ELR Citation: ELR 20756
No(s). 84-5034-CV-S-4 (W.D. Mo. Jun 25, 1985)

The court holds that under Missouri law an insurer owes neither a duty to defend nor a duty to indemnify a hazardous waste generator in government actions to recover cleanup costs incurred after the expiration dates of the policies. Plaintiff and other parties sought to clarify plaintiff's defense and indemnity obligations in two separate hazardous waste cleanup actions by the federal and state governments and a toxic tort action by private citizens against a corporate hazardous waste generator and its officers, who were covered by plaintiff's comprehensive general liability insurance policies during part of the period in which liability-causing disposal of the wastes took place. The court holds that the insurance policies do not cover actions to recover cleanup costs that were incurred after the policies expired. The policies made insurer liable only for injuries or damage occurring "during the policy period." Missouri law, which all parties agree governs the dispute, defines "occurrence" in terms of the time the loss or damage was sustained, not when the wrongful acts took place. Wrongful disposal of defendant's wastes at the Denney Farm site, subject of the United States' suits, and at the Minker/Stout/Romaine Creek site, subject of the state's suit, took place during the life of the policies, but the cleanup actions were carried out, and the "damages" incurred, long after the policies expired. The court grants summary judgment to plaintiff as to its liability to defend or indemnify in the two government actions.

The court next holds that it lacks the factual basis to rule on plaintiff's summary judgment motion in the toxic tort action. The court notes that the most difficult issue is whether the alleged injuries "occurred" during the period covered by the policies. The court finds relatively persuasive the middle-of-the-road injury-in-fact theory of insurer liability, which requires more than mere exposure but less than an actual manifestation of injury during the policy period; nevertheless, it notes that all courts that have ruled on this difficult question have had the benefit of substantial medical evidence on the nature and progression of the diseases involved, evidence not yet before the court in this case. Likewise, whether the pollution was sudden and accidental, and thus not barred by the pollution exclusion clauses in the policies, turns on unresolved factual questions.

[Related decisions are published at 13 ELR 20992, 14 ELR 20212, and 15 ELR 20161.]

Counsel for Plaintiff
Gary Long
Shook, Hardy & Bacon
1101 Walnut St., 20th Fl., Kansas Cty MO 64106
(816) 474-6550

Counsel for Defendant
Edwin B. Michaels, John W. Lee
55 Glen Ave., Norwalk CT 06850
(203) 838-6266

Counsel for Defendant-Intervenor
Shelly Woods, Ass't Attorney General
549 U.S. Courthouse
811 Grand Ave., Kansas City MO 64106
(816) 374-3122