Quincy Mut. Fire Ins. Co. v. Bor. of Bellmawr

In Quincy Mut. Fire Ins. Co. v. Bor. of Bellmawr, 338 N.J. Super. 395, 398, 769 A.2d 1053 (App.Div.), appeal filed and certif. granted, 169 N.J. 609, 782 A.2d 426 (2001), the Borough of Bellmawr dumped municipal waste in the Kramer Landfill, beginning sometime between April 27 and early May 1978. The landfill was closed by the EPA in 1981 and Bellmawr was required to make a $ 449,036 contribution to the cleanup expenses. Ibid. The municipality sought indemnification from its five insurers for the period from June 1977 through December 1990. Id. at 398-99, 769 A.2d 1053. The trial judge ruled that Century, which had insured Bellmawr between June 18, 1977 and June 18, 1978, was not obligated to pay under its policy because its expert had testified that it would take 200 days for contaminants deposited in May and June 1978 to reach and pollute the groundwater, taking that damage outside Century's policy period. Id. at 399, 769 A.2d 1053. A majority of this court agreed that Century was not responsible for Bellmawr's loss "because insurer liability is based not on when dumping took place, but on when 'damage' occurred. Damage occurred when the leaching contaminants reached ground water, at a time when Quincy's the appellant's policy was in effect." Ibid. The court noted and discussed the inherent differences between application of the continuous trigger theory of coverage in toxic tort cases (asbestos--Owens-Illinois) and environmental pollution cases (landfill contamination--Astro Pak), id. at 400-02, 769 A.2d 1053, and concluded: The premise of Owens-Illinois, then, both as to personal injury or property damage from asbestos, is that injury or damage is inflicted on the person or the building immediately upon exposure to the asbestos. While that injury or damage may only manifest itself at some later date, it had begun earlier--with respect to personal injury from the date of exposure to the asbestos, and with respect to property damage, from the date of installation in the building. Thus the "continuous-trigger" which imposes insurance company liability begins to run from that time of first exposure. Here, however, there was no damage or injury at the time Bellmawr deposited municipal waste into the Kramer landfill. There was nothing comparable to the "immediate tissue damage," or "insult to tissue" or immediate building damage inflicted by asbestos "from the moment asbestos is installed" because the "'fallout of fibers from deteriorating material is continuous.'" Owens-Illinois, supra, 138 N.J. at 453-56, 650 A.2d 974 (quoting from Lac d'Amiante du Quebec, Ltee., supra, 613 F. Supp. at 1561). Rather, no damage of any kind was inflicted on anyone, or on the environment, when municipal waste was dumped into a landfill created specifically for that purpose. There was damage only when the toxic leachate forming part of that waste seeped out of the landfill and reached nearby ground water. According to the undisputed expert testimony and the findings of the trial court, that did not happen until 185 to 200 days after Bellmawr began dumping. Then, and only then, did the "continuous trigger" of liability begin to run, and by that time Century's policy had expired and responsibility lay with Quincy.Id. at 402, 769 A.2d 1053. The majority held that the principle governing both environmental property damage and toxic exposure personal injury cases was the same: "The continuous trigger imposing insurance company liability begins to run when damage first occurs." Id. at 403, 769 A.2d 1053. With asbestos, it begins with installation; with pollutant dumping, it begins only when the surrounding property is contaminated thereby. Ibid. Judge Wecker dissented. She disagreed with the majority's reading of Owens-Illinois to preclude dumping of pollutants as the time when damage began to "occur", thus triggering exposure. Id. at (409), 769 A.2d 1053 (dissent). She concluded that "the toxins began their damaging journey through the ground--just as the asbestos fibers in Owens-Illinois began their damaging journey through the air immediately upon installation of the insulation." Id. at 410, 769 A.2d 1053.