188 F.3d 27 (1st Cir. 1999), 98-2158, Nautilus Ins. v. Jabar

Docket Nº:98-2158
Citation:188 F.3d 27
Party Name:NAUTILUS INSURANCE COMPANY, Plaintiff, Appellant, v. MICHAEL G. JABAR, d/b/a MIKE'S ROOFING CO., Defendant, Appellee. LISA A. VARANO AND STEPHEN M. VARANO, Appellees. STERN COMPANY, INC., Appellee.
Case Date:August 30, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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188 F.3d 27 (1st Cir. 1999)

NAUTILUS INSURANCE COMPANY, Plaintiff, Appellant,

v.

MICHAEL G. JABAR, d/b/a MIKE'S ROOFING CO., Defendant, Appellee.

LISA A. VARANO AND STEPHEN M. VARANO, Appellees.

STERN COMPANY, INC., Appellee.

No. 98-2158

United States Court of Appeals, First Circuit

August 30, 1999

Heard June 9, 1999

Rehearing and Suggestion for Rehearing En Banc Denied October 7, 1999

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Kevin J. Beal, with whom Preti, Flaherty, Beliveau & Pachios, L.L.C. was on brief, for appellant.

Laura A. Foggan, Daniel E. Troy and Wiley, Rein & Fielding on brief for Insurance Environmental Litigation Association, amicus curiae.

Joseph M. Jabar, George M. Jabar II, and Daviau, Jabar & Batten on brief for appellee Michael Jabar d/b/a Mike's Roofing Co.

Michael J. Donlan, with whom Gene R. Libby and Verrill & Dana, LLP were on brief, for appellees Lisa A. Varano and Stephen M. Varano.

Before Torruella, Chief Judge, Noonan[*] and Lynch, Circuit Judges.

TORRUELLA, Chief Judge.

Plaintiff-appellant Nautilus Insurance Company ("Nautilus") appeals from the district court's entry of summary judgment in favor of its insured, defendant-appellee Michael G. Jabar, d/b/a Mike's Roofing Company ("Jabar"). In the underlying action, Nautilus sought a declaratory judgment from the district court that it was not obligated to defend and/or indemnify Jabar in connection with a civil action filed against Jabar by Lisa and Stephen Varano ("the Varanos"). The district court granted summary judgment in favor of Jabar on the ground that the total pollution exclusion clause relied upon by Nautilus to deny coverage was ambiguous as a matter of law.

BACKGROUND

On or about June 3, 1997, the Varanos commenced a civil action against Jabar in the United States District Court for the District of Maine alleging that in February and March of 1995 Lisa Varano was exposed to hazardous fumes discharged by roofing products used by Jabar to repair

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the roof at Lisa Varano's place of employment. The complaint alleges that due to the inhalation of these fumes, Lisa Varano now suffers from occupational asthma. In their complaint, the Varanos sought damages to compensate them for Lisa's personal injuries and for Stephen's loss of consortium. The complaint does not allege, nor has Nautilus ever suggested, that Jabar in any way misused the roofing products that are alleged to have caused Lisa Varano's injuries.

At the time of Lisa's exposure to the fumes, Jabar was insured under a commercial lines insurance policy issued by Nautilus. Jabar notified Nautilus of the suit against him, and Nautilus undertook his defense, under a reservation of rights.

Eventually, Nautilus concluded that it was not obligated to defend or indemnify Jabar in connection with the Varanos' claims due to the existence of a total pollution exclusion clause in Jabar's policy. This clause excludes coverage for:

(1) 'Bodily injury' or 'property damage' which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration...

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