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Emerson Electric Co. v. Aetna Casualty & Surety Company

January 16, 2001

EMERSON ELECTRIC CO., APPLETON ELECTRIC COMPANY, AUTOMATIC SWITCH COMPANY, BRANSON ULTRASONICS CORPORATION, COMMERCIAL CAM CO.,INC., COPELAND CORPORATION, EMERSON POWER TRANSMISSION CORPORATION, MIDWEST COMPONENT, INC., METALOY, INC., MICRO MOTION, INC., PEPT CORPORATION (FORMERLY SKIL CORPORATION), RIDGE TOOL COMPANY, THERM-O-DISC INCORPORATED AND WESTERN FORGE CORPORATION, PLAINTIFFS-APPELLANTS,
v.
AETNA CASUALTY & SURETY COMPANY, ALLSTATE INSURANCE COMPANY (AS SUCCESSOR BY MERGER TO NORTHBROOK EXCESS & SURPLUS INSURANCE COMPANY), AMERICAN CASUALTY COMPANY OF READING, PA., AMERICAN HOME ASSURANCE COMPANY, AMERICAN INTERNATIONAL UNDERWRITERS (AIU) INSURANCE COMPANY, CALIFORNIA UNION INSURANCE COMPANY, CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, CERTAIN UNDERWRITERS OF LLOYD'S LONDON, CHICAGO INSURANCE COMPANY, CNA INSURANCE COMPANY, COLUMBIA CASUALTY COMPANY, COMMERCIAL UNION INSURANCE COMPANY (FORMERLY EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY), THE CONTINENTAL INSURANCE COMPANY (AS ITSELF AND AS SUCCESSOR TO HARBOR INSURANCE COMPANY), CONTINENTAL CASUALTY, COMPANY EMPLOYER'S CASUALTY COMPANY, EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD.,EMPLOYERS REINSURANCE CORPORATION, EXCESS INSURANCE COMPANY, LTD., FEDERAL INSURANCE COMPANY, FIRST STATE INSURANCE COMPANY, GRANITE STATE INSURANCE COMPANY, HARTFORD ACCIDENT & INDEMNITY COMPANY, HIGHLANDS INSURANCE COMPANY, THE HOME INSURANCE COMPANY, THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, INTERNATIONAL SURPLUS LINES INSURANCE COMPANY, INTERSTATE FIRE & & CASUALTY COMPANY, LEXINGTON INSURANCE COMPANY, LIBERTY MUTUAL INSURANCE COMPANY, NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., NORTH STATE REINSURANCE CORPORATION, REPUBLIC INSURANCE COMPANY, TRANSPORT INSURANCE COMPANY (AS SUCCESSOR OF THE LIABILITIES OF TRANSPORT INDEMNITY COMPANY), THE TRAVELERS INSURANCE COMPANY, UNITED STATES FIRE INSURANCE COMPANY, WESTCHESTER INSURANCE COMPANY (AS SUCCESSOR TO INTERNATIONAL INSURANCE COMPANY), WESTPORT INSURANCE CORPORATION (AS SUCCESSOR TO PURITAN INSURANCE COMPANY, FORMERLY MANHATTAN FIRE AND MARINE INSURANCE COMPANY), AND ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Gordon

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.

HONORABLE WILLIAM MADDUX, JUDGE PRESIDING.

These three consolidated appeals arise from a declaratory judgment action initially filed by plaintiff Emerson Electric Co. (Emerson) and 15 of its subsidiaries against 57 insurers. In their suit, plaintiffs sought a determination that the insurers owed coverage for liabilities resulting from environmental contamination at 60-some sites throughout the United States. In September 1997, six months after filing their second amended complaint, plaintiffs moved for summary judgment against one of the defendants, Republic Insurance Company (Republic), as to one of the contamination sites, in Hatfield, Pennsylvania. Subsequently a group of defendants, including Republic, Commercial Union Insurance Company (Commercial Union), and The Home Insurance Company (Home) moved for summary judgment as to the contamination sites at Erie and York, Pennsylvania, with defendant Central National Insurance Company of Omaha (Central National) joining only the motion as to the York site. Republic and Home also moved for summary judgment as to a fourth site, at Maysville, Kentucky, and Republic moved for summary judgment as to a fifth site, at Dixiana, South Carolina.

In February 1998 the trial court denied plaintiffs' motion for summary judgment against Republic as to the Hatfield, Pennsylvania, site. The court subsequently certified that interlocutory order for appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), certifying the following question for appeal: "[D]id Plaintiffs satisfy the burden of proving an 'occurrence,' as defined in Defendants' policies?" Plaintiffs applied for leave to appeal, which this court granted. That appeal is No. 98-4762.

In orders entered in the latter part of 1998, the trial court granted summary judgment in favor of defendants as to the other four sites: Erie and York, Pennsylvania; Maysville, Kentucky; and Dixiana, South Carolina. Specifically, the court granted summary judgment in favor of: (1) Republic as to the sites in Erie and York, Pennsylvania, Maysville, Kentucky, and Dixiana, South Carolina; (2) Home as to the Erie and York sites and the Maysville, Kentucky, site; (3) Commercial Union as to the Erie and York sites; and (4) Central National as to the York site. In a series of orders entered December 10, 1998, the trial court made all but one of those judgments appealable pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Plaintiffs' appeal of those judgments, filed December 21, 1998, is docketed at No. 98-4780. On January 7, 1999, the trial court made the remaining judgment (the granting of summary judgment in favor of Home as to the York, Pennsylvania, site) appealable pursuant to Rule 304(a). Plaintiffs' appeal from that judgment is docketed at No. 99-244.

Four plaintiffs are involved in the instant appeals. They are Emerson Electric Company (Emerson), Emerson Power Transmission Corporation (Emerson Transmission), Ridge Tool Company (Ridge Tool), and Therm-O-Disc, Incorporated (Therm-O-Disc). The appeals at bar involve these plaintiffs' claims for coverage against the four previously identified defendants (Republic, Home, Commercial Union, and Central National) for liabilities arising from damage at five contamination sites which, as noted, are at Hatfield, York, and Erie Pennsylvania; Maysville, Kentucky; and Dixiana, South Carolina.

For the reasons set forth below, we affirm the trial court's granting of summary judgment in favor of Home and Commercial Union as to the Erie, Pennsylvania, site (appeal No. 98-4780), and in favor of Home (appeal No. 99-244) and Commercial Union (appeal No. 98-4780) as to the York, Pennsylvania, site; we affirm the granting of summary judgment in favor of Republic as to its 1984-1985 policy with regard to the Erie and York sites (appeal No. 98-4780); and we affirm the granting of summary judgment in favor of Central National as to the York site (appeal No. 98-4780).

We reverse the trial court's granting of summary judgment in favor of Republic as to its 1983-1984 policy with regard to the York and Erie sites (appeal No. 98-4780); we reverse the granting of summary judgment in favor of Republic and Home as to the Maysville, Kentucky, site (appeal No. 98-4780); we reverse the granting of summary judgment in favor of Republic as to the Dixiana, South Carolina, site (appeal No. 98-4780); and we reverse the denial of Emerson's motion for summary judgment against Republic as to the Hatfield, Pennsylvania, site (appeal No. 98-4762), and remand for further proceedings consistent with this opinion.

BACKGROUND

This case began in March 1993 with the filing of plaintiffs' initial complaint for declaratory judgment and other relief. Plaintiff Emerson Electric Company (Emerson) and 15 of its subsidiaries filed suit against 57 insurers seeking coverage under certain comprehensive general liability (CGL) policies issued by defendant insurers from at least 1941 to 1985. The initial complaint was predicated upon underlying actions charging plaintiffs with liability for environmental property damage at 60-some sites located in 26 states. Plaintiffs sought coverage for that liability pursuant to the defense and indemnity obligations in defendant insurers' policies. As the litigation progressed, the number of parties and the number of sites diminished, primarily through settlements and dismissals.

Plaintiffs' second amended complaint for declaratory judgment, filed in 1997, contains essentially the same allegations as their initial and first amended complaints. In the second amended complaint, Emerson and 13 of its subsidiaries (hereinafter referred to collectively as Emerson or plaintiffs) sued some 37 insurers seeking coverage under certain primary and excess liability policies issued since 1941. The second amended complaint was predicated upon underlying actions charging plaintiffs with liability for environmental property damage at some 47 sites in 22 states. *fn1 Plaintiffs allege that they have incurred more than $18.4 million in defense costs and damages, and they anticipate "significant further expenditures." According to plaintiffs, with the exception of one defendant, Hartford Accident & Indemnity Company, which paid $2,617.73 to the Skil Corporation (now plaintiff PEPT Corporation) in connection with defense costs associated with a site in Indiana, no defendant has paid any amount to plaintiffs in connection with any site, nor has any defendant assumed the defense of any plaintiff in connection with any site.

Included in the second amended complaint and its attached exhibits are descriptive listings of the parties and the contamination sites, as well as a listing of the insurance policies at issue. Because the instant appeals involve just four plaintiffs and their claims for coverage against four defendants as to five sites, descriptions of only those parties and sites, as well as the relevant insurance policies, are included in the information below.

The parties

Emerson, the lead plaintiff and parent of the remaining plaintiffs, is a Missouri corporation with its principal place of business in Ferguson, Missouri, a suburb of St. Louis. Emerson's 40 divisions and subsidiaries manufacture a wide range of electric, electromechanical, and electronic products for industry and consumers, including electric motors, tools, industrial machinery, control devices, and computer support systems. Since the 1950s, Emerson has grown largely through the acquisition of existing businesses.

The remaining plaintiffs involved in these appeals are: Emerson Power Transmission Corporation (Emerson Transmission), a Delaware corporation with its principal place of business in Ithaca, New York; Ridge Tool Company (Ridge Tool), an Ohio corporation with its principal place of business in Elyria, Ohio; and Therm-O-Disc, Incorporated (Therm-O-Disc), an Ohio corporation with its principal place of business in Mansfield, Ohio.

As each of the plaintiff subsidiaries was acquired, Emerson's practice over the years was to immediately add that subsidiary as a named insured under the Emerson insurance policies.

The four defendants involved in the instant appeals are: (1) Republic Insurance Company (Republic), a Delaware corporation with its principal place of business in Dallas, Texas; (2) Central National Insurance Company of Omaha (Central National), a Nebraska corporation with its principal place of business in Omaha; (3) Commercial Union Insurance Company (Commercial Union), a Massachusetts corporation with its principal place of business in Boston; and (4) The Home Insurance Company (Home), a New Hampshire corporation with its principal place of business in New York, New York.

Insurance policies and the pollution exclusion

The insurance policies at issue in these appeals are excess or umbrella comprehensive general liability (CGL) policies providing coverage at various contamination sites in more than one state. The relevant policies issued by Republic are No. CDU 15502, effective from November 1, 1983, to November 1, 1984; and No. CDU 16724, effective from November 1, 1984, to November 1, 1985. Republic's policies are implicated by the trial court's judgments as to all five of the sites at issue in these appeals: Maysville, Kentucky; Erie, York, and Hatfield, Pennsylvania; and Columbia (Dixiana), South Carolina. Central National's policies, which are implicated at only the York, Pennsylvania, site, are Nos. CNS 13-3071 and CNS 13-3073, both of which were issued to the A.B. Chance Co. (Chance), a former Emerson subsidiary, for the period November 1, 1982, to November 1, 1985. The policies issued by Commercial Union are No. EK-8083-001 for the period November 1, 1971, to November 1, 1974; and No. EK-8083-007 for the period November 1, 1974, to October 1, 1976. Commercial Union's policies are implicated at both the Erie and York sites in Pennsylvania. Finally, the Home policies, which are implicated by judgments as to the sites in Erie and York, Pennsylvania, and Maysville, Kentucky, provided coverage for the period from November 1, 1973, to October 1, 1976.

All but one of these policies contain essentially the same standard form pollution exclusion. That exclusion, as stated in Republic policy No. CDU 16724, provides as follows:

"It is agreed that this policy does not apply to liability for personal injury or property damage arising out of the discharge, dispersal, release, escape, or seepage of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste material or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water, unless such discharge, dispersal, release or escape is sudden and accidental." (Emphasis added.)

Thus on the face of these policies there is no coverage for damage resulting from a discharge or release of pollutants unless the discharge is both sudden and accidental. Republic policy No. CDU 15502, effective November 1, 1983, to November 1, 1984, contains the same exclusion but with the words "sudden and" omitted. Hence under that exclusion, the requirement that the discharge be both sudden and accidental is removed; the release of pollutants need only be accidental.

Environmental damage sites

As noted, there are five contamination sites at issue in the instant appeals. According to the complaint, the site in Erie, Pennsylvania, is the Millcreek Dump, which was operated from 1941 until it was closed by the state in 1981. Urick Foundry, a division of plaintiff Ridge Tool, allegedly sent foundry sand to the Millcreek site during the period from 1973 to 1981. Metals, solvents, and PCBs were found in soil and groundwater at the site. The EPA sued Emerson over the Millcreek matter, as did neighboring landowners. According to Emerson, it has incurred expenses of $1.9 million in connection with this site.

A second Pennsylvania site is a landfill in York to which Chance, an Emerson subsidiary from 1975 to 1987, allegedly sent waste materials. According to a former employee, wastes were removed by a contractor from the Chance facility in 55-gallon drums and taken to the landfill. When Emerson sold a majority share of Chance in 1987, Emerson retained Chance's liability for environmental property damage which occurred prior to the sale. Subsequently, Chance was named as a potentially responsible party by the EPA in connection with the York site. Emerson asserts that it has incurred expenses of $432,000 in connection with that site.

Also in Pennsylvania is the Hatfield site, a contaminated aquifer running beneath the Hatfield area. Various solvents, including TCE, have been found in the aquifer, which is served by the North Penn Water Authority. Brooks Instruments (Brooks), an Emerson division which was acquired in 1964, has been named as a potentially responsible party as to the Hatfield site.

The fourth site at issue in these appeals is in Dixiana Township, South Carolina. The EPA filed a cost recovery action against Therm-O-Disc, an Emerson subsidiary, and certain other companies which allegedly shipped materials to the Dixiana site, where various contaminating compounds have been discovered. The Therm-O-Disc facility in Aiken, South Carolina, allegedly sent contaminants including perchloroethylene (PCE), waste oil, acetone and glycol to the site between 1978 and 1980. Emerson estimates that it has spent more than $1.7 million in connection with this site.

The fifth contamination site is Emerson Transmission's Browning Manufacturing Division (Browning) facility in Maysville, Kentucky. The Browning facility, which has operated for about 100 years, manufactures power transmission components including sprockets, pulleys and bushings. Groundwater and soil at this site have been found to contain solvents, volatile organic compounds, and total petroleum hydrocarbons. The Kentucky Department for Environmental Protection is overseeing cleanup of the site. According to Emerson, it has spent more than $1.9 million in connection with this site.

Summary judgment proceedings

Subsequent to the filing of plaintiffs' first amended complaint and prior to the filing of their second amended complaint, several defendants, including Republic and Commercial Union, moved for partial summary judgment seeking a determination that many of the claims for which plaintiffs sought coverage did not constitute recoverable "damages." According to defendants, their policies provided coverage for sums which the insured was obligated to pay as damages, which defendants asserted were legal, compensatory damages only. They argued that most of the claims for which Emerson sought relief were for costs expended to comply with government-mandated cleanup of contamination. Such claims, defendants contended, were for injunctive or specific-performance relief imposed under an equitable mandate to protect the broad public interest, and thus were equitable in nature and not within the meaning of "damages" as stated in their policies. Defendants also asserted that, under Illinois choice-of-law rules, Missouri law applied to all of the sites in this case, and that under Missouri law, amounts paid for reimbursement of governmental response and cleanup costs are equitable in nature and thus are not covered "damages."

Resolution of defendants' motion required a determination as to the choice of law with respect to each of the sites. After seeking additional discovery from all parties, the trial court held that the law of that state where each site was located would apply. Since none of the sites was located in Missouri, defendants' motion for partial summary judgment under Missouri law was denied as moot. In reaching its choice-of-law decision, the court noted that under a significant-contacts analysis, Missouri had the most significant contacts with the insurance contracts at issue. However, the court chose instead to apply a "public policy" analysis which emphasized each state's strong interest in cleaning up environmental damage on the sites within its borders, pursuant to its own laws.

More than two years later Emerson moved for reconsideration of this 1996 ruling, *fn2 seeking the application of the law of a single state rather than the law of the site. According to Emerson, the single state whose law should be applied was Illinois. In opposing Emerson's motion, Republic argued that the trial court was not required to choose the law of a single state. However, Republic also restated its position that under a "most significant contacts" approach, Missouri law should apply. Commercial Union argued that the trial court should decline to revisit the choice-of-law issue "[b]ecause of the substantial prejudice to defendants if choice of law is altered at this late stage in the litigation." Notwithstanding this argument, Commercial Union stated that if the court were to revisit the issue, Missouri law should be applied because "Missouri is the state with the most significant contacts to this litigation." Neither Home nor Central National opposed Emerson's motion. The trial court denied the motion for reconsideration.

Subsequent to the filing of plaintiffs' second amended complaint, several defendants including the four involved in these appeals (Republic, Home, Central National and Commercial Union) filed another group of summary judgment motions which, in accordance with the trial court's earlier choice-of-law determination, were predicated upon the respective laws of each of the individual sites. Those motions form the basis for two of the three instant appeals, Nos. 98-4780 and 99-244. As noted, a separate summary judgment motion was filed by plaintiffs against defendant Republic and is the basis for the third appeal, No. 98-4762, which will be discussed later in more detail.

This round of defendants' motions began in mid-1998 with motions for summary judgment as to the Millcreek Dump site in Erie, Pennsylvania, and the Old City of York Landfill in York, Pennsylvania. Defendants Republic, Commercial Union and Home moved for summary judgment as to both sites, while Central National's motion applied only to the York site. According to defendants, Emerson's liability at these sites arose from the routine delivery of wastes over a long period. Plaintiffs in fact stipulated that there was no evidence at either site of an "abrupt" discharge. Thus defendants argued that under Pennsylvania law the contamination at the Erie and York sites did not result from a sudden and accidental event as required by their policies, and there was thus no coverage for those sites.

On August 17, 1998, the trial court granted the motions for summary judgment at both the York and Erie sites, concluding that the contamination at those sites occurred over an extended period of time and could not be considered sudden and accidental under Pennsylvania law. On October 30, 1998, the court entered a separate order granting Republic's motions for summary judgment at the York and Erie sites. The court noted that its August 17 decision was dispositive only as to Republic's 1984-1985 policy and not as to the 1983-1984 policy, which (unlike the later policy) required only that the discharge of pollutants be accidental. Focusing on plaintiffs' disposal of the wastes at each site, which took place over a period of time, the court held that such gradual disposal or pollution could not be considered accidental under Pennsylvania law. Thus there was no coverage as to the York and Erie sites under Republic's 1983-1984 policy either.

Republic moved in September 1998 for summary judgment as to the Dixiana, South Carolina, site and the Maysville, Kentucky, site. With respect to its Dixiana motion, Republic made the same argument it previously made under the law of Missouri. According to Republic, the costs for which Emerson sought coverage at the Dixiana site were for government-mandated cleanup. Under South Carolina law, Republic asserted, such relief is equitable in nature and does not constitute "damages" as defined in Republic's policies. In the Maysville, Kentucky, motion, Republic, joined by Home, argued that the discharge of contaminants at this site was routine, intentional and deliberate, and that under Kentucky law such discharges are not accidental events covered by a commercial liability policy. As noted, both of Republic's policies at issue exclude coverage for damage arising from a discharge of pollutants unless the discharge is accidental.

On November 18, 1998, the trial court granted the motions for summary judgment at both sites. As to the Dixiana, South Carolina, site, the court agreed with Republic and held that under South Carolina law the relief sought by Emerson, i.e., government-mandated response and cleanup costs, was equitable in nature and not within covered "damages" as stated in general liability policies. As to the Maysville, Kentucky, site, the court rejected Emerson's argument that a degreaser accident in the 1960s which allegedly resulted in a sudden and accidental release of solvent was a cause of the contamination at issue. The court agreed with Republic and Home that the contamination resulted from Emerson's "routine and deliberate business practices" and thus was neither sudden nor accidental, and therefore not covered under any of Republic's relevant policies.

The trial court subsequently made a finding that the judgments included in its August 17, October 30, and November 18, 1998, orders were appealable pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). On December 10, 1998, the trial court entered Rule 304(a) findings of appealability as to its granting of summary judgment in favor of: (1) Republic, Home, Commercial Union, and Central National as to the York, Pennsylvania, site; (2) Republic, Home, and Commercial Union as to the Erie, Pennsylvania, site; (3) Republic and Home as to the Maysville, Kentucky, site; and (4) Republic as to the Dixiana, South Carolina, site. The appeal docketed at No. 98-4780 consists of Emerson's appeals from all of those judgments except the granting of summary judgment in favor of Home as to the York, Pennsylvania, site. As noted, Emerson's appeal from that judgment is docketed at No. 99-244.

The third appeal at bar, No. 98-4762, arose from Emerson's motion for summary judgment against Republic as to the Hatfield, Pennsylvania, site. Emerson argued that under Pennsylvania law, accidental releases of contaminants at Emerson's Church Road (Brooks) facility during the 1960s were covered under Republic's 1983-1984 policy (No. CDU 15502), which as noted allowed coverage for damages resulting from any accidental discharge of pollutants. The trial court denied Emerson's motion, noting that Republic's policy provided coverage for damages caused by "an occurrence," and concluding that Emerson had not shown that there was such an "occurrence." The trial court subsequently certified this interlocutory order for appeal pursuant to Supreme Court Rule 308 (155 Ill. ...


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