35 F.3d 494 (10th Cir. 1994), 93-1235, Regional Bank of Colorado, N.A. v. St. Paul Fire and Marine Ins. Co.

Docket Nº:93-1235.
Citation:35 F.3d 494
Party Name:REGIONAL BANK OF COLORADO, N.A., Plaintiff-Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellant.
Case Date:August 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 494

35 F.3d 494 (10th Cir. 1994)

REGIONAL BANK OF COLORADO, N.A., Plaintiff-Appellee,

v.

ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellant.

No. 93-1235.

United States Court of Appeals, Tenth Circuit

August 25, 1994

Page 495

Scott J. Mikulecky of Dufford & Brown, Denver, CO (Russell L. George of Stuver & George, Rifle, CO, with him on the brief), for plaintiff-appellee.

John R. Mann (Frank R. Kennedy on the brief), of Cooper & Kelley, Denver, CO, for defendant-appellant.

Before KELLY and BARRETT, Circuit Judges, and O'CONNOR, Senior District Judge. [*]

EARL E. O'CONNOR, Senior District Judge.

Appellant St. Paul Fire and Marine Insurance Company ("St. Paul") appeals from a grant of summary judgment in favor of appellee Regional Bank of Rifle ("Regional Bank"). We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

Regional Bank, the insured, filed an action for a declaratory judgment with respect to coverage and duty to defend on a claim for carbon monoxide poisoning under the comprehensive general liability ("CGL") insurance policy issued by St. Paul's. The policy contained a "pollution exclusion" clause. The case was submitted on cross motions for summary judgment with the following stipulated facts:

  1. At all times relevant hereto plaintiff [Regional Bank] had in effect a policy of insurance issued by defendant [St. Paul's]....

  2. On January 27, 1988, Debra Seibert rented an apartment for occupancy by herself and her minor son from plaintiff. At that time, Debra Seibert was pregnant with her daughter, Brandy Loague. At the time, plaintiff owned this apartment.

  3. After sleeping in the above-referenced apartment on the night of January 29, 1988, Ms. Seibert and her son were taken to the Hospital suffering from inhalation of carbon monoxide allegedly emitted from a faulty wall heater in the apartment.

  4. As a result of their carbon monoxide inhalation, Ms. Seibert and her son filed Civil Action No. 89-CV-291 against the plaintiff herein in the Garfield County District Court (the "Garfield Action"). This case remains pending.

  5. The parties hereto agree that the sole issue to be decided in this case is whether [the subject policy] provides, up to its applicable limits, coverage to the plaintiff for the damages and injuries allegedly suffered by Ms. Seibert, her son and daughter in the Garfield Action. More specifically, the issue before the Court is whether [the subject policy's] Pollution Exclusion (Insuring Agreement 36, pp. 6 and 7 of 13) excludes coverage for the injuries and damages allegedly caused by Ms. Seibert, her unborn daughter and her son's carbon monoxide inhalation. This Exclusion reads, in pertinent part, as follows:

Exclusions--What This Agreement Won't Cover

Page 496

Pollution. We won't cover bodily injury, property damage or medical expenses that result from pollution at or from:

--your premises;

--a waste site; or

--your work site

* * * * * *

Pollution means the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.

Pollutants mean any solid, liquid, gaseous, or thermal irritant or contaminant, including:

--smoke, vapors, soot, fumes;

--acids, alkalis, chemicals; and

--waste

Your premises means any premises you own, rent, lease or occupy. It also includes premises you no longer own, rent, lease or occupy.

Aplt.App. at 7-8.

We review the district court's grant of summary judgment de novo, Anaconda Minerals Co. v. Stoller Chemical Co., 990 F.2d 1175, 1177 (10th Cir.1993), using the same legal standard employed below, Fed.R.Civ.P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). We must follow Colorado law and interpret the policy as a Colorado court would. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Broderick Inv. Co. v. Hartford...

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