AMERICAN STATES INSURANCE COMPANY v. CHATHAM FAMILY TRUST (1994)

This proceeding arises out of a declaratory relief action filed by American States Insurance Company (American) against its insureds Robert and Thomas Chatham and the Chatham Family Trust (collectively the Chathams).   American seeks a writ of mandate after the court denied a summary judgment motion in which American, based on pollution exclusions, contended it had no duty to indemnify or defend state environmental cleanup proceedings.   The pollution exclusions contained an exception for “sudden and accidental” discharge or release.   The court denied the motion finding there was a triable issue of fact whether at least some of the property damage resulted from “sudden and accidental” causes.   Because we conclude no evidence presented raised a triable issue of material fact whether there was a “sudden” discharge or release within the meaning of the policies, we grant the petition.

BACKGROUND

From 1941 to 1981 the Chathams ran the Chatham Brothers Barrel Yard (the site) which recycled waste oil and solvents.   American issued two Comprehensive General Liability (CGL) policies to the Chathams covering periods from January 13, 1979, to July 17, 1981, and from February 1, 1982, to October 24, 1983.   The policies contained language whereby the insurance did not apply “to bodily injury or property damage arising out of the discharge, dispersal, release or escape of ․ toxic chemicals ․ waste materials ․ contaminants or pollutants into or upon land, the atmosphere or any water course or body of water;  but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”

For the past seven years American, under reservation of rights, has defended the Chathams in actions arising out of environmental contamination of the site.   The only matter remaining is the proceeding to recover past and future costs of cleanup from the Chathams and approximately 90 other potentially responsible parties.   A complaint has not yet been filed in the matter and the Chathams have stipulated to extending the statute of limitations pending settlement negotiations.

American filed this action to obtain a declaration of its rights and duties under the policies issued to the Chathams.   American, inter alia, alleged it had no duty to defend or indemnify the Chathams because the toxic contamination or alleged property damage had been caused by gradual, ongoing pollution over approximately 50 years and was thus barred by the policies' pollution exclusions.   American moved for summary judgment, arguing there was no duty to defend or indemnify the insureds based on the pollution exclusions.   The Chathams opposed, arguing the possibility of coverage under the policies created a duty to defend.   The court denied the motion finding there was a triable issue of fact “whether at least some of the property damage to the subject site resulted from sudden and accidental causes․”

Pursuant to Code of Civil Procedure 1 section 437c, subdivision (1), American petitioned this court for a writ of mandate.   We issued an order to show cause and stayed trial.

DISCUSSION

I.Standard of Review

 “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (§ 437c, subd. (c).)  The motion must be supported by “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.”  (§ 437c, subd. (b).)  By legislation adopted in 1992 and 1993,² the Legislature amended section 437c to address the parties' burden on a summary judgment motion.³  With respect to a plaintiff's motion for summary judgment, section 437c now provides:

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action.   Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.   The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”  (§ 437c, subd. (o)(1).)

The current statute eliminates a former requirement that a plaintiff moving for summary judgment refute each affirmative defense.  (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 301, fn. 4, 24 Cal.Rptr.2d 467, fn. 4, 861 P.2d 1153, fn. 4 (Montrose Chemical ).)   Now, to meet its burden the moving plaintiff must only produce sufficient admissible evidence on each element of a cause of action necessary to entitle it to judgment.   The opposing defendant has no evidentiary burden absent the plaintiff meeting its initial burden.   However, once the plaintiff has met that burden, the burden shifts and, to defeat the motion, the opposing defendant must produce sufficient admissible evidence to raise a triable issue of material fact either as to the cause of action or as to an affirmative defense.

 Because review of a summary judgment determination involves only questions of law, we independently analyze the supporting and opposing papers to determine if there is a triable issue of material fact.  (Planned Parenthood v. City of Santa Maria (1993) 16 Cal.App.4th 685, 690, 20 Cal.Rptr.2d 391.)   In making our determination, we liberally construe the evidence and declarations offered in opposition to the motion and strictly construe that offered in support of the motion.  (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 373, 178 Cal.Rptr. 783, 636 P.2d 1121.)

II.

The Insurer's Duty to Defend

An insurer owes a broad duty to defend and must defend any time the claims against its insureds create a potential for liability.  (Montrose Chemical, supra, 6 Cal.4th at pp. 295, 299, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)   To prevail in a declaratory relief action therefore, an insurer must prove the absence of any potential for coverage and “[a]ny doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured's favor.”  (Id. at pp. 299–300, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)

In Montrose Chemical, the plaintiff (Montrose) had manufactured the pesticide DDT for 35 years.   A Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action was filed against Montrose and its liability insurers refused to defend.   Under the CGL policies the carriers had agreed to defend against any suit “ ‘seeking damages on account of bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent’ ” and had agreed to indemnify for “ ‘bodily injury or property damage ․ caused by an occurrence.’ ”  (Montrose Chemical, supra, 6 Cal.4th at p. 292, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)   “ ‘Occurrence’ was defined as ‘an accident, including continuous or repeated exposure to conditions which results in ․ property damage neither expected nor intended from the standpoint of the insured․’ ”  (Id. at pp. 292–293, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)

Montrose brought a declaratory relief action against the insurers and thereafter moved for summary adjudication that the insurers were required to defend because there was a potential for liability.   The Supreme Court agreed, finding that the allegations of the complaint had raised the possibility Montrose would be liable for property damage covered by the policies.   The Supreme Court stated the “fact that toxic discharges occurred over a lengthy period during which Montrose operated its ․ facility does not, without more, establish that Montrose expected or intended the property damage that allegedly resulted.  [Citations.]  And the fact that Montrose's regular business practices involved the disposal of DDT process wastes could not eliminate the possibility that at least some of the property damage might have resulted from accidental causes.”  (Montrose Chemical, supra, 6 Cal.4th at pp. 304–305, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)

The Chathams argue the insurance policies in issue here contain identical language to that found within the Montrose insurance policies and that Montrose Chemical therefore required denial of American's summary judgment motion.   We disagree.  Montrose Chemical's discussion of the evidence made it clear the court was addressing whether there was a possibility the acts alleged fell within the definition of “occurrence.”  Montrose Chemical did not consider the effect of the pollution exclusion or what constitutes a “sudden” discharge under the exception to the exclusion as is in issue here.

III.

The Pollution Exclusion and Exception

 Whether gradual pollution over an extended period can be “sudden” within the meaning of the pollution exception has been the topic of numerous decisions.   Some courts find “sudden” to mean no more than “unintended and unexpected” while others interpret the term to contain a temporal element requiring an abrupt discharge or release.  (See ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co. (1993) 17 Cal.App.4th 1773, 1779–1783, 22 Cal.Rptr.2d 206 (ACL Technologies );  Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 752–756, 15 Cal.Rptr.2d 815 (Shell Oil ).)   Under California law only a discharge which is both accidental and abrupt falls within the exception to the pollution exclusion.  (ACL Technologies, supra, 17 Cal.App.4th at pp. 1779–1789, 22 Cal.Rptr.2d 206;  Truck Ins. Exchange v. Pozzuoli (1993) 17 Cal.App.4th 856, 859–860, 21 Cal.Rptr.2d 650 (Truck Ins.);  Shell Oil, supra, 12 Cal.App.4th at pp. 752–756, 15 Cal.Rptr.2d 815.)

However, no California case addresses the question whether an insurer has a duty to defend where contamination takes place gradually over a long period during the regular course of the insured's business but specific “sudden” and “accidental” discharges may have occurred during that time.   The issue has been addressed by the Ninth Circuit applying California law in Smith v. Hughes Aircraft Co. (9th Cir.1993) 22 F.3d 1432 (Smith ).   In Smith, Hughes Aircraft Co. (Hughes) had been sued for injuries purportedly arising out of Hughes discharging chemicals into unlined ponds.   Hughes settled with the plaintiffs and its insurers filed a declaratory relief action to determine their liability.   The district court granted summary judgment for the insurers based on a pollution exclusion identical to the one in issue here.  (Id. at p. 1436, fn. 3.)   Relying on ACL Technologies, Truck Ins. and Shell Oil, the Ninth Circuit concluded the term “sudden” connotes a temporal quality under California law.  (Id. at p. 1437.)   Hughes argued a defense was required because “sudden” polluting events caused some of the toxic chemicals to be dumped directly into its unlined ponds.   The purported “sudden” events occurred when the waste treatment plant was overcapacitated or broke down or when spilled chemicals were pushed into a drain that bypassed the treatment plant.   The court rejected what it considered to he Hughes's efforts to break down long-term waste practices into temporal components to find coverage when the evidence unequivocally showed the pollution was gradual.   (Id. at p. 1438.)

The federal district court has recently issued an opinion addressing a similar pollution exclusion in Staefa Control–System Inc. v. St. Paul Fire & Marine (N.D.Cal.1994) 847 F.Supp. 1460 where a property owner located adjacent to Staefa Control–System Inc. (Staefa) had sued Staefa and others claiming its groundwater and soil had been contaminated by migrating contaminants.   Staefa tendered the defense to St. Paul Fire & Marine Insurance Co. (St. Paul) contending it had not caused the pollution and the responsible party was in bankruptcy.   St. Paul, which had issued two policies containing pollution exclusions with exceptions for “sudden accidents,” denied the defense on the grounds there was no evidence of a “sudden accident” within the periods of the policies.  (Staefa Control–System Inc. v. St. Paul Fire & Marine, supra, 847 F.Supp. at pp. 1463–1466.)

Staefa sued St. Paul for declaratory relief, breach of contract and bad faith.   Upon cross-motions on the duty to defend, the district court interpreting California law concluded the pollution exception only applied to those events that occurred quickly.  (Staefa Control–System Inc. v. St. Paul Fire and Marine, supra, 847 F.Supp. at p. 1468.)   The court also concluded the temporal requirement applied only to the initial polluting event and not to damages.   Therefore coverage could extend to a gradual migration of pollutants that was caused by a sudden accident such as an explosion.  (Id. at p. 1469.)   The court granted Staefa's summary judgment motion finding a duty to defend existed because there was a possibility the damages alleged were caused by a sudden accident.  (Id. at pp. 1469–1470.)

In Staefa the court found the complaint was broad enough to encompass the possibility a sudden accident caused the damages and it would be premature to conclude no sudden accident was a possible cause of damages since the underlying case was in the early stages of discovery.   The court noted that Staefa's expert geologist, in connection with the motions, had declared it was his current opinion that at least some of the pollution had been caused by the collapse of an underground storage tank during the policy period.  (Staefa Control–System Inc. v. St. Paul Fire and Marine, supra, 847 F.Supp. at p. 1470.)

 We conclude that where an insured's conduct of business results in gradual, long-term pollution or contamination, such pollution does not fall within the “sudden and accidental” exception to the pollution exclusion.   Quite simply, gradual, long-term dispersal of pollutants and contaminants is the antithesis of the “sudden” discharge or release necessary for the pollution exception to apply.   However, the fact that an insured through conducting business may have caused some gradual, long-term contamination does not preclude a duty to defend if some measurable portion of contamination was potentially caused by a “sudden and accidental” event such as an explosion or fire.   We therefore find the court did not err in concluding the summary judgment motion should be denied if there was a potential that some of the contamination resulted from sudden and accidental causes.   However, on the evidence submitted below, we further conclude the court erred in finding there is a triable issue of fact whether a sudden event within the meaning of the exception to the exclusion occurred in this instance.

IV.

Application of the Exception

American contends it met its burden of showing the nature of the contamination was gradual, continuous and ongoing and resulted from routine business operations taking place over a lengthy period of time having no temporal or sudden element.   The Chathams on the other hand argue factual issues remain as to the source, extent and cause of the contamination at the site and that it is for the trier of fact to weigh the conflicting evidence whether there was any “sudden and accidental” events which caused the contamination in whole or in part.   While such determination would normally be for the trier of fact, summary judgment is appropriate where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (§ 437c, subd. (c).)

In considering the evidentiary showings made by the parties in support of and in opposition to the summary judgment motion, we assume, without deciding, that American bears the burden of proving the exception to the pollution exclusion applies.⁴  In support of its motion American submitted multiple declarations, affidavits, deposition excerpts and certain reports and consent orders from the state proceedings demonstrating long-term recycling of waste oils and solvents and resultant contamination.⁵

In its separate statement of undisputed facts in support of its motion American, inter alia, states:  (1) The Chathams recycled waste oil and solvents at the site from approximately 1941 to 1981.  (2) Materials recycled at the site from approximately 1941 to 1981 included waste oil, kerosene, hydraulic oil, certain chlorinated solvents;  chlorinated solvents were stored at the site in eight trailer tanks from approximately 1960 to 1981.  (3) California Department of Health and Services, San Diego Department of Health Services and the California Regional Water Quality Control Board investigations revealed the soil and groundwater at the site have been contaminated by the Chathams' operations from 1941 to 1981 with hazardous substances, including volatile organic solvents, polychlorinated biphenyls and heavy metals.  (4) There were no sudden and accidental events at or near the site which could have caused the contamination.

 The Chathams in their separate statement of disputed facts submitted in opposition to the motion admit they recycled waste oil and solvents at the site from approximately 1941 to 1981.   They further do not dispute statements of fact numbers two and three above except to state the “disputed fact” is an issue of consequence in the underlying action and cannot be presented as evidence in the motion for summary judgment under Montrose Chemical, supra, 6 Cal.4th 287, 24 Cal.Rptr.2d 467, 861 P.2d 1153.⁶  They however fail to dispute the statements themselves.   The crux of the Chathams' opposition is whether there were sudden and accidental events at or near the site that could have caused the contamination.

In support of its motion American submitted orders and reports by the various state agencies conducting the investigation of the site's contamination.   Those documents demonstrate a long-term program of recycling and reclaiming waste oils and industrial solvents and the use of unlined sumps, trenches and ponds.   The documents demonstrate the surface soil is extensively contaminated and the ground water contaminated with organic solvents and heavy metals of the same type as those recycled and disposed of at the site.   The reports find the soils contamination to have resulted from the 40–year operation.   The soil in the area of a stained and cracked concrete pad was found to be highly contaminated.   Thomas Chatham admitted in his deposition that during the 1970's liquids “probably” leaked on the cement pad “possibly” more than once but “probably” not more than 10 times.   Workers at the site signed affidavits stating that barrels were in poor condition and leaking.   Thomas Chatham admitted they sprayed oil over the ground to keep the dust down.   Moreover, the Chathams, in answer to questions posed by the Department of Health Services stated that no “spills” had occurred on the site.   The evidence submitted by American demonstrated a prima facie case that the contamination was the result of the long-term operation of the Chathams' business with gradual contamination and no apparent sudden accidental contributing incidents.⁷

The gradual, long-term contamination demonstrated by American is the antithesis of the “sudden” temporal event required before the “sudden” component of the exception to the pollution exception may apply.  (See ACL Technologies, supra, 17 Cal.App.4th at p. 1788, 22 Cal.Rptr.2d 206.)   Having demonstrated the long-term, gradual contamination and an apparent absence of events that would qualify for coverage under the exception, the burden shifted to the Chathams to raise a triable issue of material fact that such an event may have occurred.   In opposing the motion, the Chathams relied on a declaration by Robert Chatham and excerpts from Thomas Chatham's deposition.

In his declaration Robert Chatham states:  (1) Occasionally while unloading waste salvage oil a drum was knocked off and broke open on the ground.  (2) A truck was once backed into a storage tank causing the contents to leak onto the ground.  (3) Near the end of the business operations they had a fire that caused much damage and “may have released the contents of some containers.”   (4) During the dismantling of equipment in early 1981 “several accidents occurred when the still and condenser were dismantled and loaded onto a trailer.”   There is nothing as to the first two alleged “incidents” upon which the court could have concluded they took place when the American policies were in effect.   With respect to the second two alleged incidents there is absolutely nothing that raises an inference any contamination resulted.   As to the fire, Chatham merely speculates contents of some containers “may” have been released.   As to the dismantling “accidents,” Chatham does not even speculate there was any contamination resulting.

In his deposition Thomas Chatham states “possibly at times” he recalls used oil spilling on the ground during the process of pumping oil out of drums into tanker trucks, “certainly” oil was spilled at times but he did not recall where or how often, and he “supposed” spillage of used oil occurred in the 1970's during the transfer of used oil from one tanker truck to another.   The testimony is so ambiguous and speculative as to what happened and when that it raises no triable issues of material fact that an event qualifying under the exception to the pollution exclusion may have occurred.   At most the testimony tends to show careless, ongoing conduct of the insureds' business operations that the Chathams attempt to “break down” into “temporal components” to find coverage when the evidence is that the pollution was the gradual result of their business practices.  (See Smith v. Hughes Aircraft Co., supra, 22 F.3d at p. 1453.)

 The Chathams contend it is too early in the proceedings to consider disposition by summary judgment.   The Chathams also argue that because the state has not yet filed a complaint in connection with cleanup of the site and the Chathams have presented events which would qualify as “sudden and accidental,” the insurer must liberally construe the potential allegations of the complaint to include such events.

American has been defending the Chathams in actions arising out of environmental contamination of the site for more than seven years.   Investigation regarding the source of pollution has been ongoing since before the state filed its first suit for injunction and civil penalties in 1987.   Many reports, affidavits and depositions upon which the motion for summary judgment were based date back as far as 1986 and 1987.

Incidents that could qualify for coverage under the exception to the pollution exclusion are particularly within the knowledge of the Chathams, the owners and operators of the site.   After seven years of investigation, however, the Chathams have failed to raise the specter of even one “sudden” contaminating event.   An insurer is only required to defend until it has been established there is no potential for coverage.  (Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at p. 295, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)   There is no requirement an insurer provide a defense for an uninsured claim until a complaint is filed.   As discussed previously, American met its burden of establishing there was no potential for coverage for environmental contamination of the site.   The summary judgment motion was not premature and the court erred in finding that a material issue of fact was raised by the vague, ambiguous and speculative statements presented by the Chathams.

DISPOSITION

Let a writ issue directing the court to vacate its order denying American's summary judgment motion and to enter a new order granting the motion on the basis the pollution exclusion bars indemnity and a duty to defend.   The stay issued by this court on April 4, 1994, is vacated.

FOOTNOTES

FN1. All statutory references are to the Code of Civil Procedure..  FN1. All statutory references are to the Code of Civil Procedure.

2.   The motion for summary judgment was made in December 1993, before the 1993 amendment went into effect, but the motion was heard in January 1994.   Because the amendment constituted at most a procedural change, we apply it to pending cases.  (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 843, fn. 7, 239 Cal.Rptr. 292, fn. 7, 740 P.2d 404, fn. 7.)   Moreover, the amendment with respect to the need to set forth specific facts codifies a long line of cases that once the moving party has met its burden, the responding party's burden must be met by reference to admissible evidence rather than allegations or denials in its pleadings.   (See, e.g., Hayward Union Etc. School Dist. v. Madrid (1965) 234 Cal.App.2d 100, 120, 44 Cal.Rptr. 268.)

3.   The 1992 amendment added subdivision (n) setting forth the parties' burdens.  (Stats.1992, ch. 1348, No. 12 West's Cal.Legis.Service, pp. 5719–5720.)   Under the 1992 amendment where a plaintiff moved for summary judgment it was required to produce admissible evidence proving each element of a cause of action entitling it to judgment.   Once the plaintiff met that burden, the defendant was required to show a triable issue of material fact existed as to the cause of action.  (Stats.1992, ch. 1348, p. 5719, formerly codif. at § 437c, subd. (n)(1).)   The 1993 amendment redesignated subdivision (n) as subdivision (o ), added the words “or a defense thereto” to the end of the sentence setting forth the defendant's burden and added a provision that the defendant could not rely on mere allegations or denials in the pleadings but must set forth specific facts showing a triable issue of fact.  (Stats.1993, ch. 276, No. 6 West's Cal.Legis.Service, p. 1628, codif. at § 437c, subd. (o )(1).)

4.   American relying on out-of-state and federal authority, argues it is the insured's rather than the insurer's burden to prove that the exception to the exclusion applies.   We have located no published California law on this issue.   Authority from other jurisdictions is split on this issue with some courts holding an exception is an element of coverage requiring the insured to bear the burden of proof and other courts holding the burden rests with the insurer because proving the exception is part of proving up the exclusion.  (See Staefa Control–System Inc. v. St. Paul Fire & Marine, supra, 847 F.Supp. at p. 1469, fn. 7.)   It is unnecessary to reach this issue because even if American has the burden, we conclude it has been met.   We therefore assume without deciding that the insurer bears the burden.

5.   The Chathams contend American offered the trial court no competent, admissible evidence in support of the summary judgment motion and reason that since they objected to the evidence and the court disregarded all incompetent or inadmissible evidence, the court was required to deny the motion on that basis.   The court however did not deny the motion on the basis American had failed to meet its initial burden but rather on the basis that the Chathams through certain deposition testimony of Thomas Chatham and a declaration of Robert Chatham concerning purported “sudden and accidental” events raised a triable issue of fact.   The Chathams make no specific argument here why any particular evidence submitted by American was incompetent or inadmissible.   We have reviewed all evidence submitted and find sufficient competent, admissible evidence to meet American's initial burden.   The court did not err in impliedly finding American's burden was met.

6.   In opposition to American's motion below the Chathams, relying on Montrose Chemical, requested the declaratory relief action be stayed because the coverage questions turned on issues of consequence to be litigated in the underlying action.   In Montrose Chemical the trial court stated that “[t]o eliminate the risk of inconsistent factual determinations that could prejudice the insured, a stay of the declaratory relief action pending resolution of the third party suit is appropriate when the coverage question turns on facts to be litigated in the underlying action.”  (Montrose Chemical, supra, 6 Cal.4th at p. 301, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)   The trial court denied the Chathams' request to stay the action finding the coverage question did not turn on facts that would be litigated in any action by the state under CERCLA.   The Chathams renew their argument here contending the determination of whether the contamination was caused by any “accidental” or “sudden” events is an issue of consequence in the underlying suit and could result in their prejudice.   A state's CERCLA action is based on strict liability and the cause of contamination is irrelevant.   Moreover, a release must be both “sudden” and “accidental” before the exception to the pollution exclusion applies.   To the extent coverage can be determined strictly on the basis of whether any discharge or release was “sudden” within the meaning of the exception, the issue is not of consequence nor could there be any prejudice to the Chathams in future indemnity actions by other potentially responsible parties.   We therefore conclude there is no merit to the Chathams' argument.   In doing so we are aware of the recent opinion issued by the Second Appellate District in Montrose Chemical Corp. v. Superior Court (1994) 25 Cal.App.4th 902, 31 Cal.Rptr.2d 38.   Here, remand is unnecessary because we determine on the present record there are no common factual issues raised by application of the “sudden” arm of the pollution exception and the underlying claims.

7.   The only incident referred to in American's evidence that could possibly be considered “sudden” is a purported incident when barrels were allegedly crushed and buried.   The Chathams however do not contend this purported incident could qualify under the exception to the pollution exclusion.

WORK, Acting Presiding Justice.

TODD and NARES, JJ., concur.