Kitsap County v. Allstate Ins. Co.
| Decision Date | 01 October 1998 |
| Docket Number | No. 65601-1,65601-1 |
| Citation | 136 Wn.2d 567,964 P.2d 1173 |
| Court | Washington Supreme Court |
| Parties | . ALLSTATE INSURANCE COMPANY, a foreign insurance company; Colonial Penn Insurance Company, a foreign insurance company; Columbia Casualty Company, a foreign insurance company; Covenant Mutual Insurance Company, a foreign insurance company; Fidelity and Guaranty Insurance Underwriters, Inc., a foreign insurance company; First State Insurance Company, a foreign insurance company; Harbor Insurance Company, a foreign insurance company; Home Indemnity Company, a foreign insurance company; Interstate Fire and Casualty Company, a foreign insurance company; Underwriters At Lloyds, a foreign insurance company; National Union Fire Insurance Company of Pittsburgh, Pennsylvania, a foreign insurance company; Protective National Insurance Company of Omaha, a foreign insurance company; Stonewall Insurance Company, a foreign insurance company; Transamerica Insurance Company, a foreign insurance company; Transcontinental Insurance Company, a foreign insurance company; United Pacific Insurance Company, a domestic insurance company; Century Indemnity Company, a foreign insurance company; and Fidelity and Guaranty Insurance Underwriters, Inc., Defendants. Supreme Court of Washington, En Banc |
Mary DeYoung, Thorsrud, Cane & Paulich, Patrick Paulich, Lawrence Gottlieb, Karr, Tuttle & Campbell, Jacquelyn Beatty, Steven Robinson, Seattle, Diane L. Polscer, Portland, OR, Timothy Tompkins, James Mitchell, Seattle, Rivkin, Radler, Hart & Kremer, Anthony Gambardella, Daniel Bartoldus, Jay Kenigsberg, Michael Buckley, Uniondale, NY, Laurie Kohli, Peery, Hiscock, & Pierson, James Horne, Michael Bond, Thomas James, Seattle, Robinson & Cole, Stephen Abarbanel, Boston, MA, Kent Fandel, Stephen Goodman, Jr., Arthur Lachman, Murray, Dunham & Murray, Michael Taylor, Seattle, Walter Andrews, Laura Foggan, John Yang, Washington, DC, David Walker, Chicago, IL, Carl Forsberg, Cozen & O'Connor, Thomas Jones, Curt Feig, Merrick, Hofsted & Lindsey, Tyna Ek, Sheryl Cottrell, Seattle, Thomas Going, Michael Gallagher, Philadelphia, PA, Christine Dinsdale, Leo Clarke, Seven Edmiston, Seattle, for defendants.
Robert J. Stephenson, Donald B. Scaramastra, Garvey Schubert & Barer, Ronald A. Franz, Law Offices of Ronald A. Franz, Seattle, for Plaintiffs.
The United States District Court for the Western District of Washington has certified the following question to us: "Whether the claims against Kitsap County constitute 'personal injury' under each of the subject liability insurance policies." Doc. 603 at App. A. For reasons that we set forth hereafter, we answer yes to the question insofar as it relates to policies that provide coverage for a personal injury arising from a "wrongful entry" and/or "other invasion of the right of private occupancy" and answer no as it relates to policies that provide coverage only for a personal injury arising from a "wrongful eviction."
In order to put the certified question in context, it is necessary to set forth some of the facts that have led to the litigation in federal court. These facts we have gleaned from the record furnished to us by the federal court and from the briefs of the parties.
In 1993, three lawsuits were brought against Kitsap County and other defendants. Two of the suits were maintained by past or current residents of the Norseland Mobile Home Park. The former and current park residents alleged in their suit that their health and property had been impaired by contaminants and foul odors emanating from a waste disposal site formerly owned by Kitsap County, on which a portion of the Norseland Mobile Home Park was located, and from a nearby privately-owned landfill in which the County had disposed of municipal hazardous waste. The other suit was brought by Sunshine Properties, Inc., the owner of the Norseland Mobile Home Park, and other plaintiffs who possessed an interest in some commercial buildings that were located near the waste disposal sites. These plaintiffs sought damages for environmental problems which they alleged were caused by Kitsap County and other defendants. The plaintiffs in all three suits set forth causes of action against the County for trespass and nuisance among other theories of recovery. The past and current mobile home park residents included an additional cause of action for interference with their use and enjoyment of their property. The three lawsuits were ultimately consolidated before the United States District Court for the Western District of Washington. 1
Kitsap County tendered defense of the lawsuits to 19 insurance companies that had, over a 30-year period, issued a total of 23 liability policies to the County. Because the insurance companies agreed to defend the suits only under a reservation of rights, Kitsap County elected to defend itself. It eventually entered into a comprehensive settlement agreement with all of the plaintiffs and then sought indemnification from the insurers for the sums it paid to the plaintiffs in order to obtain the settlement.
The insurance companies declined to indemnify Kitsap County and, consequently, the County commenced its own suit against all 19 companies in the United States District Court for the Western District of Washington. Kitsap County contended that the insurers were obligated to provide indemnification by virtue of their agreement to provide coverage for sums the County had to pay as damages for personal injury. The County then moved for summary judgment seeking a declaration from the district court that the claims the plaintiffs had maintained against it for nuisance, trespass, and interference with use and enjoyment of the property were claims for personal injury within the meaning of the policies issued to it by the various insurers. In response, the United States District Court certified to us the question that we have set forth above.
All of the policies in question provide coverage for sums the insured, Kitsap County, became obligated to pay because of "personal injury." Some of the policies provide for "personal injury" liability in an endorsement, while others include it in the general coverage of the policy. In 17 of the policies, "personal injury" is defined to include "bodily injury." All of the policies include in the definition of "personal injury" injuries arising out of certain specified offenses. In 11 policies, coverage is provided for personal injury arising from the offenses of "wrongful entry or eviction or other invasion of the right of private occupancy." A provision typical of those policies is as follows:
The Company will pay on behalf of the Insured ... all sums which the Insured shall become legally obliged to pay as damages because of:
A--Personal injury ...
... caused by an occurrence during the policy period....
....
... 'Personal Injury' means bodily injury or if arising out of bodily injury, mental anguish. It also includes injury arising out of one or more of the following offenses committed in the conduct of the Named Insured's business.
Group A--false arrest, detention or imprisonment, or malicious prosecution;
Group B--the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual's right of privacy; except publications or utterances in the course of or related to advertising, broadcasting, publishing or telecasting activities conducted by or on behalf of the Named Insured Group C--wrongful entry or eviction, or other invasion of the right of private occupancy. 2
(emphasis added). In six of the policies coverage is provided only for a "personal injury" arising out of a "wrongful entry" or "wrongful eviction." 3 In six other policies, coverage is limited to a personal injury arising from the offense of "wrongful eviction." 4 One insurance policy provides that a personal injury arising out of "violation of property rights" is within the coverage of the policy in addition to coverage for personal injury arising from "wrongful entry or eviction, or other invasion of the right of private occupancy." 5
All of the general liability insurance policies that are at issue here also afford coverage to Kitsap County for such sums as it "shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence." 6 In general, the policies defined an "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." Br. of Certain Insurers at 7.
According to the briefs of the parties, some of the policies include a pollution exclusion applicable to the property damage and bodily injury provisions. 7 According to the insurers, the following language is typical of such pollution exclusion language:
this insurance does not cover:
bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. 8
The record also reveals that in some policies, the pollution exclusion applied with respect to personal injury coverage.
In Washington, "[c]onstruction of an insurance policy is a question of law for the courts, the policy is construed as a whole, and the policy ' "should be given a fair,...
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