23 F.3d 1324 (8th Cir. 1994), 93-2529, Sargent Const. Co., Inc. v. State Auto. Ins. Co.
|Citation:||23 F.3d 1324|
|Party Name:||SARGENT CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. STATE AUTO INSURANCE COMPANY, Defendant-Appellee.|
|Case Date:||May 04, 1994|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Submitted Jan. 13, 1994.
Maurice Graham, Fredericktown, MO, argued (Mike D. Murphy, on the brief), for appellant.
Richard Steele, Cape Girardeau, MO, argued, for appellee.
Before LOKEN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and KYLE, [*] District Judge.
KYLE, District Judge.
Sargent Construction Company ("Sargent") appeals the district court's decision granting summary judgment in favor of State Auto Insurance Company ("State Auto"). Sargent contends that the district court erred in determining that the definition of "pollutant" in the Commercial General Liability policy was unambiguous. We reverse and remand.
On January 3, 1992, Sargent was engaged in a construction project for its client, Town and Country Supermarkets ("T & C"), at a T & C location in Piggott, Arkansas. As part of the project, Sargent needed to level a steel-troweled concrete floor. For that purpose, Sargent used a product called Flo-Top. The instructions for Flo-Top provided that, before applying that product to steel-troweled concrete, one must etch or "rough up" the floor surface with acid to make a suitably textured surface.
Sargent used a twenty-percent solution of muriatic acid to etch the floor. 1 Fumes from the muriatic acid reacted with and corroded the chrome portions of various fixtures on or about the job site, including but not limited to shelving and freezer cases owned by T & C. The fumes caused approximately $75,000.00 in property damage. T & C informed Sargent that it intends to hold Sargent responsible for the damaged fixtures.
Sargent submitted a loss claim to State Auto, its insurer. State Auto denied coverage, concluding that muriatic acid is a "pollutant" and the event at the construction site therefore fell within the scope of the "pollution exclusion" clause in Sargent's Commercial General Liability policy. The policy State Auto issued to Sargent provides coverage for bodily injury and property damage liability. That coverage is subject to a number of exclusions, including the following "pollution exclusion":
2. Exclusions. This insurance does not apply to:
* * * * * *
f. (1) "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured;
(b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste;
(c) Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for any insured or any person or organization for whom you may be legally responsible; or
(d) At or from any premises, site...
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