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Karen Kaika <br /> August 7, 1996 <br /> Page 4 <br /> Thus, the exclusion does not apply to: 1) costs to clean up groundwater <br /> contamination; 2) costs to remediate off-site contamination; or 3) costs incurred to <br /> clean up contaminated soil on the insured's own property to prevent off-site migration <br /> or groundwater contamination from occurring. <br /> The scenario with TFS fits this paradigm. TFS is required to remediate for <br /> groundwater contamination and soil contamination to prevent offsite migration. <br /> Moreover, the Roeks are claiming that contaminants from soil and water under the <br /> ITS site have contaminated their soils and groundwater, and once Wells Fargo is <br /> formally swept into the picture by the PHS/EBD, Wells Fargo will probably assert that <br /> TFS contributed to soil and groundwater contamination on its site. In sum, any owned <br /> property exclusions are inapplicable. <br /> Accident and Property Damage <br /> Royal queries whether there has been an accident. In Shell Oil Co. v. <br /> Winterthur Swiss Ins. Co. (1993) 12 Cal.AppAth 715, 755, the court held "[a]n <br /> accidental' event is both unintended and unexpected..." The court further opined that <br /> "[a] discharge, dispersal, release or escape of pollutants that is expected is not <br /> accidental, regardless of whether it was not intended." See also Service Control <br /> Corporation v. Liberty Mutual Insurance (1996) 96 Daily Journal D.A.R. 7447. <br /> At TFS, there has been a release of pollutants into the soil and groundwater, <br /> which release was neither expected nor intended. There is no evidence to support an <br /> allegation that the owners of TFS had any knowledge that there had been a release of <br /> any kind into the soil or groundwater at the time the release occurred. The ineluctable <br /> result is that there has been an accident at TFS. <br /> In addressing the existence of a duty to defend in Imcera Group Inc. v. Liberty <br /> Mutual Insurance Company (1996) 50 Cal.Rptr.2d 583, 597, the court held that it was <br /> the obligation of the insurer, at the time a defense was requested, to adequately <br /> investigate and determine whether intentional discharges or property damage had <br /> occurred. The court further opined "For instance, the fact that toxic discharges <br /> occurred over a lengthy period during which [the insured] operated its... facility does <br /> not, without more, establish that [it] expected or intended the property damage that <br /> allegedly resulted...." <br />