ELR Citation: ELR 20848
No(s). A8205-03106 (Or. Ct. App. Dec 26, 1985)

The court holds that insurance companies do not have a duty to defend in an action brought by a city for damages to its sewage system caused by the waste discharged from the insureds' plant because the discharge falls within the policy's exclusion for damage caused by intentional releases of pollutants. The court first holds that the pollution exclusion clause is not ambiguous. The insureds released acids and alkalis, which are specifically listed in the pollution exclusion clause. The court next holds that the discharge was not "sudden and accidental" and thus remains within the coverage of the exclusion clause. The insureds intentionally discharged the wate into the city's sewer lines for many years. The court rejects the insureds' argument that although the discharge was intentional, it was nevertheless "sudden and accidental" because the damage to the sewer system was unintentional. That the damage was unintentional means only that there was an "occurrence" under the policy. The insureds' discharge was clearly intentional and thus their liability is not covered by the insurance policies.

Counsel for Respondents
William Savino
Rivkin, Radler, Dunne & Bayh
100 Garden City Plaza, Garden City NY 11530
(516) 746-7500

Counsel for Appellants
Robert J. Miller Sr., Brien F. Hildebrand
Moomaw, Miller & Reel
12275 S. West Second Ave., P.O. Box 1609, Beaverton OR 97075
(503) 646-0566

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.