49 F.3d 786 (1st Cir. 1995), 94-1919, United States Liability Ins. Co. v. Bourbeau

Docket Nº:94-1919.
Citation:49 F.3d 786
Party Name:UNITED STATES LIABILITY INSURANCE COMPANY, Plaintiff-Appellee, v. Larry BOURBEAU, d/b/a Bourbeau Painting Contractors, Defendant-Appellant.
Case Date:March 03, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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49 F.3d 786 (1st Cir. 1995)



Larry BOURBEAU, d/b/a Bourbeau Painting Contractors,


No. 94-1919.

United States Court of Appeals, First Circuit

March 3, 1995

Heard Dec. 6, 1994.

Michael Pill, Shutesbury, MA, for appellant.

Pamela S. Gilman, with whom Taylor, Anderson & Travers, Boston, MA, was on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

TORRUELLA, Chief Judge.

Defendants-appellants, Larry Bourbeau and Bourbeau Painting Contractors ("Bourbeau"), appeal the district court's summary judgment ruling tat no coverage was provided under an insurance policy issued to Bourbeau by plaintiff-appellee, United States Liability Insurance Company ("U.S. Liability"), for injury to property caused by Bourbeau's alleged negligent removal of lead paint. For the reasons stated herein, we affirm.


The pertinent facts are not in dispute. In July of 1991, Larry Bourbeau, doing business as Bourbeau Painting Contractors, entered into a contract with the Town of Hadley, Massachusetts, to strip and paint two town buildings, including the North Village Hall.

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Pursuant to the contract, Bourbeau purchased comprehensive liability insurance from U.S. Liability for the period of July 2, 1991 to July 2, 1992. The policy terms covered property damage up to $300,000.

Bourbeau began work removing old paint from the North Village Hall. While this work was in progress, however, the Massachusetts Department of Environmental Protection ("DEP") notified Bourbeau that paint chips from the North Village Hall were contaminating the surrounding soil. The Town of Hadley incurred costs of approximately $50,000 cleaning up the contaminated site. Bourbeau subsequently finished his work on the two buildings but the Town of Hadley, citing its cleanup costs, refused to pay him.

In March of 1993, the owner of a parcel of land abutting the North Village Hall filed suit against Hadley alleging that Hadley had caused lead to be deposited on his land during the course of restoring and painting the North Village Hall. Hadley then filed a third-party complaint against Bourbeau seeking indemnification for any judgment which might be rendered against the town in favor of the abutter.

On August 20, 1993, U.S. Liability filed this diversity action in the United States District Court for Massachusetts seeking a declaration that it is not obligated to defend or indemnify Bourbeau for property damage sustained by Hadley, or any abutting land owners, due to the alleged negligent release of contaminated paint chips on the North Village Hall property. 1 Upon cross motions for summary judgment on the ultimate issue of coverage, the district court held that the "absolute pollution exclusion" clause contained in the insurance policy precludes coverage for property damage caused by alleged lead paint contamination. The court therefore granted U.S. Liability's motion for summary judgment and denied Bourbeau's motion for summary judgment.


We review a district court's grant of summary judgment de novo. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). Because the facts in this case are not in dispute, our decision turns on the interpretation of U.S. Liability's insurance policy, which is a question of law. See Nieves v. Intercontinental Life Ins. Co. of P.R., 964 F.2d 60, 63 (1st Cir.1992). The parties agree that this diversity action is governed by the substantive law of Massachusetts. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); American Title Ins. Co. v. East West Fin. Corp., 959 F.2d 345, 348 (1st Cir.1992).


The dispositive question in this case is whether the allegedly contaminating lead paint was a "pollutant" within the meaning of the "Absolute Pollution Exclusion" clause in the insurance policy. We agree with the district court that, under the undisputed facts of this case, the lead paint was a pollutant within the meaning of the...

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