Summary
holding that "[n]othing in the [APE] itself or in the remainder of the policy language justifies concluding, as plaintiff would have it, that ambiguity exists with respect to whether coverage is provided for accidental discharges or when the insured is not the actual polluter"
Summary of this case from Cataract Metal Finishing v. Hartford Fire Ins. Co.Opinion
December 11, 1997
Appeal from the Supreme Court (Lynch, J.).
In this action for breach of contract and a declaratory judgment, plaintiff seeks indemnification, pursuant to commercial general liability policies issued by defendants, for costs and expenses incurred in connection with the investigation and remediation of environmental damage that occurred at commercial disposal sites operated by entities with which plaintiff had contracted for the disposal of its waste. Defendants moved for dismissal of the complaint, pursuant to CPLR 3211 (a), on the basis of a provision contained in the subject policies that expressly excludes coverage for, inter alia, damages caused by the discharge or release of pollutants "[a]t or from any site or location used * * * for the handling, storage, disposal, processing or treatment of waste". Supreme Court granted the motion, prompting this appeal.
Plaintiff contends that defendants' motion was jurisdictionally deficient because the motion papers did not identify the particular subdivision of CPLR 3211 (a) relied upon, and because the affidavit tendered in support of the motion contained no factual averments but merely served as the vehicle for submission of the complaint and its attachments. These arguments are unavailing. There is no need to cite the specific subdivision pursuant to which relief is sought when the motion papers apprise one of the actual grounds for the application. Here, defendants' notice of motion clearly indicated that dismissal was being sought on the basis of documentary evidence (namely, the "absolute pollution exclusion" contained in the insurance policies appended to plaintiff's complaint). Inasmuch as the documents submitted were sufficient to permit a determination on this ground (see, Gephardt v. Morgan Guar. Trust Co., 191 A.D.2d 229, lv denied 82 N.Y.2d 656; Williams v. Berkshire Life Ins. Co., 95 A.D.2d 886, 887) and, as plaintiff's responding papers demonstrate, it had ample opportunity to, and indeed did, raise and advance the substantive arguments it believed germane to the resolution of this aspect of the motion, Supreme Court did not err in ruling thereon (see, Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3211:37, at 52-53).
Turning to the merits of that ruling, we find plaintiff's assertions of error unconvincing given the plain language of the subject insurance policies. The Court of Appeals, in Town of Harrison v. National Union Fire Ins. Co. ( 89 N.Y.2d 308), held that an absolute pollution exclusion, similar to that at issue here — which, by its terms, does not furnish coverage for costs and expenses occasioned by the release or dispersion of pollutants, regardless of the nature or cause of the discharge, or the culpability of the insured — must be applied as written (id., at 316; see, Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66, 76; Powers Chemco v. Federal Ins. Co., 74 N.Y.2d 910, 911). Nothing in the exclusion itself or in the remainder of the policy language justifies concluding, as plaintiff would have it, that ambiguity exists with respect to whether coverage is provided for accidental discharges or when the insured is not the actual polluter. Had the insurer intended the exclusion to be as narrow as plaintiff urges, it could easily have included such exceptions (see, Technicon Elecs. Corp. v. American Home Assur. Co., supra, at 74; American Heritage Realty Partnership v. LaVoy, 209 A.D.2d 749, 751).
Equally unpersuasive is plaintiff's contention that public policy considerations require that the exclusion be interpreted so as to be inapplicable in the instant case. Plaintiff's reliance on the public policy concerns underlying a former Insurance Law provision, which essentially prohibited insurers from offering coverage for certain pollution-related costs (but not those resulting from "sudden and accidental" discharges), is misplaced, for the interests which prompted enactment of that statute — a desire "to assure that corporate polluters bear the full burden of their own actions spoiling the environment" (Governor's Mem approving L 1971, ch 765, 1971 N.Y. Legis Ann, at 584) and, in furtherance thereof, to eliminate the availability of insurance coverage that might remove the financial disincentives to engaging in such actions — in no way militate against the use of the broader exclusion employed by defendants in the subject policies.
Plaintiff's remaining arguments have been considered and found wanting.
Mikoll, J. P., Mercure, Crew III and White, JJ., concur.
Ordered that the order is affirmed, with costs.