Document o9QZQeoLGrzbbMLqqxxmzLnj7

within the subject policies' coverage As noted above, the instant policies provided that " 'occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured " An accident has been interpreted to mean" 'an unforeseen occurrence * * * of untoward or disastrous character' or 'an undesigned sudden or unexpected event' " Bituminous Casualty Com v Gust K Newborn Construction Co. 218 IU Add 3d 956. 965-66. 161 IU Dec 357. 578 N E 2d 1003 0991). quoting Aetna Casualty & Surety Co v Frever. 89 111 Add 3d 617, 619. 44 111 Dec 791, 411 N E 2d 1157 (19801 Our review therefore requires us to compare the allegations of the complaint with the policies and determine whether the allegations of the counterclaim allege or potentially allege an "occurrence" as that term is defined in the policy We now compare the allegations of the counterclaim and the relevant policy provisions Paragraph 71 ofthe counterclaim states that "BFG's counterclaims arise out of the transactions or occurrences, relating to the parties' actions and obligations to each other under the Agreement with respect to covered environmental matters, which are the subject matter of [Pneumo Abex's] complaint * * * " In paragraph 72 of the counterclaim, BFG sought a declaration of Pneumo Abex's obligation to reimburse BFG for environmental remediation **305***111 expenses provided for under "the Agreement" In paragraph 74 ofthe counterclaim, BFG claimed that Pnuemo Abex agreed to indemnify it for environmental liabilities relating to purchased assets or business under the agreement Paragraph 79 indicated that "Hazardous Substances," as defined m the agreement, had been identified at the various sites owned by BFG Paragraphs 80,82, and 84 indicated the presence of contamination at the Cleveland New Main, Cleveland Plating, and Tullahoma facilities exceeding human health and environmental protection *869 standards established under "Environmental Laws," as that term was defined in the agreement Paragraphs 81, 83, and 85 alleged that the contamination, if left unremediated, threatened human health and environmental concerns Those same paragraphs also alleged that the contamination occurred before BFG maintained "stewardship" over the property Paragraph 86 alleged "To date, BFG has incurred over $400,000 to identify and characterize the presence at the properties of 'Hazardous Substances' within the meaning of the Agreement, at or above levels of regulatory concern, to evaluate the risks posed by those substances to site Page 6 occupants, ground water resources and neighboring properties, and to implement appropriate response actions " Paragraph 88 further provided "These expenditures all constitute 'Environmental Liabilities' for which Pneumo Abex has agreed to indemnify BFG under the terms of Article 13 5 ofthe Agreement" Considering all ofthe allegations above, we do not find that they alleged "an accident, including continuous or repeated exposure to conditions, which [resulted] m bodily injury or property damage neither expected nor intended from the standpoint of the insured " We also find that the counterclaim did not seek relief for property damage Instead, the counterclaim sought indemnification for expenses incurred for remediating the environmental contamination contemplated by the parties in the asset purchase agreement Because the contamination and the expenses for remediating the contamination were contemplated by the parties, the damages complained of could not have arisen from an unforeseen occurrence On appeal, plaintiffs rely primarily upon Outboard Marine. 154 111 2d at 111,180 111 Dec 691.607NE2d 1204. and United States Fidelity & Guaranty Co v Specialty Coatings Co. 180 111 App 3d 378. 382. 129 111 Dec. 306. 535 N E 2d 1071 fl989f They state that broad insuring language in Outboard Marine and Specialty Coatings is similar if not identical to the policy language in this case Plaintiffs also suggest that the allegations of environmental property damage caused by the insured m the BFG suit are similar to the allegations in the third-party actions in Outboard Marine and Specialty Coatings Because the third party actions m those cases triggered the duty to defend, plaintiffs claim that the BFG suit triggered the duty to defend in this case In Outboard Marine, several complaints were filed against Outboard Marine Corporation (OMC) by the state and federal environmental protection agencies for the discharge of polychlorinated byphenyls into the North Ditch, Waukegan Harbor, and Lake Michigan *870 The underlying suits also included a third-party complaint filed by OMC against the Monsanto Corporation The Environmental Protection Agency (EPA) then joined Monsanto as a party defendant in an amended complaint Monsanto filed a cross-claim for indemnification against OMC m the event it was **306 ***112 found liable as a result of the EPA action OMC tendered the defense of the underlying actions to its insurers under comprehensive general liability insurance policies The policy language stated. " '[The insurer] will pay on behalf of the insured all Copr West 2003 No Claim to Orig U S Govt Works \