Both the insured and insurer sought summary judgment, the insured contending that the insurer had a duty to defend as a matter of law and the insurer contending that it had no such duty as a matter of law.
Summary judgment is appropriate only if there is no genuine issue as to any material fact.
Here the trial court denied summary judgment, finding that there were genuine issues of material fact and the Court of Appeals affirmed. Here there was evidence that SMC stored multiple barrels of liquid waste at its facility, did not identify or otherwise label the barrels in order to assure the proper method of disposal, did not make any attempt to separate wastes from other incompatible wastes, permitted barrels to rust or otherwise deteriorate, did not clean up open and obvious spills, did not properly cover many barrels, and received some types of waste for which it had no treatment facilities. As such, genuine issues of material fact exist as to whether the spills were expected or intended, making summary judgment inappropriate. Because I believe the trial court properly denied the insured's motion for summary judgment, I dissent.