Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 030353
| Decision Date | 06 February 2006 |
| Docket Number | 030353 |
| Citation | 2006 MBAR 161 |
| Parties | Andrew Robinson International, Inc. et al.[1] v. The Hartford Fire Insurance Company |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Borenstein, Issac, J.
This case arises out of a dispute involving an insurance contract. The plaintiffs seek declaratory judgment that the pollution exclusion in their insurance policy issued by the defendant does not bar coverage for their property damage caused by dust containing lead generated by a negligent third party. The defendant contends that lead is a pollutant and thus coverage is barred by the pollution exclusion. This matter is before the court on cross motions for summary judgment pursuant to Mass.R.Civ.P. 56, filed by all parties to the suit. For the reasons set forth below, the plaintiffs' Motion for Summary Judgment is ALLOWED, and the defendant's Motion for Summary Judgment is DENIED.
The summary judgment record contains the following undisputed facts. The incident at issue in this case happened on April 25, 2003, at 165 Friend Street, in Boston, Massachusetts ("Friend Street premises"). Andrew Robinson International, Inc., Andrew Robinson International Financial Services, Inc., Andrew Robinson International Insurance Brokerage, Inc., Andrew Robinson International Risk Management, Inc. (collectively, "plaintiffs" or "Andrew Robinson Companies") occupied Unit Three on the Friend Street premises on April 25, 2003. The Hartford Fire Insurance Company ("defendant" or "The Hartford") insured the plaintiffs at Unit Three on the Friend Street premises, effective June 16, 2002 to June 16 2003. A neighbor of the plaintiffs, Richard W. Gannett ("Mr. Gannett"), occupied Unit Two, located directly below Unit Three. On April 25, 2003, the defendant also insured Mr. Gannett d/b/a Gannett & Associates in Unit Two on the Friend Street premises.
For an annual premium of $1,601, the plaintiffs purchased a Hartford Spectrum Business Insurance Policy ("Spectrum Policy") from the defendant. The Spectrum Policy contained a Special Property Coverage Form ("Coverage Form") that provided, in pertinent part, as follows:
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations (also called described premises in this policy) caused by or resulting from any Covered Cause of Loss.
B. Exclusions
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
i Pollution: We will not pay for loss or damage caused by or resulting from the discharge, dispersal, seepage, migration, release, or escape of "pollutants" unless the discharge, dispersal, seepage, migration, release, or escape is itself caused by any of the "specified causes of loss." But if loss or damage by the "specified causes of loss" results, we will pay for the resulting loss or damage caused by the "specified cause of loss."
3. We will not pay for loss or damage caused by or resulting from any of the following. But if loss or damage by a Covered Cause of Loss results, we will pay for that resulting loss or damage.
c. Negligent Work: Faulty, inadequate, or defective:
(2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
(3) Materials used in repair, construction, renovation, or remodeling; or,
(4) Maintenance of part or all of any property on or off the described premises.
G. Property Definitions
5. "Pollutants" means any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.
7. "Specified Causes of Loss" means the following: Fire; lightning; explosion, windstorm, or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice, or sleet; water damage.
On April 25, 2003, Mr. Gannett was conducting renovations in Unit Two on the Friend Street premises. Contractors working for Mr. Gannett sandblasted the interior walls of Unit Two, causing the release of dust into the air. The contractors failed to take any safety precautions to prevent the dust from escaping Unit Two, and also failed to test for the presence of lead in the interior walls before commencing work. Consequently, the dust containing lead escaped Unit Two, and migrated to Unit Three. The dust containing lead settled throughout Units Two and Three.
On April 28, 2003, ASAP Environmental, Inc. collected dust wipe samples from Units Two and Three on the Friend Street premises for lead determination analysis. Test results showed the dust samples contained lead in excess of federal and state regulations.
On April 30, 2003, the Boston Public Health Commission (the "Commission") ordered Mr. Gannett "to discontinue any further work until all clean-up of dust and paint chips has been completed." The Commission also "suggested that, during the clean-up of the building, all tenants and workers should [ ] relocate to another location because they can't be around during the clean-up process."
Immediately after the incident, the plaintiffs sought recovery from Mr. Gannett and the defendant, filing a third-party liability claim and a subsequent lawsuit against Mr. Gannett d/b/a Gannett & Associates. The plaintiffs also filed a first-party property claim against its own Spectrum Policy.
On May 5, 2003, the defendant denied the plaintiffs' first-party property claim, on the basis that the lead in the dust was a "pollutant" as defined in the Spectrum Policy, and the Spectrum Policy does not cover loss caused by or resulting from pollution.
In July 2003, the Andrew Robinson Companies filed suit against The Hartford, seeking declaratory judgment that the pollution exclusion clause of its Spectrum Policy does not bar recovery for the damage caused to Unit Three by the dust containing lead.
1. STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 713-14 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). The party moving for summary judgment bears the burden of demonstrating that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). A moving party who does not bear the burden of proof at trial may demonstrate the absence of a triable issue by submitting affirmative evidence that negates an essential element of the nonmoving party's claim or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis, 410 Mass. at 716. If both parties move for summary judgment, and "in essence, there is no real dispute as to the salient facts or [ ] only a question of law is involved," the court shall grant summary judgment to the party entitled to judgment as a matter of law. Cassesso, 390 Mass. at 422.
II. GENERAL STANDARD FOR INTERPRETING INSURANCE POLICIES
In the instant case, the plaintiffs and the defendant agree that the issue before this court is whether the pollution exclusion clause in the Spectrum Policy precludes coverage for property damage and loss caused by dust containing lead.
The interpretation of insurance policies is a question of law. Cody v. Connecticut General Life Insurance Co., 387 Mass. 142, 146 (1982). When interpreting insurance polices, courts are guided by the following principles. If the terms of an exclusionary clause are unambiguous, the words of the policy are to be construed in their usual and ordinary sense. Barnstable County Mutual Fire Insurance Co. v. Lally, 374 Mass. 602, 605 (1978). An ambiguity exists in an insurance contract when the language contained therein is susceptible of more than one meaning. Jefferson Insurance Co. of New York v. Holyoke, 23 Mass.App.Ct. 472, 474 (1987). A clause is ambiguous if it is shown that reasonably intelligent people would differ as to which one of two or more meanings is the proper one. Id. at 474-75. However, an ambiguity does not exist simply because the opposing parties favor contradicting interpretations. Id. at 475. Courts should construe exclusionary provisions strictly against the insurer so as not to defeat any intended coverage. Vappi & Co., Inc. v. Aetna Casualty & Surety Co., 348 Mass. 427, 431-32 (1965). Any doubt created by the existence of an ambiguity should be resolved against the insurer. Camp Dresser & McKee, Inc. v. Home Insurance Co., 30 Mass.App.Ct. 318, 324 (1991).
Generally "[t]he insured bears the initial burden of proving that the loss is within the description of the risks covered." Highlands Insurance Co. v. Aerovox, Inc., 424 Mass. 226, 230 (1997), citing Tumblin v. American Insurance Co., 344 Mass. 318, 320 (1962). When coverage is barred on the basis of an exclusion described in a separate and distinct clause of the policy, the insurer bears the burden to prove the applicability of the exclusion to the...
To continue reading
Request your trial