sudden and accidental exception in California

1998As several courts have noted, placing the burden of proof on the insured to establish the sudden and accidental exception is consistent with the policy rationale that “[t]he rule places the burden on the party who will generally have access to facts that show the discharge of pollutants was sudden and unexpected.” (Aeroquip, supra, 26 F.3d at p. 895; accord, Aerovox, supra, 616 N.E.2d at p. 805.) Courts around the country have also been occupied with the issue of defining the “sudden and accidental” exception.

1998As several courts have noted, placing the burden of proof on the insured to establish the sudden and accidental exception is consistent with the policy rationale that "[t]he rule places the burden on the party who will generally have access to facts that show the discharge of pollutants was sudden and unexpected." ( Aeroquip, supra, 26 F.3d at p. 895; accord, Aerovox, supra, 676 N.E.2d at p. 805 .) (7) Courts around the country have also been occupied with the issue of defining the "sudden and accidental" exception.

1998Assn. (1973) 35 Cal.App.3d 498, 504-505 [ 110 Cal.Rptr. 828 ] (hereafter, Strubble), that the “[the insurer] had to negative its exception (earthquake) to its exclusion (earth movement) since the burden of proof of its defense of noncoverage of the policy sued on rested on it.” The trial court consequently determined that the insurers could not obtain summary adjudication of the duty to indemnify unless they established that no sudden and accidental events caused the Oil damages.

1998Assn. (1973) 35 Cal.App.3d 498, 504-505 [ 110 Cal.Rptr. 828 ] (hereafter, Strubble), that the “[the insurer] had to negative its exception (earthquake) to its exclusion (earth movement) since the burden of proof of its defense of noncoverage of the policy sued on rested on it.” The trial court consequently determined that the insurers could not obtain summary adjudication of the duty to indemnify unless they established that no sudden and accidental events caused the Oil damages.

2007While acknowledging, and accepting, Standun's holding that ordinarily "the relevant discharge is the initial disposal of toxic waste into the landfill" ( Travelers, at pp. 1458-1459, 75 Cal.Rptr.2d 54 ), the court nonetheless stated: "This is not to say that environmental contamination damages connected with industrial dumping are automatically barred from coverage under the sudden and accidental exception to the pollution exclusion.

2005Analysis In Travelers, supra, 63 Cal.App.4th at page 1460 , we held that a sudden and accidental intervening event could trigger coverage for pollution-related property damage but, “the insured must do more than point to possible intervening events, such as a fire, to support a claim for coverage under the sudden and accidental exception. [Citations.] The insured must show that the intervening event was sudden and accidental and did not arise from the disposal of wastes in the ordinary course of business. [Citation.] The insured must also show that an appreciable amount of environmental damage

1998Co. v. Aerovox Inc. (1997) 424 Mass. 226 [ 676 N.E.2d 801, 805 ] (hereafter, Aerovox).) For several reasons, we feel no compulsion to follow the purported holding of Strubble over the well-reasoned and on-point decisions of the Ninth Circuit and other federal and state courts which have held that the insured has the burden of proof on the sudden and accidental exception.

1998Co. v. Aerovox Inc. (1997) 424 Mass. 226 [ 676 N.E.2d 801, 805 ] (hereafter, Aerovox).) For several reasons, we feel no compulsion to follow the purported holding of Strubble over the well-reasoned and on-point decisions of the Ninth Circuit and other federal and state courts which have held that the insured has the burden of proof on the sudden and accidental exception.

2025(MacKinnon, supra, 31 Cal.4th at p. 639 ; see Allstate, supra, 45 Cal.4th at p. 1020 .) In so holding, the MacKinnon court noted that the terms “ ‘release’ ” and “ ‘escape’ ” in a pollution exclusion “connote some sort of freedom from containment” (MacKinnon, at p. 651); “the word ‘dispersal,’ when in conjunction with ‘pollutant,’ is commonly used to describe the spreading of pollution widely enough to cause its dissipation and dilution” (ibid.); and in the pesticide context “ ‘discharge’ ” was most commonly used “to describe pesticide runoff behaving as a traditional environmental 33 the poli

2025(MacKinnon, supra, 31 Cal.4th at p. 639 ; see Allstate, supra, 45 Cal.4th at p. 1020 .) In so holding, the MacKinnon court noted that the terms “ ‘release’ ” and “ ‘escape’ ” in a pollution exclusion “connote some sort of freedom from containment” (MacKinnon, at p. 651); “the word ‘dispersal,’ when in conjunction with ‘pollutant,’ is commonly used to describe the spreading of pollution widely enough to cause its dissipation and dilution” (ibid.); and in the pesticide context “ ‘discharge’ ” was most commonly used “to describe pesticide runoff behaving as a traditional environmental 33 the poli

2002Co. (1998) 18 Cal.4th 1183, 1191 [ 77 Cal.Rptr.2d 537 , 959 P.2d 1213 ] [in a commercial general liability insurance policy, the insured has the burden of proof to establish the sudden and accidental exception to a policy that does not otherwise extend coverage for pollution]; FDIC v. New Hampshire Ins.

2002Co. (1998) 18 Cal.4th 1183, 1191 [ 77 Cal.Rptr.2d 537 , 959 P.2d 1213 ] [in a commercial general liability insurance policy, the insured has the burden of proof to establish the sudden and accidental exception to a policy that does not otherwise extend coverage for pollution]; FDIC v. New Hampshire Ins.

2002Co. (9th Cir. 1991) 953 F.2d 478, 483-485 [the insured has the burden to prove discovery within a policy’s applicable period of limitations].) 3 Our resolution of the coverage issue in favor of F&D makes it unnecessary to consider MAI’s arguments about its claim for breach of the covenant of good faith and fair dealing or its demand for punitive damages.