Summary
holding the word “sudden” in an exception to a pollution exclusion was ambiguous and should be interpreted as “unexpected”
Summary of this case from S.C. Ins. Reserve Fund v. E. Richland Cnty. Pub. Serv. Dist.Opinion
Opinion No. 24061
Heard March 1, 1994
Decided May 9, 1994 Rehearing Denied June 7, 1994
Appeal From Greenville County Frank P. McGowan, Jr., Judge.
Reversed.
Judith S. Burk, Greenville, for petitioner.
Charles E. Carpenter, Jr., William H. Hensel and Deborah L. Harrison, Richardson, Plowden, Grier Howser, Columbia, for respondent.
Thomas L. Martin, Eugene R. Anderson and John P. Gasior, Anderson, Kill, Olick Oshinsky, P.C., New York City, for amicus curiae County of Anderson.
Kay G. Crowe, Barnes, Alford, Stork Johnson, Columbia, Victor C. Harwood, III, Edward Zampino and Peter E. Mueller, Harwood Lloyd, Hackensack, NJ, for amicus curiae Aetna Cas. and Sur. Co.
John L. Choate and Tracy L. Eggleston, Cozen and O'Connor, Columbia, Laura A. Foggan, Daniel E. Troy and Dennis A. Tosh, Wiley, Rein Fielding, Washington, D.C., for amicus curiae Ins. Environmental Litigation Ass'n.
We granted certiorari to review the Court of Appeals' opinion reported at ___ S.C. ___, 427 S.E.2d 913 (Ct.App. 1993).
FACTS
This declaratory judgment action involves ten lawsuits brought against Greenville County (County) by landowners who allege inverse condemnation of their property through County's maintenance of the Simpsonville landfill from 1960 to 1972. The complaints allege contamination through dumping of hazardous waste and chemicals in the landfill. County's insurer, the Insurance Reserve Fund (IRF), denied any duty to defend County, contending that the dispersal of pollutants was not "sudden" but was gradual, and coverage was therefore barred by a "pollution exclusion." Upon cross motions for summary judgment, Circuit Court held that IRF had a duty to defend County. Court of Appeals reversed, holding that the plain and ordinary meaning of "sudden" is temporal, such that a release must be abrupt or precipitant to be covered by the policy.
The exclusion reads:
This insurance does not apply:
to personal injury or property damages arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritant, contaminants or pollutants into or upon the land, the atmosphere or any water course or body of water; but this exclusion does not apply if such dispersal, release or escape is sudden and accidental;. . . (Emphasis supplied).
ISSUE
Is the policy term "sudden" ambiguous?
DISCUSSION
"Where the words of an insurance policy are capable of two reasonable interpretations, that construction will be adopted which is most favorable to the insured." McPherson v. Michigan Mutual Insurance Co., ___ S.C. ___, 427 S.E.2d 649 (1993). See also Spinx Oil Co. v. Federated Mutual Ins. Co., ___ S.C. ___, 426 S.E.2d 770, 771 (1993) (ambiguous terms in insurance contract should be construed in insured's favor). That different courts have construed the language of an insurance policy differently is some indication of ambiguity. Brooklyn Bridge v. South Carolina Ins. Co., ___ S.C. ___, 420 S.E.2d 511 (Ct.App. 1992), cert. denied. See also Annotation 4 A.L.R.4th 1253 (1983).
There is a split of authority as to the proper definition of "sudden and accidental." Compare Claussen v. Aetna Casualty Surety Co., 380 S.E.2d 686 (Ga. 1989); Just v. Land Reclamation, 456 N.W.2d 570 (Wis. 1990); Polkow v. Citizens Ins. Co., 180 Mich. App. 651, 447 N.W.2d 852 (1989) (holding that "sudden" is ambiguous and to be construed in the insured's favor as "unexpected" and "unintended") with Borg-Warner Corp. v. Insurance Co. of North America, 577 N.Y.S.2d 953 (App.Div. 3d 1992), appeal denied, 600 N.E.2d 632 (1992); Upjohn v. New Hampshire Ins. Co., 476 N.W.2d 392 (Mich. 1991), reh'g denied; Waste Management of Carolinas, Inc. v. Peerless, 340 S.E.2d 374 (N.C. 1986); Lumbermen's Mutual v. Belleville Industries, 938 F.2d 1423 (1st Cir. 1991) (holding that "sudden" contains a temporal element necessitating an abrupt, precipitous event).
In Webster's Third New International Dictionary, p. 2284 (1981) the term "sudden" is initially defined as "to come up, occur unexpectedly; happening without previous notice or with very brief notice; coming or occurring unexpectedly; not foreseen or prepared for." Similarly, in Black's Law Dictionary, p. 1432 (6th Ed. 1990) the term is defined as "happening without previous notice or with very brief notice; coming or occurring unexpectedly; unforeseen; unprepared for."
In view of the holding by numerous jurisdictions, along with the definitions found in both Webster's and Black's, we find the term is ambiguous and susceptible of more than one reasonable interpretation. Construing the ambiguity, as we must, in favor of the insured, we hold that "sudden" is to be interpreted as "unexpected."
We hold that the exception to the pollution exclusion applies and IRF, therefore, must defend its insured. The opinion of the Court of Appeals is
Reversed.
FINNEY, TOAL, and MOORE, JJ., and GEORGE T. GREGORY, Jr., Acting Associate Justice, concur.