Boulevard Inv. Co. v. Capitol Indemnity Corp.
| Decision Date | 26 September 2000 |
| Citation | 27 S.W.3d 856 |
| Parties | (Mo.App. E.D. 2000) Boulevard Investment Company, Appellant, v. Capitol Indemnity Corporation, Respondent. ED77363 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. Michael B. Calvin
Counsel for Appellant: Marvin Klamen
Counsel for Respondent: Russell F. Watters, T. Michael Ward and Bart B. Zuckerman
Opinion Summary: Boulevard Investment Company appeals the circuit court judgment Capitol Indemnity Corporation, granting Capitol's motion for summary judgment. The court held the pollution exclusion in the said insurance policy barred coverage for the loss at issue.
Division Three holds: The trial court did not err in granting summary judgment in favor of Capitol. It is clear the grease and other contaminants that resulted in the clogging of the sewer system were "waste," defined as a pollutant within the policy. Therefore, the "Total Pollution Exclusion Endorsement" (pollution exclusion) barred coverage of the property loss at issue.
Appellant, Boulevard Investment Company, ("Boulevard"), appeals the judgment of the Circuit Court of the City of St. Louis, entered in favor of the respondent, Capitol Indemnity Corporation, ("Capitol"), granting Capitol's motion for summary judgment insofar as the court held the pollution exclusion in the said insurance policy barred coverage for the loss at issue. We affirm.
Boulevard, the owner of property leased to B.T. Restaurants, ("B.T."), sued B.T. for property damage caused by blockage of the premises' plumbing system from various forms of waste, including kitchen grease, released into the system by B.T. On August 29, 1997, Boulevard obtained a judgment against B.T. in the Circuit Court of the City of St. Louis for the amount of $ 27,953.37. The court found the property damage was in whole or in part, the result of blockage in the plumbing system from various forms of waste, including kitchen grease, scour pads, heavy plastic, and underwear, allowed into the system by B.T. in their use of the premises as a restaurant. On February 19, 1998, Boulevard filed an equitable garnishment action against Capitol, B.T.'s insurer, to recover the amount awarded in the judgment against B.T.
Both parties filed motions for summary judgment. Boulevard argued the items found in the sewer were not pollutants as defined in the insurance policy. Capitol denied any liability to indemnify B.T. or pay Boulevard as B.T.'s judgment creditor, arguing the pollution exclusion excused it from any liability in this case. The pertinent provisions of the insurance policy are as follows:
2. Exclusions.
This insurance policy does not apply to:
* * *
f. Pollution
(1) "Bodily injury" or "property damage" which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.
* * *
Pollutants means any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.
On December 23, 1999, the trial court entered an order and judgment finding for Capitol on its motion for summary judgment and against Boulevard on its motion for summary judgment. The court held the disposal of grease and other kitchen waste into a sewer line constituted the release of a pollutant pursuant to the terms of the policy and the pollution exclusion therefore applied, excluding any liability by Capitol.
On its sole point on appeal, Boulevard argues the trial court erred in granting Capitol's motion for summary judgment; arguing the release of grease and other kitchen waste into a sewer line does not qualify as a pollutant as defined in the policy, and therefore, Capitol is...
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