197 F.3d 1178 (6th Cir. 1999), 98-1801, Meridian Mutual Insurance v Kellman

Docket Nº:98-1801
Citation:197 F.3d 1178
Party Name:Meridian Mutual Insurance Company, Plaintiff-Appellant, v. Roslyn E. Kellman, Defendant-Appellee, Page 1179 Skender Bajrami, individually and doing business as Kopliku Painting Company, Defendant.
Case Date:December 02, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1178

197 F.3d 1178 (6th Cir. 1999)

Meridian Mutual Insurance Company, Plaintiff-Appellant,

v.

Roslyn E. Kellman, Defendant-Appellee,

Page 1179

Skender Bajrami, individually and doing business as Kopliku Painting Company, Defendant.

No. 98-1801

United States Court of Appeals, Sixth Circuit

December 2, 1999

Argued: November 5, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 97-72462--George E. Woods, District Judge.

Rosalind Rochkind, Daniel S. Saylor, GARAN, LUCOW, MILLER, SEWARD, COOPER & BECKER, Detroit, Michigan, for Appellant.

Michael J. Haddad, Goodman, Eden, Millender & Bedrosian, Richard A. Soble

Page 1180

(briefed), Matthew E. Krichbaum, SOBLE & ROWE, Ann Arbor, Michigan, for Appellee.

Before: MARTIN, Chief Judge; DAUGHTREY, Circuit Judge; KATZ, District Judge[*].

OPINION

KATZ, District Judge.

Plaintiff-Appellant Meridian Mutual Insurance Company ("Meridian") appeals the trial court's grant of summary judgment in favor of Defendant Skender Bajrami, d/b/a Kopliku Painting Company ("Kopliku"), based on a determination that an insurance policy it issued to Kopliku, obliges it to defend and indemnify Kopliku in a personal injury action arising out of exposure to certain chemicals used by Kopliku in the course of its business. For the following reasons, we AFFIRM.

Background

At all times relevant to this suit, Kopliku was covered by a commercial general liability ("CGL") insurance policy issued by Meridian. The policy obliged Meridian to defend and indemnify Kopliku for bodily injuries caused by Kopliku in the course of its business, but contained a total pollution exclusion providing that:

This insurance does not apply to . . . "[b]odily 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, release or escape of pollutants at any time.

* * *

Pollutants means any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.

In November of 1994, Kopliku contracted with the Detroit, Michigan Board of Education to perform construction work, including painting and drywall sealing, at Cass Technical High School ("the High School"). Defendant-Appellee Roslyn Kellman ("Kellman") was a teacher at the High School. Kellman alleges that fumes from chemicals that Kopliku was using to seal a floor in the room immediately above Kellman's classroom caused her severe and disabling respiratory injuries. She brought a personal injury suit against Kopliku in Michigan state court in February of 1997.

Kopliku tendered the defense of Kellman's state court action to Meridian, which denied coverage on the basis of the total pollution exclusion, and defended Kopliku under a reservation of rights. Meridian then instituted this declaratory judgment action in federal district court, seeking a declaration that it had no duty to defend or indemnify Kopliku in Kellman's state court action.

The trial court ruled in Kopliku's favor on cross motions for summary judgment. Both sides agree that the sealer that caused Kellman's alleged injuries was a pollutant. The sole issue before the trial court, and on this appeal, was whether the movement of the vapors had been a "discharge, dispersal, seepage, migration, release or escape" of pollutants so as to bring the injuries within the insurance policy's total pollution exclusion. The trial court found that:

the pollution exclusion clause is intended to protect the insurer from liability for the enforcement of environmental laws. The exclusion contains environmental terms of art because it is intended to exclude coverage only as it relates to environmental pollution. When a toxic substance is confined to an area of intended

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use it does not come within the exclusion clause.

The primer/sealer was used in its intended manner inside Cass. The fact that the fumes from the primer allegedly injured Kellman one floor below does not turn the fumes into environmental pollution within the meaning of the total pollution exclusion clause. Therefore, Meridian has a contractual obligation to defend the insured, [Kopliku], in the underlying lawsuit.

Meridian appeals from that judgment. It argues that the movement of the fumes constituted "discharge, dispersal, seepage, migration, release or escape" as defined in the policy. On an appeal from summary judgment, we review the district court's judgment de novo. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997).

Discussion

The sole issue on appeal is whether the movement of fumes from a toxic chemical used to seal a floor in the course of an insured's business constitutes "discharge, dispersal, seepage, migration, release or escape" within the terms of an insurance policy's total pollution exclusion, when those fumes injure an employee of the institution for which the sealant is being applied, while that employee is working in a room on the floor immediately below the area where the sealer is being applied.

The insurance policy at issue must be...

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