901 F.2d 1368
20 Envtl. L. Rep. 21,428
INTERNATIONAL SURPLUS LINES INSURANCE COMPANY, Plaintiff-Appellee,
ANDERSON DEVELOPMENT COMPANY, Defendant-Appellant.
United States Court of Appeals,
Argued Sept. 27, 1988.
Decided May 7, 1990.
Bruce T. Wallace, Charles W. Borgsdorf (argued), Ann Arbor, Mich., for plaintiff-appellee.
Webb A. Smith, Foster, Swift, Collins and Coey, P.C., Charles E. Barbieri (argued), Lynn K. Richardson, Lansing, Mich., for defendant-appellant.
Thomas W. Brunner, Laura A. Foggan, Leslie J. Cloutier, Wiley, Rein & Fielding, Washington, D.C., Thomas T. Terp, Thomas C. Hill, Taft, Stettinius & Hollister, Cincinnati, Ohio, William F. Greaney, Covington & Burling, Washington, D.C., for amicus curiae.
Before WELLFORD and BOGGS, Circuit Judges; and McQUADE*, District Judge.
WELLFORD, Circuit Judge.
The original panel of this court to hear this case included The Honorable Richard B. McQuade, Jr., a district court judge who resigned his position before a majority opinion could be molded. The author of this opinion was of the view that the decision of the district court in this case should be reversed and remanded following the rationale of Jonesville Products, Inc. v. Transamerica Ins. Group, 156 Mich.App. 508, 402 N.W.2d 46 (1986), leave to appeal denied, 428 Mich. 897 (1987), and the principle of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and Grantham and Mann, Inc. v. American Safety Prod., Inc., 831 F.2d 596 (6th Cir.1987).
Other Michigan courts have considered the issue involved in this case since the Jonesville Products case, but the Michigan Supreme Court has consistently declined to consider the issue.1 Recently, in Upjohn Co. v. New Hampshire Ins. Co., 178 Mich.App. 706, 444 N.W.2d 813 (1989) (per curiam), the Michigan Court of Appeals reaffirmed its decision in Jonesville Products. Even though the leak of the by-product polluting material in Upjohn took place over a three-week span, the Michigan court held that the leak could be both "accidental (i.e., unintended) and sudden (i.e., unexpected) and, therefore, outside the pollution exclusion." 444 N.W.2d at 817. The court also referred to Fireman's Fund Ins. Cos. v. Ex-Cell-O Corp., 685 F.Supp. 621, 625 (E.D.Mich.1987), and United States Fidelityty & Guar. Co. v. Thomas Solvent Co., 683 F.Supp. 1139, 1168-70 (W.D.Mich.1988), and United States Aviex Co. v. Travelers Ins. Co., 125 Mich.App. 579, 336 N.W.2d 838 (1983), in its opinion. Other courts have expressed disagreement that Jonesville Products correctly states the law to be applied in this case.2
Judge Boggs was and is in disagreement with that rationale and would affirm the district court. Ordinarily, under such circumstances, the matter would have to be argued again before a full three judge panel of this court for resolution. In light of the decision of another panel of this court in F. L. Aerospace v. Aetna Casualty & Surety Co., 897 F.2d 214 (6th Cir.1990), however, we feel compelled to rule that, at least for the present, F. L. Aerospace is controlling because it involves the same issue in dispute here. Although the panel in F. L. Aerospace acknowledged that the "Michigan Court of Appeals steadfastly has affirmed its Jonesville definition" of the applicable policy exception, it chose to depart from the Jonesville Products interpretation of the words in the insurance policy in controversy, "sudden and accidental." Thus, a panel of our court has now held that there is no duty on the insurance carrier to defend its insured in circumstances comparable to those in the instant case. We are obligated by court policy and precedent in this court now to adhere to the rationale and decision in F. L. Aerospace.3
Accordingly, we AFFIRM the decision of the district court.
The Honorable Richard B. McQuade, Jr., Judge, United States District Court for the Northern District of Ohio, sitting by designation. (Judge McQuade resigned as judge effective September 30, 1989, and did not participate in this decision)
The Michigan Supreme Court refused to answer the question certified in this case
We have dealt with this same issue in United States Fidelity & Guar. Co. v. Star Fire Coals, Inc., 856 F.2d 31 (6th Cir.1988). In Star Fire, applying the law of Kentucky, we interpreted identical language to relieve the insurer of its duty to defend a lawsuit arising from "coal dust ... generated by the normal operation of the [coal] tipple and ... routinely discharged on a regular, continuing basis ... [despite] various steps [undertaken by Star Fire] to minimize the problem." Star Fire, 856 F.2d at 32. In this case, we are asked to address the same issue under Michigan law. The emissions Anderson produced were by-products of its production of curene 442; Star Fire's emissions were coal dust from its coal mining, cleaning, and loading operation. Both Star Fire and Anderson had some awareness of the problem. Star Fire installed a sprayer; Anderson installed a filter and lagoon
Judge Wellford would dissent, if he were otherwise free to do so, from the result reached herein. We note that Judge James Ryan, formerly a justice on the Michigan Supreme Court, concurred fully in F. L. Aerospace. Jonesville has been cited with approval in Pattison v. Employers Reinsurance Co., 900 F.2d 986 (6th Cir.1990)