Barmet of Indiana, Inc. v. Security Ins. Group

• Citation: 425 N.E.2d 201
• Decision Date: 31 August 1981
• Docket Number: No. 1-181A18,1-181A18
• Parties: BARMET OF INDIANA, INC., Appellant (Defendant Below), v. SECURITY INSURANCE GROUP, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 201

425 N.E.2d 201

BARMET OF INDIANA, INC., Appellant (Defendant Below), v. SECURITY INSURANCE GROUP, Appellee (Plaintiff Below).

No. 1-181A18.

Court of Appeals of Indiana, First District.

Aug. 31, 1981.

Patrick A. Shoulders, Kahn, Dees, Donovan & Kahn, Evansville, for appellant.

Danny E. Glass, Fine, Hatfield, Sparrenberger & Fine, Evansville, for appellee.

ROBERTSON, Judge.

Barmet of Indiana, Inc. (Barmet) appeals the declaratory judgment rendered in favor of its insurer, Security Insurance Group (Security). Security initiated the declaratory judgment proceedings to determine whether they were obligated under the terms of an insurance contract issued to Barmet to defend a wrongful death claim.

We affirm.

Barmet engages in the recycling of aluminum at its plant on Highway 66 in Spencer County, Indiana. Barmet mixes aluminum dross, a by-product of primary aluminum production, with rock salt and the mixture is heated to its melting point. As a result of this process, certain gases are created. Barmet employs a "bag house" pollution control system which filters the gases from the furnances before their release into the atmosphere. On numerous occasions these gases would escape from the plant. The escaping emissions travel for two or three miles and can obscure the visibility on the highway. Barmet has received numerous complaints regarding the emissions since beginning operations in 1974. The evidence at trial established that the pollution control system would frequently malfunction, resulting in the escape of emissions. There was no mechanism employed or procedure which could accurately predict when the emissions would escape, however, the pollution control system malfunctioned regularly. Testimony at trial disclosed that the frequency of the emissions ranged from occasional to once to twice a week. The emissions would appear as a fog but would not dissipate as rapidly.

On January 23, 1978, Debra Robinson Herron died in an automobile accident on Highway 66. Her personal representative sued Barmet and another driver for wrongful death. The complaint alleged that Barmet's emissions reduced the visibility on the highway two or three miles from Barmet's plant and was the proximate cause of Herron's death. Barmet forwarded a copy of the complaint to Security.

Security denied coverage and sought a declaratory judgment based upon the following policy exclusion:

This insurance does not apply:

(f) to 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 water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental;

The trial court found that Security was not obligated to defend the wrongful death claim because the escape of the gases was not sudden and accidental.

On appeal, Barmet raises...