contamination case if you will the circle case has been appealed to this court early on in this case ross development corporation was pulled in as a third party defendant by p c s nitrogen which is he represented by coun thousand and seven to ms actually requests that all the insurance carriers be placed on notice and asked to defend the case if i see initially defended the case under reservation of rights in and m sees nothing in their letter withdrawing the defense of ross in that case indicates that anything changed between the time that they initially agreed to defend ross and the time they would drew the defens ross but they did rely on this definite this idea that the site was not insured prophecies in the policy because it was not contained within the declarations of the policy is has been pointed out in this in this so it is a covered promise each if i see to not rely on the pollution exclusions in the policy which is the basis of the district court granted summary judgment if i see really until after the fact after the clerk or judgment insured the wrong reason has a valid reason it makes a mistake about the reason that it's not going to insure that that constitutes but i don't think that that specifically constitutes bad faith i think here you have the further but i have absolutely wrong there's no basis but wrong without doing the proper investigation or without facts supporting the basis that you're wrong is bad faith and i think correct on their alternate conclusion that there's no  liability i don't believe i think it's coverage i think under south carolina law the decision on the duty to defend is made at the time they're just absolutely right on the ultimate thing that there's no duty to defend and there is no coverage but they exclusion your honor i don't believe it does i think waist was used in sort of a technical aspect at that time and during the circle hearing the exclusion covers waste as long as the dispersal release or escape is not sudden accidental when i think here it was not so it was sudden accidental was not intended or expected because the dis sure is the the subsequent leeching of the contaminants into the the pyrites lagan pyrite sinners which rosted know at the time would when mixed with water disintegrate in spread throughout the site that wasn't known at the time but the clean up is driven there's no reason to good morning your owners i mean if i can start with that issue of weren't you wasn't p c s referring to this in the ross mitigation is as as waste because you wanted ross to to pay those response god or were trying to establish  the underlying litigation the circlip a geisha was that the material that was causing the contamination at the site was there because of ross's operations absolutely no question about that the point is that the policies do not have an exclusion that says we don't cover pollution from whatever cause we cover pollution that's unintended that's the give back in the pushes question and so the circle has a strict liability standard the pollution question is not a strict liability standard and in fact what the insurers are trying to do here is take conduct from one thousand six when ross his predecessor planners took essentially rock and slag it simply pyrite that's burned it's fool's gold it's burned to release the sulfur now you have rock left over and they put it on the ground they used it to build roads and they used it for phil there was no there was no bad conduct involved in that it was simply an operation a part of their operation as a result of that filling of the property and the use of the slag not whether they were good or bad it's whether they intended to discharge even if the discharge produces unintended damage and song for the point along the road when you cut a big hole in the if you say not only did you have to intend to discharge but you have to and for see the pollution that would arise from the discharge in order to be was on the hook for a response cost that that coverage for liability for negligence for damage caused by operations of ross or ross's predecessor whether they have liability or ross this isn't about whether it's ross has to pay the circle of cost this is about whether the insurers have a duty to pay for ross's costs whether they have a duty to them the fine the fed ross for those liabilities and it does go to the issue of whether ross had any intent knowledge awareness expectation when they put this material on the ground that it would cause damage what the policy requires that there be a discharge or a release of the waste material right so the first question is and it's a fact question is whether this is a waste exclusions is arising out of the discharge is an exclusion for property damage arising out of the discharge of and then they give a number of specific things and they say waste materials or other contaminants or pollutants and why does that exclusion broader picture of what insurance the insurance policy does it provides coverage for an occurrence that's the first trigger this is an exclusion the grant of coverage is for an occurrence meaning bodily injury or property damage during the policy period caused by the operations of the insurer that's the occurrence and so first we have to look at what is the property damage that is being triggered here what claim is there what occurrence is there and a property damage occurs decades after the pyrite is placed on the ground when the site conditions interacting with the pyrite caused leeching of lead and arsenic from the pot right so that's when the property damage actually occurs and that's when the policies are triggered it's not the placement of the pyrite on the ground that causes the damage it's not the occurrence  look and say ari does the pollution exclusion apply to that second discharge to the release of the lead in the arsenic from the pyrite and the answer is it doesn't because the lead in the arson under south carolina law under greenville county and when a chemical oh no not at all your honor the underlying case is about strict liability because they put the stuff on the ground the numbers that contamination at the site results from planters operation so from a surplus standpoint planter's is liable and that's what this court found that's what judge motss opinion says there they have this firm in the district court they're liable because they put the stuff on the ground we're not talking about whether the insurance companies have an obligation to planter's to ross because they agreed to insure ross for liability act though and read them as unexpected and accidental and when i read the word expected i don't know how you make that anything other than a subjective question because there is an exclusion which is more specific  and specific to the general and the exclusion speaks to the specific situation before us here though that's what i'm saying the words in the excluded there's the exclusion and then there's the exception to the exclusion there's the give back to the exclusion says we don't cover these kinds of polluting events except we're going to cover them if it's an accident and the supreme court says so next the means unexpected an accident of what has to be  accidental has to be the property damage but that's not what i read the case is saying it says the sudden and unexpected is the you say it it's just to be discharged and i think that's wrong i think that the unexpected discharge of the pyrite still like is not an issue is it issue and not the damages arising from that and that's what you say has to be sudden and accidental the damage is arising and that's just not the way i read in the pollution exclusion world there are three categories of state decisions are the ones that say has to be temporally sudden has to be quick has to be an explosion there's a intermediate step which is where i think south carolina law is which ad it can i just i apologize i just want to respond to judgments on the issue what we're saying is that you have to look at the relevant discharge and you have to determine whether that relevant discharge or dispersal release is unexpected and here it's not the pyrite the p ways including a decision that you wrote that you participated in judge said in liberty mutual versus triangle industries you win so i think i must say that that this court had the same reaction as chief judge seymour in the district court to the gyration from the underlying circle a case that s took in which ross disposed of this waste fill they dumped it in the site and they massively contaminated the site by nine hundred thirty three they everyone agrees focusing on the expectation or intent of a discharge of waste material from the occurrence language there's a grant to coverage in the policy in the insuring agreement for property damage caused by an occurrence which is an accident neither expected nor intended from the standpoint of the insured so the damage to be an occurrence must be unexpected and unintended from the standpoint of the insured the pollution exclusion then takes away from that grant the coverage so even though there may be unexpected damage from the insureds standpoint the pollution exclusion says if the insured intended or expected to discharge waste material or pollutant and the property damage arises out of that and you could say it's caused by but for test that if it or if it arises out of that discharge waste materials into o upon the ground there is no coverage and there's a restoring provision to this broad pollution exclusion if the discharge dispersal release or escape is both sudden accidental and they have  that is the majority rule in the united states in in many circuit courts we sided district court decisions state high courts around the country and bring it back to south carolina to how on a chemical supreme court decision the most recent pronouncement from the south carolina supreme court the two thousand and four decision they haven't addressed the pollution exclusion since was that the focus is on the discharge that we must  sensually that we must determine was the discharge in that case of pesticides expected or and or accidental and here it's been conceded by everyone that the placing of the pirate proceeding as they did before chief judge seymour in the circle case that that word has to has to have the same meaning when they come in before judge seymour in the insurance case the temptation  incentive is different when you enter the insurance phase where you're trying to this isn't so we're out of this out of the scope of the pollution exclusion but the point is i  something is a waste material out of your own mouth and in your own papers you uttered it you called witness is you present it expert reports you gave it to roger torrey responses in deposition testimony and then come before me and say it doesn't have a common he was making he said at least as i understood his argument you might not respond to it he said we're not saying that one pollution for purposes of sore or he not making that argument he makes the argument that all of the policy language pollution matters as to how when where and how so and we have occurred i think that's what argument he made that has nothing to do with a position somebody took in an underlying circle action does it does this argument isn't it do you think it does it does he actually took the position in this case in his briefs that this pirate slag material that was generated from one thousand or six to one nine hundred thirty three were there after was a waste material he cited dictionary definitions were put on the you know the reading glasses and and the court looked at the definitions in the dictionary as well the court looked at everything this is where this is one of those real cases where we have a we have the same judge from the circle case deciding the insurance case should all these findings of fact in the circle case that bind those parties they litigated it fully and fairly they spent millions of dollars litigating their case sixteen days of trial you have hypothetical could you have something that everybody agrees is pollution is pollution but yet the insurance in one case there might be there would be insurance coverage and another case there would not be insurance coverage based on the language of the policy is that even possible well the only thing i think they have to be the answer is is yes if i understand the question well wait a second what but the question don't you understand well for example both parties have agreed that that is pollution that there is pollution that cause the damage is pollution but one side all use under specific provision of the policy there is no insurance coverage for that pollution damage and the other side said you misread the policy is in that  that happens all the time that we're talking about the they're missed that one party is misreading the policy absolutely i mean it's fundamentally a question of law about the destroyed damage distinction we say the focus of that exclusion is on the discharge they say that it's the it's the subsequent release that ultimately causes harm that they didn't expect and they went so far as in their briefs  say if they didn't expect the harm from their disposal practices of waste at the site that it is covered under the i'm sorry you're not you know president's address just think precisely the triangle industries decision is clear it's actually one of the seminal cases cited around the country by other circuit courts and district courts in published opinions it's it's mentioned  length in the treatises on insurance issues and and it's from this court liberty versus triangle industries you which which quite clearly said you can not expect harm and yet know you did a discharge and and in the trial court mr ginsburg said to the two to the court nobody for p c s is saying there was an intentional placement of this pyrite slick does it become southern mexico absolutely absolutely so some of the issues become repetitive when we look at the absolute pollution exclusion which goes even beyond it doesn't have an exception to restore this clearly was a disposal it was referred to as a disposal by p c s in the underlying case it was found to be a disposal of waste materials by chief judge seymour so that provision also applies  the benefit that chief judge seymour made the findings of fact about the existence of the contamination at the site she found there was c p h contamination but she also concluded that it was basically bound in the soil was affecting the ground water and the soil is the property that was either owned by ross or alienated by ross and therefore excluded by the own property or the elevated property exclusion it there's no coverage under under sea g l insurance for damage to your own property or property that you later sold so it has to contaminate the ground water and at oral argument before chief judge seymour on summary judgment this summer july tw twelve judge seymour asked that pointed question what evidence do you have that the fire caused c p h contamination and that there was new property damage during fireman's fund policies more than ten years  later and and their answer was they didn't know they didn't know of any evidence and that that was an issue of fact that would have to be ferreted out because they hadn't looked at it and yet that's something that by everyone at the policyholder once that fire happened in the smoke in the suit draped across the site how did they not know it was there how can they say they didn't expect it in later years and  which is the first the most recent pronouncement from the south carolina supreme court that says the policies only cover for property damage that happens during the policy period doesn't cover for property damage happened before doesn't cover for property damage happening after us firing this is is an excess and sure and the reason i wanted to speak separately is because not only does us fire have the same pollution exclusion language by incorporation into its access policies appellants have argued that somehow this excess ensure that i represent has a duty to defend that was breached here and the only thing i want to add to this discussion from what was discussed already is that that is impossible there is no record the stablish in a duty to defend in these policies before you the policies that under which a defense was tendered specifically renounce such a duty to defend they say shall not be called upon to defend of course that wasn't argued one way or the other it's not in the record before you unless you take a look at the policies the language of the policies controls the question of defense so to the extent this discussion was go focus upon some argument that any insured here improperly denied a defense i wanted to make it very clear that there is no legal predicate to call upon these excess insurance companies this excess insurance company to defend this case beyond that we adopt all of the other arguments that farm's one has made and i really don't have any other points to make unless you have any questions for me ok thank issue in circle waste is a technical term in helena chemical the court of appeal said insurance policies are recording their plane an ordinary meeting waste in the circle context is technical waste in insurance policies is impose a forsee ability requirement the arising out of language under the heart's full case which is cited in the briefs in that case the issue was whether or not in a rising out of a inverse condemnation claim  language in a policy precluded a civil can do to defend a civil conspiracy action that alleged a city and county conspired to condemn the property and they said that  they strictly construed that against the insurance company arising out of innate insurance policy is strictly construed against they would interpret it arising out of and i think the district court did is a but for test and i would say it's a reasonably forseeable test it's broader than that but i think it's the whether ross and i this the district court said this and if i see says this ross does not continue the property damage has to be sudden accidental for purposes the pollution exclusion component parts and dispersed across the property at the same time that that that make that call us property damage at the time of that discharge dispersal release or escape so it i think it's some point people got here there is no evidence or the very least a genuine issue material fact that the relevant this shores dispersal release are escape was not intended it was not expected the reason the initial disposal is relevant is because if it was expected that the initial disposal would cause a dispersal discharge release or escape of the component parts then that portion of the pollution exclusion the exception of the pollution exclusion may not apply but that is not the case here there's no evidence that your honour's this case is so much different than trying to industries and how in the chemical and the cases the church site and let me tell you why i think that's goes directly judgeable concern to the point that you've you've made in trying to industries which is  houma chemical the court the supreme court of south carolina says look every day these guys were spilling pesticides on the ground they were spilling chemicals that were contaminated the contaminate itself with what was being spilled that's a lot of chemical what we have here are series of facts that are completely different we have an operation in one thousand six beginning and i think six where they're using rock pyrite they're taking the sulfur from the rock and they're putting the rock down on the ground it's still rock in fact it's less of a dangerous rock at that point because it has less sulfur and it's a sulfur the mixes with the water that causes the acid the cause of the leeching to the science of it and so they're taking this rock they're putting the rock on the ground they're using it constructively to construct a construct roads to fill land in fact the witnesses in this case the record in this case says that they were using it not as a waste but as a useful product after they took the sulfur out of it there the plant manager in the underlying case says the e p a found that the slag was used