FAYETTE CTY. HOUSING AUTHORITY v. HOUSING & REDEV. INS.

• Decision Date: 12 March 2001
• Citation: 771 A.2d 11
• Parties: FAYETTE COUNTY HOUSING AUTHORITY v. HOUSING AND REDEVELOPMENT INSURANCE EXCHANGE and Katherine Umbel an Adult Individual in her own right and as Parent and Natural Guardian of her Minor son, Corey Brown. Appeal of Housing and Redevelopment Insurance Exchange.
• Court: Pennsylvania Superior Court

771 A.2d 11

FAYETTE COUNTY HOUSING AUTHORITY v. HOUSING AND REDEVELOPMENT INSURANCE EXCHANGE and Katherine Umbel an Adult Individual in her own right and as Parent and Natural Guardian of her Minor son, Corey Brown.

Appeal of Housing and Redevelopment Insurance Exchange.

Superior Court of Pennsylvania.

Argued September 6, 2000.

Filed March 12, 2001.

J. Michael Adams, Pittsburgh, for appellant.

Melinda DellaRose, Uniontown, for Fayette County Housing Authority, appellee.

Mark T. Coulter, Pittsburgh, for Umbel, appellee.

Before McEWEN, President Judge, and CAVANAUGH, KELLY, POPOVICH, HUDOCK, FORD ELLIOTT, JOYCE, MUSMANNO, and LALLY-GREEN, JJ.

JOYCE, J.:

¶ 1 This appeal is from the order entered April 8, 1998, by the Court of Common Pleas of Fayette County, granting Fayette County Housing Authority's (FCHA) motion for summary judgment and denying Housing and Redevelopment Insurance Exchange's (HRIE) motion for summary judgment.¹ HRIE appeals the trial court's order.² For the following reasons, we reverse and remand for further proceedings consistent with this opinion. Before addressing the merits of Appellant's claim, we will briefly recount the pertinent facts of this case.

¶ 2 Katherine Umbel, on behalf of her minor son, filed a tort action against her landlord, FCHA. The suit sought recovery for injuries sustained after her son ingested lead-based paint from within her residence. At the time of injury, FCHA was insured by HRIE.

¶ 3 FCHA filed a declaratory judgment action seeking a determination as to whether HRIE had a duty to defend and indemnify FCHA in the lead-based paint action. Both parties filed motions for summary judgment. The trial court denied HRIE's motion and granted FCHA's motion. HRIE timely appealed.

¶ 4 While one panel of this Court was considering HRIE's appeal, another panel of our Court filed an opinion resolving the identical issues. Lititz Mut. Ins. Co. v. Steely, 746 A.2d 607 (Pa.Super.1999).³ In Lititz, our Court found that the pollution exclusion clause is unambiguous and that lead-based paint is a pollutant. Furthermore, we found that the poisoning of a tenant from lead-based paint was a result of the discharge, dispersal, release or escape of the lead-based paint. Lititz, supra. Following our decision in Lititz, the panel considering HRIE's appeal requested en banc certification of that case. This case now appears before this Court en banc.

¶ 5 As stated by our Supreme Court, when reviewing summary judgment cases:

[W]e must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. In order to withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Finally, we stress that summary judgment will be granted only in those cases which are clear and free from doubt. Our scope of review is plenary.

Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998) (citations and quotation marks omitted).

¶ 6 HRIE presents the following issues for our review: (1) whether lead-based paint is a pollutant within the meaning of the pollution exclusion clause; and (2) whether lead-based paint separating from a painted surface falls within the pollution exclusion clause meaning of discharge, dispersal, seepage, migration, release or escape of pollutants. Prior to Lititz, no appellate court of Pennsylvania had considered whether the pollution exclusion precludes coverage for injuries stemming from exposure to lead-based paint in a residential setting. Many other jurisdictions have addressed this and similar type issues resulting in differing resolutions which were supported by a wide divergence of reasoning. In resolving Lititz, we followed the sound reasoning set forth by the Pennsylvania Supreme Court in Madison Construction Co. v. Harleysville Mutual Ins. Co., 557 Pa. 595, 735 A.2d 100 (Pa.1999).

¶ 7 HRIE has asserted the pollution exclusion as an affirmative defense and thus bears the burden of proving such a defense. Lititz Mut. Ins. Co. v. Steely, 746 A.2d 607, 610 (Pa.Super.1999), citing, Madison Construction Co. v. Harleysville Mutual Ins. Co., 557 Pa. 595, 604-606, 735 A.2d 100, 106 (Pa.1999). To prevail, HRIE must prove that the language of the insurance contract is clear and unambiguous; otherwise, the provision will be construed in favor of the insured. Id.

¶ 8 The contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a given set of facts. Madison, 557 Pa. at 605, 735 A.2d at 106 (citation omitted). However, in interpreting the terms of the contract, we will not distort or strain the meaning of the language in order to find an ambiguity. Id. With these rules of interpretation in mind, we turn to the question of whether lead-based paint is clearly within the policy's definition of pollutant. ¶ 9 The exclusion upon which Appellant relies provides that coverage does not apply to injury resulting from:

[T]he actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants ... Pollutants means any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor soot, fumes, acid, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Policy at endorsement CG 21491093. The policy does not define a number of the words within the definition of pollutant. Words of common usage in an insurance policy are to be read in their natural, plain, and ordinary sense, and we may consider their dictionary definition in determining our understanding of these terms. Madison, 557 Pa. at 608, 735 A.2d at 108 (citation omitted).

¶ 10 Webster's Collegiate Dictionary, Tenth Edition (1993) defines "contaminant" as, in pertinent part, "something that contaminates" and "contaminate" as "to make impure by admixture." Id. at 249. The same source defines "irritant" as "causing irritation," especially "tending to produce physical irritation." Id. at 620. "Irritation" is "a condition of irritability, soreness, roughness, or inflammation of a bodily part." Id.

¶ 11 One of the examples of contaminants or irritants in the policy's definition of pollutant is "chemical," which is defined as "a substance obtained by or used in a chemical process." Id. at 196. "Chemistry" is "a science that deals with the composition, structure, and properties of substances and with the transformations they undergo." Id.

¶ 12 "Lead" is "a heavy soft malleable ductile plastic but inelastic bluish white metallic element found mostly in combination and used especially in pipes, cable sheaths, batteries, solder, and shields against radioactivity." Id. at 661. Thus, lead is a chemical element with specific properties, it may be used in a chemical process and clearly fits within the definition of a chemical. Lead-based paint, of which lead is a component, applied to the walls of a residential dwelling, over time exfoliates, abrades, flakes, chips, deteriorates or otherwise moves off of the wall as chips or fine dust of solid waste. Lititz, 746 A.2d at 611.

¶ 13 The most common cause of lead-based paint poisoning in children is from the ingestion of household dust containing lead from deteriorating or abraded lead-based paint. Lititz, 746 A.2d at 611, citing, St. Leger v. American Fire and Casualty Insurance Company, 870 F.Supp. 641 (E.D.Pa.1994); 42 U.S.C. § 4851(4). Furthermore, the Residential Lead Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4851 b(15), labels the exposure to lead from lead contaminated paint or dust, which results in adverse human health effects, a hazard. Id. The harmful effects that exposure to lead in lead-based paint creates are well studied and well known. Id. Because of these deleterious effects, the use of lead in residential paint was banned in 1978. Therefore, this Court has found that the definition of pollutant clearly and unambiguously applies to lead-based paint in a residential setting. Id.

¶ 14 Umbel, citing Pipefitters Welfare Educational Fund v. Westchester Fire Insurance Co., 976 F.2d 1037 (7th Cir.1992), contends that under the exclusion, every substance in existence qualifies as a pollutant, thus making the clause ambiguous. Umbel's Brief at 14. Our Supreme Court has found that:

The pertinent inquiry is not, ..., whether the policy's definition of "pollutant" is so broad that virtually any substance, including many useful and necessary products, could come within its ambit. Rather, guided by the principle that ambiguity (or the lack thereof) is to be determined by reference to a particular set of facts, we focus on the specific product at issue.

Lititz Mut. Ins. Co. v. Steely, 746 A.2d 607, 610 (Pa.Super.1999), citing, Madison Construction Co. v. Harleysville Mutual Ins. Co., 557 Pa. 595, 606-607, 735 A.2d 100, 107 (Pa.1999). (citation omitted).

¶ 15 Both FCHA and Umbel make the argument that a majority of jurisdictions find the pollution exclusion inapplicable to residential lead-based paint cases.⁴ They claim that because this appears to be what a majority of jurisdictions have found, that such a determination must be correct or that the clause must be ambiguous. As stated in Lititz, we believe our Supreme Court has provided the proper guidance for resolving this issue in Madison. Lititz, 746 A.2d at 610. Furthermore, this Court rejected such an argument finding that this would amount to "abdicating our judicial role were we to decide such cases by the purely mechanical process of searching the nations courts to ascertain if there are conflicting decisions." Lititz, 746 A.2d...