ELR Citation: ELR 21454
No(s). 5285 (Mass. Jun 14, 1990)

On certification from a federal district court, the Massachusetts Supreme Court holds that the "sudden and accidental" exception to the pollution exclusion clause in a comprehensive general liability insurance policy has a temporal element, and a release of pollutants must occur abruptly for the exception to apply. The court holds the word "sudden" is unambiguous as used in conjunction with the word "accidental" in the pollution exclusion clause. For "sudden" to have any significant purpose when used with the word "accidental," it must have a temporal aspect and not just the sense of something unexpected. The court next holds that a declaratory judgment action under Massachusetts law provides a procedure by which an insurer, with a duty to defend but apparently only a negligible duty to indemnify, can terminate its duty to defend. The court declines to answer a question concerning when injury or property damages actually occur under the policies, since it does not have all relevant facts.

Counsel for Plaintiff
Timothy C. Russell
Drinker, Biddle & Reath
901 15th St. NW, Ste. 900, Washington DC 20005
(202) 842-8800

Counsel for Defendant
David A. McLaughlin
McLaughlin & Folan
448 County St., P.O. Box A-2095, New Bedford MA 02741-2095
(508) 992-9800

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, and GREANEY, JJ.