ELR Citation: ELR 21424
No(s). 90-1753 (1st Cir. May 14, 1991)

The court, applying Maine law, holds that an insurer has no obligation under a comprehensive general liability policy to defend or indemnify its insured for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court assumes that the potentially responsible party (PRP) letters received by the insured were the functional equivalent of a suit, thus triggering the duty to defend. The court notes that the Maine Supreme Court would likely interpret the "sudden and accidental" exception in the policy's pollution exclusion clause to mean temporally abrupt. The court next holds that the allegations in the PRP letters exclude coverage under the policy. Applying the comparison test, under which the insurance policy is compared with the underlying damage complaints, the court finds that the PRP letter from the Maine Department of Environmental Protection makes clear that pollution has resulted from the company's regular business activity in operating a tank cleaning and waste removal business for 13 years. Although the insured, whose wastes were disposed of at the site, may not have expected the contamination, the discharge was not sudden and accidental.

Counsel for Appellants
Robert L. Ciociola, Mary-Jo McNamara
Weiss, Angoff, Coltin & Koski
3 Center Plaza, Boston MA 02108
(617) 227-9610

Counsel for Appellee
John P. Graceffa
Gallagher & Gallagher
1 Constitution Plaza, Boston MA 02129
(617) 241-8800

Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.