "in the phrase, 'sudden and accidental,' 'accidental' conveys the sense of an unexpected and unintended event, while 'sudden' conveys the sense of an unexpected event that is abrupt or immediate in nature. 'Sudden and accidental' is not ambiguous if we give the words their full significance. A court should not make a phrase ambiguous by unreasonably truncating a word's meaning." ³ (Id. at p. 755, 15 Cal.Rptr.2d 815.)

Just as the Shell Oil court refused to create ambiguity in the phrase "sudden and accidental," there is no need for us to create ambiguity by "unreasonably truncating" the meaning of the single word "sudden." This is particularly true here, as distinguished from the other cases discussed in which the policy itself does not define the term used. In this case, we need not go outside the policy language, for the policy itself does define "sudden" as "not continuous." Any continuous event, whether it be of 30 years' or 2 months'...