Hitchings v. Home Insurance

190 A.D.2d 1030

Opinion

— Judgment unanimously affirmed with costs. Memorandum: In 1983, plaintiff shipped 169,020 pounds of bulk waste oil containing polychlorinated biphenyls (PCBs) from its facility in Verona, New York, to the Martha C. Rose Chemicals, Inc. disposal site in Holden, Missouri. An inspection of the Rose site by the Environmental Protection Agency (EPA) disclosed unacceptable levels of PCB contaminated waste. In a subsequent investigation by the EPA, plaintiff was identified as a potentially responsible party. Those designated as potentially responsible parties formed a steering committee. Some of them settled with the EPA and then sued the non-settling parties, including plaintiff, in United States District Court for the Western District of Missouri. In this declaratory judgment action, plaintiff seeks to compel defendants to defend and to indemnify it in that underlying litigation. Supreme Court denied plaintiff’s motion for partial summary judgment and granted summary judgment to defendants, declaring that they were not obligated to defend or to indemnify plaintiff.

Each of the policies issued by defendants excluded from coverage property damage arising out of the discharge of contaminants unless the discharge was sudden and accidental. Because none of the allegations in the underlying complaint can be construed as asserting a sudden and accidental discharge of PCBs, defendants have no duty to defend or to indemnify plaintiff (see, Powers Chemco v Federal Ins. Co., 74 NY2d 910; Rochester Smelting & Ref. Co. v Merchants Mut. Ins. Co., 188 AD2d 1055; Rosen v CNA Ins. Co., 182 AD2d 1090, lv denied 80 NY2d 757; Borg-Warner Corp. v Insurance Co., 174 AD2d 24, lv denied 80 NY2d 753). (Appeal from Judgment of Supreme Court, Onondaga County, Murphy, J.— Declaratory Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Fallon, JJ.