Full opinion text
TABLE OF CONTENTS I. Introduction. 1140 A. Background and Procedure. 11.40 B. The Insurance Policies. 1141 1. Aetna’s Comprehensive General Liability Policies. 1141 2. LMI’s Excess and Umbrella Policies . 1142 C. Standard for Summary Judgment. 1143 II. The Expected/Intended Clause. 1143 A. Legal Issues. 1143 1. Burden of Proof .. 1143 2. Objective or Subjective Intent. 1145 B. Aetna’s Motion for Summary Judgment on Its Pre-1961 “Accident”- Based Policies. 1147 C. The Parties’ Cross-Motions for Summary Judgment on the Expected/Intended Issue.'. 1148 1. Chemical Leaman’s Evidence. 1149 2. Defendants’ Evidence..'. 1149 3. Conclusions. 1150 III. Continuous Trigger Theory. 1152 IV. Pollution Exclusion Clause . 1154 A. The Broadwell Line of Cases. 1154 B. The Ambiguous Meaning of the “Sudden and Accidental” Exception- 1155 C. Contra Proferentum vs. “Sophisticated Insured”. 1155 D. The Parties’ Cross-Motions for Summary Judgment. 1156 V. Owned-Property Exclusion. 1157 VI. Late Notice. 1167 A. Substantial Rights Irretrievably Lost. 1158 B. Likelihood of Success in Defending the Underlying Claim. 1159 VII.Failure to Cooperate.:. 1160 VTII. Aetna’s Duty to Defend. 1160 A. Pre-Notice Defense Costs. 1160 B. Post-Notice Defense Costs. 1161 IX. Conclusion. 1162 OPINION BROTMAN, District Judge. Presently before the court are the cross-motions for summary judgment of plaintiff Chemical Leaman Tank Lines, Inc. (“Chemical Leaman”), defendant Aetna Casualty and Surety Co. (“Aetna”), and the London market insurers Robin Anthony Gildart Jackson, et al. (“LMI”). The parties raise a plethora of legal and factual issues for the court’s resolution. I.Introduction A. Background and Procedure In this diversity action, Chemical Leaman seeks a declaratory judgment that defendant Aetna must provide coverage under certain comprehensive general liability (“CGL”) policies and that LMI must provide coverage under certain umbrella and excess liability insurance policies for environmental costs connected to the environmental cleanup of Chemical Leaman’s Bridgeport, New Jersey, facility. Chemical Leaman is a tank truck company specializing in the transportation of various chemicals and other liquids. Chemical Lea-man used the Bridgeport site from at least 1960 to 1985 to clean trucks. From 1960 to 1969, Chemical Leaman placed contaminated rinsewater at its Bridgeport facility into a wastewater treatment system consisting of unlined ponds and lagoons. In 1969, the New Jersey Department of Health responded to community complaints about bad odors and ordered Chemical Leaman to construct a wastewater treatment and/or disposal plant. Chemical Leaman continued to use the pond and lagoons system until 1975, when it installed a water treatment system. By 1977, Chemical Leaman had drained the ponds and lagoons of liquid, dredged the accumulated sludge out of the lagoons, and filled all the ponds and lagoons with brickbat, sand, and concrete. In 1981, the New Jersey Department of Environmental Protection (“DEP”) ordered Chemical Leaman to investigate the extent and degree of groundwater contamination at and around the Bridgeport site. The investigation revealed that the ponds and lagoons were the primary source of groundwater contamination. In 1984, the federal Environmental Protection Agency (“EPA”) placed the site on the Superfund national priorities list pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liabilities Act (“CERCLA”). 42 U.S.C. § 9605. The EPA alleged that Chemical Leaman is strictly liable for damages and cleanup costs resulting from the onsite contamination. In July 1985, Chemical Leaman entered into a consent order with the EPA. Chemical Leaman admitted liability under CERCLA and agreed to undertake a Remedial Investigation and Feasibility Study (“RI/FS”) of the groundwater. Chemical Leaman incurred expenses in performing the RI/FS and is further obligated to pay for all costs of removal or remedial action incurred by the United States or the state of New Jersey, as well as for damages for injury to, destruction of, or loss of natural resources. On or about April 18, 1988, Chemical Lea-man gave notice to Aetna of claims under its applicable CGL policies. On or about March 30, 1989, Chemical Leaman notified LMI. The defendants have refused to defend or indemnify Chemical Leaman for costs already incurred or to be incurred in the future in connection with the cleanup of the Bridgeport site. Chemical Leaman filed the present suit on April 12, 1989. The court understands plaintiffs claims to be limited to coverage for its liabilities resulting from the EPA’s suit under CERCLA. On March 31, 1992, the court granted partial summary judgment in favor of Chemical Leaman on the following issues: 1. New Jersey law governs the construction and interpretation of all the insurance policies involved in the litigation; 2. The cleanup costs which Chemical Lea-man is obligated to pay pursuant to CERCLA with respect to ground and surface water contamination in the vicinity of, but not at, the Bridgeport site constitute property damages under the insurance policies; 3. The “owned property exclusion” does not apply to Chemical Leaman’s remedial measures that are designed to correct injury or to prevent further injury to the ground and surface waters in the vicinity of the Bridgeport site. The court also refused to grant summary judgment in favor of defendants on the issue of coverage for contamination occurring after the date Chemical Leaman received notice from the New Jersey DEP of the extent of the groundwater contamination. Chemical Leaman Tank Lines, Inc. v. Aetna Casualty & Sur. Co., 788 F.Supp. 846 (D.N.J.1992). Presently before the court are the various motions of the parties for summary judgment. On November 23,1992, the court held oral argument on these motions and reserved its decision. Trial is scheduled to commence on March 15, 1993. B. The Insurance Policies 1. Aetna’s Comprehensive General Liability Policies ■ Chemical Leaman purchased comprehensive general liability insurance (“CGL”) from Aetna covering successive years, from April 1, 1959 through April 1, 1985. Pl.’s 12G Statement ¶4. These comprehensive liability policies were standard form insurance agreements utilized by Aetna and some other insurance companies throughout the period 1960-1985. Chemical Leaman played no role in drafting or negotiating the terms of these policies. Joint Final Pretrial Order HIV.5. April 1, 1959 — April 1, 1961 Aetna Policies From April 1, 1959 through April 1, 1961, Aetna insured Chemical Leaman under its 1955 standard policy form. Pursuant to the terms of the policies in effect- during this period, Aetna agreed to pay on behalf of Chemical Leaman: • all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident. The policy did not define the term “accident.” Pl.’s 12G Statement ¶ 5. The policies obligated Aetna to defend any suit against the Insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent. Pl.’s 12G Statement ¶ 6. April 1, 1961 — April 1, 1967 Aetna Policies From April 1, 1961 through April 1, 1967, Aetna continued to insure Chemical Leaman under its 1955 standard policy form. However, these policies substituted the word “occurrence” for the word “accident.” An “occurrence” was defined as: an event which causes injury during the policy period or a continuous or repeated exposure to conditions which results in injury to persons or tangible property during the policy period, if such injury is neither expected nor intended by the insured. Pl.’s 12G Statement ¶ 7. April 1, 1967-April 1, 1973 Aetna Policies From April 1, 1967 through April 1, 1973, Aetna insured Chemical Leaman under its 1966 standard policy form. Pursuant to the terms of these policies, Aetna agreed to pay on behalf of Chemical Leaman: all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence. The policies defined an “occurrence” as: an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended, from the standpoint of the insured. The policies defined the term “property damage” as “injury to or destruction of tangible property.” PL’s 12G Statement ¶ 9. Pursuant to the terms of these policies, Aetna also agreed to: defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent. PL’s 12G Statement ¶ 10. April 1, 1973 — April 1, 1985 Aetna Policies From April 1, 1973 through April 1, 1985, Aetna insured Chemical Leaman under its 1973 standard policy form. These policies obligated Aetna to pay: all sums which the insured shall become legally obliged to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence. The policies defined an “occurrence” as: 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. The term “property damage” was defined in these policies as: (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. PL’s 12 Statement ¶ 13. Aetna also agreed to: defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent. PL’s 12G Statement ¶ 14. Pollution Exclusion Clause From April 1, 1971 through April 1, 1985, Aetna’s policies contained a pollution exclusion clause, which stated: It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. PL’s 12G Statement ¶¶ 11, 15. Notice of Claim Provisions Each insurance policy issued by Aetna to Chemical Leaman from April 1,1959 through April 1,1985, provided that in the event of an accident or occurrence, “written notice ... shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.” PL’s 12G Statement ¶ 16. The insurance policies also provided that “[i]f claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.” PL’s 12G Statement ¶ 17. Cooperation Provisions Each insurance policy issued by Aetna to Chemical Leaman from April 1, 1959 through April 1, 1985, provided that the insured shall cooperate with Aetna and generally, among other things, assist in making settlements, in the conduct of suits, in securing and giving evidence and in obtaining the attendance of witnesses. PL’s 12G Statement ¶ 18. 2. LMI’s Excess and Umbrella Policies April 1, 1958-April 1, 1985 LMI Excess and Umbrella Policies Pursuant to the terms of each excess insurance policy issued by LMI to Chemical Leaman for the period April 1, 1958 through April 1, 1985, LMI agreed to provide the same basic coverage as issued by Aetna. The LMI policies also included substantially the same notice and duty to cooperate provisions as found in the policies issued by Aet-na. April 1, 1971 — April 1, 1985 Pollution Exclusion Clauses Each LMI insurance policy in effect from April 1, 1971 to April 1, 1985, contain a pollution exclusion clause. The LMI policies in effect from April 1, 1971 to April 1, 1974, and from April 1, 1977 to April 1, 1985, exclude coverage for damage “caused by seepage, pollution or contamination,” unless “such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this insurance.” LMI 12G Counterstatement ¶ 29. The LMI policies in effect from April 1, 1974 to April 1, 1977, contain a pollution exclusion clause identical to the one contained in the relevant Aetna policies. C. Standard for Summary Judgment The standard for summary judgment is a stringent one. A court may grant summary judgment only when the materials of record show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Tudor Dev. Group, Inc. v. United States Fidelity & Guar. Co., 968 F.2d 357, 359-60 (3d Cir.1992). In deciding whether there is a disputed issue of material fact, the court must resolve doubts in favor of the non-moving party. Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir.1992). The threshold inquiry is whether there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A motion for summary judgment must be granted if the party opposing the motion “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party carries its burden of establishing the absence of a genuine issue of material fact, then the non-moving party “must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Thus, if the non-movant’s evidence is merely “color-able” or is “not significantly probative,” the court may find that the material facts are not in genuine dispute and adjudicate the matter in accordance with the substantive law. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Finally, if summary judgment is denied, the court may, in the course of decid-, ing the motion, “ascertain what material facts exist without substantial controversy” and deem these facts as established for trial. Fed.R.Civ.P. 56(d). II. The Expected/Intended Clause A. Legal Issues 1. Burden of Proof The parties dispute who bears the burden of proof for establishing whether or not the alleged coverable damages caused by Chemical Leaman were “expected or intended.” The applicable rules of New Jersey law are clear. The party seeking coverage bears the burden of bringing its claim within the basic terms of the insurance policy. Hartford Accident & Indem. Co. v. Aetna Life & Casualty Ins. Co., 98 N.J. 18, 26, 483 A.2d 402 (1984). However, it is the insurer that carries the burden of proving that the loss comes within a policy exclusion. Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 399, 267 A.2d 7 (1970). The defendants read the expected/intended clause as part and parcel of the basic grant of ■ insurance coverage. Chemical Leaman, on the other hand, argues that the expected/intended clause is an exclusion, thereby placing the burden of proof on the defendants. The New Jersey Supreme Court described the “basic coverage” provided by policies like the ones in the case at bar as the carrier’s obligation to “pay on behalf of the insured all sums which the insured shall become legally obliged to pay as damages because of bodily injury ... to which this insurance applies, caused by an occurrence.” Hartford v. Aetna, 98 N.J. at 27, 483 A.2d 402. It is, thus, beyond dispute that the insured must prove an occurrence in order to obtain coverage. After 1961, Chemical Lea-man’s policies" with defendants contained clear definitions of an occurrence — namely, “an accident or event which results in property damage neither expected nor intended from the standpoint of the insured.” The court finds that this entire definition of occurrence constitutes the grant of basic coverage provided under defendants’ insurance policies, and that the insured bears the burden of proving all of the definition’s elements, including the expected/intended clause. Plaintiff would have the court sever this definition of occurrence into two parts. The first part would provide the basic grant of coverage for any accident or event which results in property damage. The second part would operate to exclude a certain category of events resulting in property damage, namely those that are expected or intended by the insured. Dividing the definition into two parts like this, however, is not a reasonable or commonsensical reading. The policies clearly and unambiguously indicate that the full sentence comprises the definition of an occurrence. There is no indication from the language of the definition or from the surrounding context that the policy limits either basic coverage or the definition of occurrence to the first part of the sentence only. Moreover, the court is unable to imagine, and plaintiff has failed to suggest, an alternative phrasing that more clearly and unambiguously incorporates the concept of unintended and unexpected damages into the definition of occurrence. The court finds that the only reasonable reading of the policy is that the intended/expected concept is constitutive of the definition of occurrence. Therefore, plaintiff bears the burden of proof on this issue. Chemical Leaman presents several arguments in support of the proposition that the expected/intended clause is an exclusion. It first points out that the insurance carriers originally drafted the expected/intended clause as an exclusion, but then'decided to incorporate the clause into the definition of an occurrence. See PL’s Br. at 12; see also Aetna’s Br. at 19 & n. 40. However, New Jersey law provides that “an insurance policy should be interpreted according to its plain and ordinary meaning.” Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 179, 607 A.2d 1255 (1992). The insurance policies’ drafting history is, therefore, irrelevant where, as here, the court finds the policy language to be clear and unambiguous. See Longobardi v. Chubb Ins. Co. of New Jersey, 121 N.J. 530, 537, 582 A.2d 1257 (1990). Plaintiff also cites to cases that describe the expected or intended clause as an “exclusion.” See J.T. Baker, Inc. v. Aetna Casualty & Sur. Co., 135 F.R.D. 86, 90 (D.N.J.1989); Ambassador Ins. Co. v. Montes, 76 N.J. 477, 490-92, 388 A.2d 603 (1978) (Pashman, J., concurring); Lyons v. Hartford Ins. Group, 125 N.J.Super. 239, 245-47, 310 A.2d 485 (App.Div.1973), certif. denied, 64 N.J. 322, 315 A.2d 411 (1974). None of these decisions, however, uses this language in deciding the precise issue now before-this court— that is, the burden-of-proof structure under liability policies that provide coverage only for damages neither expected nor intended by the insured. J.T. Baker was a discovery case. The specific issue before the court was not which party bears the burden of proof but rather whether the insured’s intent should be evaluated from an objective or subjective viewpoint. 135 F.R.D. at 88, 90-92. Similarly, Justice Pashman in his concurrence in Montes addressed not the burden of proof issue but rather whether the intent inquiry should focus on the insured’s intent to commit a wrongful act or on her intent to cause the resulting damages. 76 N.J. at 490-92, 388 A.2d 603. Finally, in Lyons, the court construed an expected/intended clause that did, in fact, appear as an explicit policy exclusion. 125 N.J.Super. at 244, 310 A.2d 485. In sum, plaintiff cites no case applying New Jersey law that characterizes the expected/intended clause as an exclusion for the purpose of determining who bears the burden of proof. A final concern informs this court’s holding that the expected/intended clause is constitutive of the basic grant of coverage under defendants’ liability policies. Plaintiff’s proposed reading of the expected/intended clause presupposes that a liability policy may cover not only unintended damages caused by intentional acts but intended damages as well. However, just as “[o]ne cannot obtain insurance for a risk that the insured knows has already transpired,” Gloucester Township v. Maryland Casualty Co., 668 F.Supp. 394, 403 (D.N.J.1987), the New Jersey Supreme Court has stated that public policy favors “[t]he exclusion of intentional injury from coverage” in order to prevent individuals from inflicting damage because they know they will be insured. Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 181, 607 A.2d 1255 (1992) (quoting Burd v. Sussex Mut. Ins. Co., 56 N.J. at 398-99, 267 A.2d 7). Plaintiffs proposed reading of the policy stands in potential-conflict with this underlying concern. 2. Objective or Subjective Intent As ruled above, plaintiff, as part of its ease for proving that its.losses fall within the basic coverage of its insurance policies with defendants, bears the burden of, establishing that Chemical Leaman neither expected nor intended to contaminate the soil and groundwater at the Bridgeport site. The parties, however, disagree, on the standard for evaluating Chemical Leaman’s intentions. Underlying this dispute is the well established distinction between (1) the intent of the insured in performing the acts that cause damage and (2) the intent of the insured in causing the damage itself. See Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 181-83, 607 A.2d 1255 (1992). Tort law focuses on the first kind of intent. An individual who intentionally performs a particular act will be liable for damage caused by the act, so long as this damage is a foresee-' able and probable result. In contrast, insurance law generally focuses on the second kind of intent. An insured who intentionally performs an act that causes damage may be entitled to coverage, so long as the insured did not intend to cause the damage. In other words, a carrier may be held liable for coverage for the unintentional result of an insured’s intentional act. See Lyons v. Hartford Ins. Group, 125 N.J.Super. 239, 247, 310 A.2d 485 (App.Div.1973), certif. denied, 64 N.J. 322, 315 A.2d 411 (1974). In line with these principles, the intent inquiry in the present case focuses not on Chemical Lea-man’s intent to place contaminated water in ponds and lagoons at the Bridgeport site, but rather on Chemical Leaman’s intent to cause the resulting soil and groundwater damage which it is now obligated to remediate. The parties dispute whether the inquiry into Chemical Leaman’s intent is a subjective or objective one. The New Jersey Supreme Court has recently and clearly addressed this issue. The general rule requires an evaluation of “the insured’s subjective intent to determine intent to injure.” Voorhees, 128 N.J. at 185, 607 A.2d 1255. However, where “exceptional circumstances” are present that “objectively establish the insured’s intent to injure,” the trier of fact may presume the insured’s intent “from the act without an inquiry into the actor’s subjective intent.” Id. at 184, 607 A.2d 1255. These exceptional cases arise when the insured’s “actions are particularly reprehensible.” Id. at 185, 607 A.2d 1255. Defendants ask this court to invoke the Voorhees particularly-reprehensible-act exception and to mandate an objective inquiry. Under this standard, the trier of fact may presume from an insured’s intentional acts which cause damage that the insured intended to cause the particular resulting damage. The Supreme Court in Voorhees identified the case of sexual abuse of children in a day-care center as a paradigm example of presuming the insured’s subjective intent to cause a particular kind of damage from the insured’s intent to perform the acts that cause that damage. 128 N.J. at 184-85, 607 A.2d 1255 (citing Atlantic Employers v. Tots & Toddlers Pre-School Day Care Center, 289 N.J.Super. 276, 571 A.2d 300 (App.Div.), certif. denied 122 N.J. 147, 584 A.2d 218 (1990)). As the court observed, “sexual assault of children is so inherently injurious that it can never be an accident.” Id. 128 N.J. at 185, 607 A.2d 1255. Thus, this court must address whether Chemical Leaman’s acts at the Bridgeport site were so reprehensible as to require a presumption that Chemical Leaman expected or intended to cause the groundwater and soil damage. Defendants claim that Chemical Leaman’s “design and implementation of an unlined lagooning system at the Bridgeport Terminal” represent an example of particularly reprehensible and egregious behavior. LMI’s Reply Br. at 8; see also Aetna’s Br. at 15. But the crux of their argument is that “Chemical Leaman knew that their unlined lagoons would cause groundwater contamination.” LMI’s Reply Br. at 14 (emphasis added). While the facts underlying this proposition may succeed in excluding coverage by proving that Chemical Leaman expected or intended to cause groundwater and soil damage, they fail in the present context to establish that Chemical Leaman’s behavior was particularly reprehensible. The central issue in this litigation is whether Chemical Leaman knew that its Bridgeport rinsewater treatment system was so inadequate that its use would result in harm to the environment. The record, however, contains abundant evidence that Chemical Lea-man designed and built the facility to prevent this result. E.g. McLane Report at 2-3, Pl.’s App.Ex. 17; Elston Dep. at 132, 137, 214; Ford Dep. at 192; Middleton Dep. at 85. In addition, there is testimony that other companies with similar wastewater treatment problems used unlined ponds and lagoons. See Middleton Dep. at 105-06; Ford Dep. at 315. The rinsewater treatment system was more than a “series of holes in the ground.” Rather, it represented Chemical Leaman’s attempt, however flawed, at waste disposal. This fact distinguishes the present case from Morton International v. General Accident Ins. Co. of Am., No. A-895-89T3, 1991 WL 348049 (N.J.Super.App.Div. Oct. 2, 1991). There the Appellate Division granted summary judgment to the defendant insurance companies based on the objective approach. The insured in Morton International allowed mercury-laden effluent to flow, untreated, into a nearby creek from 1961 to 1970. From 1970 to 1974, the insured’s use of a waste treatment system abated but did not completely halt the flow of mercury into the creek. Id. at **3-4. Based on these facts, the Appellate Division applied the objective approach and granted summary judgment to the defendant insurance companies, finding that the insured’s behavior of “[tjhrowing tpxic waste out into the meadow-lands,” id. at *16, to be so inherently injurious as to be indistinguishable from the child abuse paradigm. Id. Unlike in Morton International, the proof in the present case tends only to establish that Chemical Leaman knew that, despite its treatment system, the toxins in the rinsewa-ter were causing damage to the groundwa-' ter. This evidence goes to the central factual issue of whether the expected/intended clause precludes coverage. But it does not rise to so reprehensible a level as to trigger the Voorhees exception. The court, therefore, holds that the Voorhees particularly-reprehensible-act exception is inapplicable to the present case. Hatco Corp. v. W.R. Grace & Co., 801 F.Supp. 1334, 1375-76 (D.N.J.1992). Plaintiffs burden of proof is to show that Chemical Leaman neither subjectively intended to cause nor was substantially certain it was causing soil and groundwater damage. Ambassador Ins. Co. v. Montes, 147 N.J.Super. 286, 292, 371 A.2d 292 (App. Div.1977), aff'd on other grounds, 76 N.J. 477, 388 A.2d 603 (1978). B. Aetna’s Motion for Summary Judgment on Its Pre-1961 “Accident”-Based Policies Aetna asks for summary judgment in its favor on the issue of coverage under its pre-1961 policies. These policies provided coverage for damage resulting from an “accident” rather than from an “occurrence,” as in Aet-na’s post-1961 policies. Aetna makes two arguments. It first contends that these accident-based policies covered only an event, not a process. Since, according to Aetna, there can be no dispute that the groundwater and soil contamination at issue were caused by a long-term process rather than a single, bounded event, summary judgment is appropriate. The pre-1961 policies did not define the word “accident.” Accordingly, the court’s task is to construe this term. The only New Jersey Appellate Division opinion that has apparently touched upon this issue in the context of environmental pollution is Diamond Shamrock Chem. v. Aetna Casualty & Sur. Co., 258 N.J.Super: 167, 609 A.2d 440 (App.Div.1992). In that case, the trial judge excluded soil and water contamination from coverage under an accident-based policy, ruling that the term “accident” means “a discrete fortuitous event which happens within a short time at a specific time and place.” Id. at 199, 609 A.2d 440.. The Appellate Division, deciding the case on other grounds, did not review the propriety of this ruling. Id. The court did, however, point to conflicting lines of authority in New Jersey case law on whether the term accident contains a temporal aspect. Id., at 199-200, 609 A.2d 440. New Jersey law provides that the terms of an insurance contract should be understood according to their popular and common meaning. See Kindervater v. Motorists Casualty Ins. Co., 120 N.J.L. 373, 376, 199 A. 606 (1938). Hówev'er, “[w]hen the meaning of a phrase is ambiguous, the ambiguity is resolved in favor of the insured ... and in line with an insured’s objectively-reasonable expectations.” Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 175, 607 A.2d 1255 (1992) (citation omitted); cf. infra Part IV.C. The court finds that the term accident is ambiguous when viewed in the context of liability for long-term environmental contamination. - The 1957 Black’s Law Dictionary defined the term accident as follows: In its most commonly accepted meaning, or in its ordinary or popular sense, the word may be defined as meaning a fortuitous circumstance, event, or happening, an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens .... Black’s Law Dictionary 30 (4th ed. 1957), quoted in Moffat v. Metropolitan Casualty Ins. Co. of New York, 238 F.Supp. 165, 170 (M.D.Pa.1964). Absent from this definition is any limitation of an accident to a short-term event. Relying on this definition, courts have applied aeeidenUbased policies to polluting processes that occur over a long period of time. See Moffat, 238 F.Supp. 165 (liability resulting from long-term burning of coal mining wastes covered under accident-based policy). Because the common understanding of the term “accident” does not necessarily exclude long-term happenings, this court views the term- as ambiguous and gives it a meaning that will result in coverage in the present case. Accordingly, the court construes the word “accident” in the pre-1961 policies to cover the long-term soil and groundwater contamination process at issue in the present case. Having ruled that an .accident-based policy can cover environmental damage to soil and groundwater over the course of many years, the court must now determine the appropriate intent standard. The New Jersey courts have spoken more clearly on this matter, defining the word “accident,” as an “ ‘unexpected happening without intention or design.’_ Under this test, a volitional act by the insured nevertheless qualified ■ as an “accident” if the insured did not specifically intend to cause the resulting harm or [was] not substantially certain that such harm w[ould] occur.” Broadwell Realty Serv. Inc. v. Fidelity & Casualty Co., 218 N.J.Super. 516, 532, 528 A.2d 76 (App.Div.1987) (citations omitted); see also Morton Int’l, Inc. v. General Accident Ins. Co. of Am., No. A-895-89T3, 1991 WL 348049 **19-21 (N.J.Super.App.Div. Oct. 2, 1991). Diamond Shamrock, 258 N.J.Super. at 200, 609 A.2d 440; SL Indus, v. Am. Motorists Ins. Co., 248 N.J.Super. 458, 465, 591 A.2d 677 (App.Div.1991), aff'd as modified and remanded, 128 N.J. 188, 607 A.2d 1266 (1992). In other words, New Jersey law defines the term “accident” in the accident-based policies in substantially the same manner as the definition of an “occurrence” in the occurrence-based policies — an event neither expected nor intended by the insured. In light of the above analysis, plaintiff at trial will bear the same standard of proof on the pre-1961 accident-based policies as it will on the occurrence-based policies. However-, unlike with the post-1961 policies, Aetna challenges whether any soil or groundwater damage occurred to trigger the pre-1961 policies. The parties stipulated that Chemical Leaman provided tank truck cleaning services “since sometime in 1960.” Joint Final Pretrial Order ¶ IV.30. Indeed, by .March 1961, the record is clear that Chemical Lea-man was using “basins” to collect wastewa-ters after it cleaned the tank trucks. See Letter from William T. Frank, Aetna’s Ex. 8. Plaintiffs expert hydrogeologist states that Contaminated rinsewater from the three settling ponds started migrating through the soil to underlying ground water almost immediately after the beginning of pond operation in 1960. Contaminated rinsewa-ter from the three settling ponds started migrating through the soil to underlying ground water almost immediately following the beginning of lagoon operation in 1962. MeLane Report at 12, Pl.’s App.Ex. 18. Aet-na does not challenge this conclusion. In light of this undisputed fact, the court finds that groundwater and soil damage occurred sometime in 1960. Accordingly, the court holds that property damage triggered Aet-na’s April 1, 1960 through April 1, 1961, policy. Chemical Leaman, however, has presented no evidence of damage that could have triggered the April 1, 1959 through April 1, 1960, policy. Accordingly, the court grants summary judgment in Aetna’s favor on this policy. Chemical Leaman may not recover under Aetna’s 1959-1960 policies. C. The Parties’ Cross-Motions for Summary Judgment on the Expected/Intended Issue The parties have submitted cross-motions for summary judgment on all policies on the issue of whether Chemical Leaman expected or intended to cause soil and groundwater damage. As ruled above, Chemical Leaman bears the burden of proof of showing that it neither expected nor intended to cause the disputed damages for each of defendants’ policies. In resolving this fact issue, the jury must evaluate Chemical Leaman’s subjective intent to cause the particular damage for which plaintiff now seeks. indemnification— namely soil and groundwater damage. 1. Chemical Leaman’s Evidence Plaintiff presents evidence that Chemical Leaman’s rinsewater treatment system was designed to prevent harm to the environment by facilitating the elimination of toxic chemicals through natural processes. The rinse-water from Chemical Leaman’s tank cleaning operations flowed into a series of unlined ponds and lagoons. Chemical Leaman designed this system to enhance the cleansing and removal of chemical constituents from the rinsewater through natural processes, such as phased gravity separation, sedimentation, floatation, microbial biodegradation, aeration, percolation, and evaporation. For example, the design concept limited the depth of the ponds to five feet in order to allow sunlight penetration and enhanced bacteriological degradation. In addition, the system contemplated that rinsewater would percolate down through the soil, and that adsorption, absorption, and attenuation by the soil, as well as microbial biodegradation, would remove chemical contaminants. The system further relied on gravity to separate materials by allowing the heavier materials to settle to the bottom of the pond or lagoon and the lighter materials to float to the top. Chemical Leaman then periodically removed settled particles or floating materials through dredging and skimming. Each pond or lagoon was connected to the next by a “tee” pipe, which, according to plaintiff, permitted only the cleanest rinsewater to pass to the next pond or lagoon. The fourth and fifth lagoons contained aeration devices to increase the oxygen level in the lagoon, thereby enhancing microbial biodegradation. An overflow pipe in the last lagoon operated as a safety valve to prevent a rupture in the lagoon dike. Plaintiff has submitted evidence that the individuals who designed and oversaw the rinsewater treatment system did not expect or intend to cause soil or groundwater damage. E.g. Elston Aff. ¶¶ 3, 4 (attached as Ex. 3 to Pl.’s App. of Exs.). The.record also contains testimony from individuals familiar with the Bridgeport site, as well as from the insurers’ expert, that the rinsewater treatment system could and did perform some or all of the purifying functions for which it was designed. Ford Dep. at 203-05; Lakhani Dep. at 77-78; Swanson Dep., Vol. II, at 48-50, 56-58. Moreover, the use of unlined lagoons and ponds may have been standard practice in the truck cleaning business as well as in some other industries utilizing wastewater disposal methods. E.g. Middleton Dep. at 105-06; Ford Dep. at 315; Robinson Dep. at 72-73. 2. Defendants’ Evidence Defendants’ evidence comprises three main categories. First, defendants introduce “state-of-the-art” scientific evidence to show that Chemical Leaman must have known that the Bridgeport rinsewater treatment system would contaminate the soil and groundwater. Second, defendants proffer evidence of investigations into environmental pollution occurring at the Bridgeport site. Third, defendants present evidence of Chemical Lea-man’s knowledge of soil and groundwater contamination at Chemical Leaman truck cleaning sites other than the Bridgeport facility. State-of-the-Art Scientific Evidence According to defendants, it was well known at the time the Bridgeport facility opened that unlined lagoons had a propensity to pollute soil and groundwater. For example, one scientific text, published in 1955, states: Absorption lagoons are specifically designed to permit seepage of liquid into the ground. This seepage ultimately reaches a stream or an underground water stratum; hence absorption lagoons should not be-employed for toxic wastes. Gurnham, Principles of Industrial Waste Treatment 319 (1955). Similarly, defendants present evidence of rinsewater treatment techniques used to clean railroad tank cars. Thus, the General American Transportation-Corporation apparently employed a “large, impermeable solar evaporation basin ... coated with an asphaltic concrete mix” to treat rinsewater. LMI Reply Br. at 12. Defendants assert that the designers of Chemical Leaman’s Bridgeport system, as professional sanitary engineers who kept up with current development, necessarily must-have been aware of this scientific information, and therefore must have known that the contaminants would pollute the soil and groundwater. Bridgeport Site Evidence Defendants submit evidence that Chemical Leaman was aware that its Bridgeport system’ vias causing environmental problems. The record contains reports of individuals and monitoring entities that, at various times, expressed concern that waste material' was flowing directly into a nearby swamp and creek. LMI’s 12G Statement ¶¶ 9; 28, 57, 77, 81, 87. A 1966 petition signed by residents living near the Bridgeport facility complained “that matters and things-emanating from the property of Chemical Leaman Tank Line, Inc., have permeated food stuff and growing things.” Aetna’s Ex. 21. In a 1970 report, the New Jersey DEP stated that Chemical Leaman “is still discharging objectionable materials into the waters of the State.” Aetna’s Ex. 27. Also in 1970, a senior public health engineer in .New Jersey found that the high phenols concentration in the wastewater “may produce toxic conditions in the swamp and stream.” Aetna’s Ex. 34. The record further contains evidence showing that Chemical Leaman was regularly informed that its facility was causing air pollution. See Aetna’s Exs. 8, 44, 69. Other Chemical Leaman Sites Finally, defendants present evidence that Chemical Leaman’s problems at other tank cleaning sites gave the company actual knowledge that the use of unlined ponds and lagoons would contaminate the soil and the groundwater. For example, in 1960, West Virginia environmental authorities informed Chemical Leaman that the use of storage ponds in Putnam county had resulted in groundwater pollution. LMI’s 12G Statement ¶ 5. Then in 1969, West Virginia ordered Chemical Leaman to stop the use of these lagoons because contaminated waters were leaching and seeping into the groundwater. LMI 12G Statement ¶ 26. In 1966, a consultant commissioned to investigate a Chemical Leaman site in Pennsylvania stated that “[without a groundwater and substrata study, we cannot be sure that some wastewa-ter infiltration does not occur.” LMI’s 12G Statement ¶ 22. Another consultant' warned that “no microbial degradation” was occurring in the lagoons at Chemical Leaman’s West Cain Township site. The consultant recommended that Chemical Leaman “take steps to insure that so long as dumping is continued into these pits no highly toxic materials will be added to them.” LMI’s 12G Statement ¶20. 3. Conclusions The court first finds that defendants have presented abundant evidence tending to establish Chemical Leaman’s knowledge of the deleterious effect of its Bridgeport rinse-water treatment system on the soil and groundwater. A reasonable juror may fairly conclude from this material that plaintiff has failed to prove by a preponderance of the evidence that Chemical Leaman neither expected nor intended its system of ponds and lagoons to cause this damage. Accordingly, Chemical Leaman’s motion for summary judgment on the expected/intended requirement is denied. , The more difficult question is whether the present record requires the court to find that there can be no genuine dispute that Chemical Leaman did intend to pollute the soil and groundwater. The court looks to two recent cases for assistance. In Diamond Shamrock Chemical v. Aetna Casualty & Surety Co., 258 N.J.Super. 167, 609 A.2d 440 (App.Div.1992), the Appellate Division upheld the Chancery Division’s finding, after a full bench trial on the merits, that the insured, Diamond, expected and intended to pollute the environment at its Agent Orange manufacturing facility in Newark, New Jersey. The evidence at. trial established that Diamond’s management knew of the hazardous nature of the chemicals it was producing. Id. at 182-83, 609-A.2d 440. Despite this knowledge, Diamond failed to take steps to prevent the emission of these chemicals into the environment. The company regularly vented contaminants directly into the atmosphere. Id. at 214, 609 A.2d 440. The plant commonly experienced leaks and spills in the manufacturing area, and when employees cleaned the floor, some of the run-off flowed directly into a nearby river. Id. Pipes carrying contaminants leaked. Id. at 184-85, 609 Á.2d 440. When the company washed down railroad cars that hauled Agent Orange, the effluent seeped onto the tracks and into the ground. Id. at 185, 609 A.2d 440. After reviewing this evidence, the Appellate Division affirmed the lower court’s determination “that Diamond knew ‘the nature of the chemicals it was handling,’ knew that ‘they were being continuously discharged into the environment,’ and knew that ‘they were doing at least some harm.’ ” Id. at 211, 609 A.2d 440. The court in Hatco Corp. v. W.R. Grace & Co., 801 F.Supp. 1334 (D.N.J.1992), addressed summary judgment motions on the expected or intended requirement in a case similar to the one at bar. There, the insured brought suit against its primary and excess insurance carriers for coverage on its cleanup liability pursuant to CERCLA. The insured operated an industrial chemical manufacturing facility in Ford, New Jersey, between 1959 and 1978. Early in the plant’s history, effluent containing hazardous byproduct chemicals was pumped directly into streams and ditches that led directly into the Passaic River. In the early to mid 1960s, the insured built unlined ponds to hold the effluent so that chemical products could be recovered, reprocessed, and then sold. Later, the insured installed clay-lined lagoons and a sewer line that connected to a regional authority’s industrial sewer system. Id. at 1343. The court in Hateo found that the carriers had presented evidence establishing that the insured knew in the 1960s that its waste disposal practices caused extensive surface water and air pollution. Id. at 1376. The carriers also submitted evidence tending to show the insured’s' knowledge in the mid' 1960s of the possibility that effluent pumped into unlined holding ponds could seep into the ground. Id. at 1376. The court, however, refused to presume, as a matter of law, that this evidence amounted to undisputed proof that the insured expected or intended to cause soil and groundwater damage. Accordingly, the carriers’ motions for summary judgment were denied. Id. The court reads Diamond Shamrock and Hateo to establish the following standards for granting summary judgment in defendants’ favor in the present case. The record must reflect no genuine disputes as to three factual propositions. First, Chemical Lea-man must have known of the environmental hazards of the contaminants it was putting into its ponds and lagoons. Second, Chemical Leaman must have known that the contaminants in the ponds and lagoons were seeping into the soil and groundwater. Third, Chemical Leaman must have known that the contaminants that were seeping into the soil and groundwater were causing permanent damage to the soil and groundwater. If these factual predicates are established on the present record, then the court may rule as a matter of law that Chemical Leaman expected or intended to cause soil and groundwater contamination. Knowledge of the Environmental Hazards of the Contaminants The entire thrust of plaintiffs evidence on the expected/intended issue is that Chemical Leaman designed its unlined ponds and lagoons treatment system to remove contaminants from the rinsewater. In light of this argument, plaintiff cannot reasonably contest the fact that it was aware of the environmental hazards of the contaminants it placed into the rinsewater treatment system. The court, therefore, deems this fact as established. See Fed.R.Civ.P. 56(d). ■ Knowledge That the Contaminants Were Seeping Into the Soil and Groundwater Analysis of this factual issue must distinguish between soil and groundwater. There can be no dispute that Chemical Leaman knew that the contaminants were seeping into the soil. Chemical Leaman left the ponds and lagoons unlined precisely because one of the goals of the rinsewater treatment system was to utilize the soil in the cleansing process. Accordingly, the court deems this to be an established fact. See Fed.R.Civ.P. 56(d). . In contrast, the court finds that the state of Chemical Leaman’s knowledge with respect to the seepage of contaminants into the groundwater remains in dispute. Evidence in the record indicates that Chemical Lea-man was at various times informed that contaminants from the rinsewater treatment system could reach or were reaching the groundwater. However, Chemical Leaman is entitled to challenge the relevance, materiality, credibility, and weight that should be given to this material. For example, plaintiff argues, and a jury may reasonably find, that Chemical Leaman understood groundwater contamination at facilities other than the Bridgeport terminal to be site specific. Cf New Castle County v. Hartford Accident and Indem. Co., 933 F.2d 1162, 1191-92 (3d Cir.1991). Accordingly, Chemical Leaman’s knowledge of the seepage of contaminants into the groundwater remains a genuine issue of fact that must be resolved at trial. Knowledge That the Contaminants Were Causing Permanent Damage The court finds that a genuine dispute exists on whether Chemical Leaman intended that the rinsewater treatment system at its Bridgeport facility result in the contamination of the soil. It is true that Chemical Leaman’s rinsewater treatment system resulted in known contaminants settling in the soil at the bottom of the ponds and lagoons. It is also true that this fact, when combined with the fact established above that Chemical Leaman knew of the deleterious effect on the environment of the contaminants in the rinsewater, would normally lead to the conclusion that Chemical Leaman knew that permanent damage to the soil would result. However, there is evidence that Chemical Leaman may have believed it rid the soil of these contaminants when it periodically dredged the bottom of the ponds and lagoons. Moreover, there is testimony that the designers and operators of the unlined rinsewater treatment system believed that the processes of filtration, biodegradation, and adsorption would remove and breakdown the contaminants, much like a domestic septic system was thought to operate. See El-ston Dep. at 137-38; Ford Dep. at 386-87. A jury may reasonably infer from this evidence that Chemical Leaman neither expected nor intended to contaminate the soil, even though it-placed known pollutants into the soil. The court also finds that Chemical Lea-man’s knowledge that the seeping contaminants would cause permanent damage to the groundwater is necessarily a disputed issue given that it remains an open factual issue for resolution at trial. Based on the foregoing analyses, the court denies the defendants’ motions for summary judgment on the expeeted/intended issue. III. Continuous Trigger Theory The parties are in agreement that between 1960 and 1975, Chemical Leaman daily placed between 10,000 and 20,000 gallons of contaminated rinsewater into the unlined ponds and lagoons at the Bridgeport site. See Aetna’s Br. at 16; Pl.’s Reply Br. at 59; LMI Br. at 4. It therefore appears undisputed that an event resulting in property damage occurred during these years to trigger the policies then in effect. Chemical Leaman, however, is also suing for coverage under defendants’ policies in effect between 1975 and 1985, after the company stopped using the unlined ponds and lagoons treatment system. In order to obtain coverage under these policies, Chemical Leaman argues that New Jersey applies a “continuous trigger” theory to determine the time when property damage occurred within the meaning of defendants’ insurance policies. According to Chemical Leaman, the continuous trigger theory provides that all of defendants’ policies are triggered from 1960 (when Chemical Leaman first began operating the Bridgeport rinsewater treatment system) through 1985 (when Chemical Leaman claims it became fully aware of both the nature and extent of the groundwater contamination and its legal obligation to pay damages resulting from that contamination). The continuous trigger theory would allow Chemical Leaman to recover the full amount under any policy falling within the trigger period. See Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034, 1041 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). Defendants contest the proposition that New Jersey courts would apply the continuous trigger doctrine to the present case. This court finds that New Jersey law permits the application of the continuous trigger theory, subject to certain predicate factual findings. Accord Hatco Corp. v. W.R. Grace & Co., 801 F.Supp. 1334, 1344-46 (D.N.J.1992). Indeed, the New Jersey Appellate Division has already adopted the continuous trigger approach. In Gottlieb v. Newark Ins. Co., 238 N.J.Super. 531, 570 A.2d 443 (App.Div.1990), the court addressed the question of when liability would be triggered for the migration of pesticide from the area in a house where it was originally applied. The trial court granted summary judgment, ruling that the policy unambiguously defined “occurrence” to include only those damages that occurred upon initial exposure and discovery of contamination in the house in 1982. Id. at 532-33, 570 A.2d 443. The Appellate Division reversed and held that the carrier’s 1983, 1984, and 1985 policies also provided coverage for the subsequent migration of the pesticide. Finding that the term “occurrence” was ambiguous when applied to the phenomenon of continuing damage, the court in Gottlieb adopted a continuous trigger analysis in order to interpret and define the term. Id. at 535-36, 570 A.2d 443. “[W]here an injury process is not a definite discrete event, the date of occurrence should be the continuous period from exposure to manifestation of damage.” Id. at 535, 570 A.2d 443. Under the continuous trigger theory, all insurance policies activated by an ongoing occurrence “are jointly and severally liable to policy limits for all damages resulting from that occurrence, including damage that occurred before and after the policy period.” Hatco Corp., 801 F.Supp. at 1346. The court in Hateo articulated the reasoning for adopting joint and several liability. “First, the language of the policies themselves do not limit coverage to injury that occurs during the policy period. Thus, as a matter of contract interpretation, overlapping coverage, in effect, had been bargained for.” Id. (citation omitted). Second, the court analyzed language similar to that found in Aetna’s and LMI’s policies and determined that “because the Insurers agreed to ‘pay all sums which the insured shall become legally obligated to pay as damages’, they in effect step into the shoes of the insured.” Id. In the present ease, Chemical Leaman’s “shoes” entail strict liability under CERCLA for the full cost of the cleanup of soil and groundwater damages caused by the Bridgeport facility, regardless of when it disposed of the hazardous substances. This court finds the analysis in Hateo persuasive and holds that all policies triggered by a continuous occurrence will be jointly and severally hable. See also Lac D'Amiante Du Quebec v. Am. Home Assurance, 613 F.Supp. 1549, 1561-63 (D.N.J.1985). New Jersey law requires the insured to make two factual showings before imposing joint and several liability under the continuous trigger theory. First, the insured must establish that some kind of property damage occurred during each policy period for which the insured seeks coverage. Gottlieb, 238 N.J.Super. at 536, 570 A.2d 443; Hatco Corp., 801 F.Supp. at 1354. Thus, in the present case, Chemical Leaman must prove that soil and groundwater damage took place during the period of each policy for which it seeks coverage. Second, the insured must establish that the property damage was part of a continuous and indivisible process of injury. Hartford Accident & Indem. Co. v. Aetna Life & Casualty Ins. Co., 98 N.J. 18, 29, 483 A.2d 402 (1984); Hatco Corp., 801 F.Supp. at 1345. Here Chemical Leaman needs to show that the injuries caused by its use of the Bridgeport rinsewater treatment system were of a continuous, indivisible nature. The court finds that, despite evidence submitted by Chemical Leaman, see PL’s Reply Br. at 56, 59, neither of these issues is undisputed on the basis of the present record. Plaintiffs motion for summary judgment on the continuous trigger theory must be denied. In sum, if Chemical Leaman estaba lishes these factual predicates it may recover from defendants the full amount of coverage permitted under each insurance policy in effect from 1960 until the manifestation of the soil and groundwater damage. The court underscores the two phrases in the previous sentence in order to emphasize additional issues that are potentially in dispute. First, defendants may defeat plaintiffs recovery under a policy activated by a continuous trigger if defendants establish that an applicable policy exclusion bars coverage. Hatco Corp., 801 F.Supp. at 1344. If .an exclusion applies, coverage is precluded notwithstanding the continuous trigger. A second issue concerns the timing of the manifestation of the soil and groundwater damage. Chemical Leaman maintains that it only became aware in 1985 of the full scope of the property damage caused by the soil and groundwater contamination and its ensuing liabilities for cleanup costs. Defendants argue for an earlier date. The undeveloped state of the record requires the court to find that this issue remains a disputed fact question. It is for the jury to decide the date of manifestation. IV. Pollution Exclusion Clause A. The Broadwell Line of Cases Defendants’ policies in effect after April 1, 1971 contain pollution exclusion clauses. The parties dispute whether the events causing the soil and groundwater damage fall within the “sudden and accidental” exception to the pollution exclusion provision. This heavily litigated issue turns in the first instance on the meaning of the word “sudden.” Defendants- argue that Chemical Leaman’s placing of pollutants in the ponds and lagoons was not sudden because, temporally, it took place over many years rather than all at once. Plaintiff rejects this proposed definition and asks the court to rely on a line of New Jersey appellate precedent which, beginning with the case of Broadwell Realty Serv., Inc. v. Fidelity & Casualty Co., has defined the word “sudden” without a temporal element, construing the “sudden and accidental” exception to apply to “an ‘unexpected,’ ‘unforeseen’ or ‘fortuitous’ event.” 218 N.J.Super. 516, 536-37, 528 A.2d 76 (1987); see also Summit Assoc., Inc. v. Liberty Mut. Fire Ins. Co., 229 N.J.Super. 56, 62, 550 A.2d 1235 (App.Div.1988). Thus, under Chemical Lea-man’s proposed reading, the “sudden and accidental” exception does not contain a temporal element, and it is therefore irrelevant that the discharge and spread of toxic material took place over the course of more than two decades. The court’s task is to interpret the meaning of the pollution exclusion clause under New Jersey law. Although there exists a line of Appellate Division cases, the state Supreme Court has not yet directly ruled on the issue. “Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” West v. A.T. & T., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). Thus, “[t]he decisions of lower appellate courts may be persuasive, should be accorded proper regard and are presumptive evidence of state law.” Commercial Union Ins. v. Bituminous Casualty Corp., 851 F.2d 98, 100 (3d Cir.1988). Defendants propose two alternative arguments as to why this court should rule that Broadwell and its progeny are wrongly decided. First, they contend that the term “sudden” is clear and unambiguous in its meaning, and includes a temporal element. Second, defendants maintain that, even assuming that the term “sudden” is ambiguous, extrinsic evidence proves that the drafters of the pollution exclus