Second Circuit Affirms Grant of Summary Judgment Based on Pollution Exclusion

On September 5, 2013, the United States Court of Appeals for the Second Circuit affirmed the district court’s grant of summary judgment in favor of Hartford Accident and Indemnity Company (“Hartford”) and two other liability insurers. Emerson Enterprises, LLC v. Hartford Accident and Indemnity Co., et al., No. 12-4287-CV, 2013 WL 4753564 (2d Cir. Sept. 5, 2013). Menz Bonner Komar & Koenigsberg LLP, appearing on behalf of its client Hartford, argued that Hartford had no duty to defend a putative insured against environmental contamination claims arising out of the 40-year practice of intentionally dumping hazardous waste into a “dry well” located on the plaintiff/appellant’s property. The putative insured maintained that it was entitled to coverage under the Hartford policies because various discharges of pollutants at the site were both “sudden” and “accidental,” thereby coming within an exception to the pollution exclusions in Hartford’s policies. Emerson, 2013 WL 4753564 at *1. Amongst other things, plaintiff/appellant argued that, notwithstanding the fact pollutants were intentionally dumped into a dry well in the first instance, there were subsequent “secondary discharges” due to unforeseen rainwater overflows which were both sudden and accidental. Id. The Court rejected this argument, holding as a matter of law that “the unintended consequences of intentional discharges are not ‘accidental.’” Id. in addition, the Second Circuit rejected plaintiff/appellant’s contention that “sudden and accidental” discharges resulted from the alleged practice of workers carrying punctured drums outside, holding that “leakage resulting from the placement on the ground of drums known to be punctured would not be ‘accidental.’” Id.