Ga. Farm Bureau Mut. Ins. Co. v. Smith

• Citation: 784 S.E.2d 422,298 Ga. 716
• Decision Date: 21 March 2016
• Docket Number: No. S15G1177.,S15G1177.
• Parties: GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. SMITH et al.
• Court: Georgia Supreme Court

298 Ga. 716

784 S.E.2d 422

GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY

v.SMITH et al.

No. S15G1177.

Supreme Court of Georgia.

March 21, 2016.

James Bates Brannan Groover, Duke R. Groover, Lee M. Gillis, Jr., Brinson Askew Berry Seigler Richardson & Davis, Norman S. Fletcher, for appellant.

Childers, Schlueter & Smith, C. Andrew Childers, Jonathan W. Johnson, Turkheimer & Hadden, John D. Hadden, John L. Strauss, for appellees.

Hall Booth Smith, Mark W. Wortham, Leder Law Group, Steven E. Leder, Lewis Brisbois Bisgaard & Smith, Seth M. Friedman, David J. Hungeling, Reed Smith, Michael H. Simpson, Evan T. Knott, Emily E. Garrison, amici curiae.

THOMPSON, Chief Justice.

We granted a petition for certiorari to the Court of Appeals in Smith v. Georgia Farm Bureau Mut. Ins. Co.,

331 Ga.App. 780, 771 S.E.2d 452 (2015), to determine whether the Court of Appeals erred in holding, as a matter of first impression, that personal injury claims arising from lead poisoning due to lead-based paint ingestion were not excluded from coverage pursuant to an absolute pollution exclusion in a commercial general liability ("CGL") insurance policy covering residential rental property. Because we disagree with the Court of Appeals' conclusion that lead-based paint was not clearly a "pollutant" as defined by the policy, we reverse the Court of Appeals decision in this case.

Amy Smith ("Smith"), individually and as next friend of her daughter Tyasia Brown ("Brown") sued her landlord, Bobby Chupp ("Chupp"), for injuries Brown allegedly sustained as the result of ingesting lead from deteriorating lead-based paint at the house Smith rented from Chupp. The house was insured by Chupp under a CGL policy issued by Georgia Farm Bureau Mutual Insurance Company ("GFB"). After Chupp tendered Smith's claims to GFB under the provisions of the policy, GFB filed a declaratory judgment action against Smith and Chupp seeking a determination that Brown's injuries were not covered under the policy and that it had no duty to defend Chupp against Smith's claims.

GFB contended that the child's injuries were not covered because Smith, who admitted noticing that paint was chipping, flaking, and peeling in every room of the house, knowingly and unnecessarily exposed her daughter to the dangers of lead paint. Alternatively, GFB argued that even if the policy's coverage terms did apply, Brown's injuries from lead poisoning

were excepted from coverage by the policy's pollution exclusion clause, thus relieving GFB of its duty to defend and indemnify Chupp in Smith's suit.

The terms of Chupp's CGL policy require GFB "to pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies," and "to defend the insured against any ‘suit’ seeking those damages." The policy specifies, however, that GFB has no duty to defend Chupp against any claim for damages to which the insurance does not apply. The relevant provision of the "Coverages" section of Chupp's policy provides:

This insurance applies to "bodily injury" and "property damage" only if: (1) the "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory."

An "occurrence" is defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Correspondingly, the policy provides in its "Exclusions" section:

This insurance does not apply to:

...

(f) Pollution

(1) "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.

...

A "pollutant" is defined in the policy as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."

Finding that a genuine issue of material fact existed as to whether Smith knowingly exposed her daughter to the lead-based paint, the trial court nonetheless concluded that lead-based paint unambiguously fell within the policy's definition of a "pollutant," and, as a result, Brown's alleged injuries were excluded from coverage pursuant to the pollution exclusion clause.

In granting summary judgment to GFB, the trial court found this Court's decision in Reed v. Auto–Owners Ins. Co., 284 Ga. 286, 667 S.E.2d 90 (2008), which addressed the proper construction of an identical pollution exclusion clause in a CGL policy insuring residential rental property, was directly on point. In Reed, a residential tenant sued her landlord for carbon monoxide poisoning allegedly caused by the landlord's failure to keep the rental home's furnace in good repair. 284 Ga. at 286, 667 S.E.2d 90. Although not explicitly listed in the policy as a pollutant, this Court held that carbon monoxide gas fell within the policy's definition of a pollutant and concluded that all of the plaintiff's injuries stemming therefrom were thus excluded from coverage under the pollution exclusion. Id. at 288, 667 S.E.2d 90. Applying Reed's analytical framework to the facts of this case, the trial court concluded it was constrained to find that lead, like the carbon monoxide gas in Reed, was a contaminant which met the definition of pollutant contained in the policy.

Both defendants appealed and, in a combined opinion, the Court of Appeals reversed the trial court's grant of summary judgment to GFB. The Court of Appeals observed that the specific issue of whether lead-based paint should be considered a "pollutant" for the purposes of a pollution exclusion clause such as that found in Chupp's CGL policy was one of first impression in Georgia, and noted that a conflict in judicial opinions existed among other jurisdictions with respect to this question. See Smith, 331 Ga.App. at 784, 771 S.E.2d 452. Recognizing that Georgia law requires the narrow construction of exclusions from coverage in insurance policies, the Court of Appeals sided with those foreign courts holding that a pollution exclusion like the one in this case did not bar coverage for injuries arising out of the ingestion or inhalation of lead-based paint. Id. at 785, 771 S.E.2d 452. In particular, the Court of Appeals cited Sullins v. Allstate Ins. Co., 340 Md. 503, 667 A.2d 617, 620 (Ct.App.1995), for the proposition that a reasonable insured could have understood the pollution exclusion to exclude coverage for injuries caused by certain forms of industrial pollution, rather than the presence of leaded materials in a private residence. Agreeing with the Sullins court that, with respect to allegations of bodily injury arising from exposure to lead-based paint, the terms "contaminants" and "pollutants" used in a CGL policy's pollution exclusion were ambiguous and should be strictly construed against the insurer, the Court of Appeals concluded that GFB failed to meet its burden in this case to prove lead-based paint was a "pollutant" as defined by the policy. See Smith, 331 Ga.App. at 785, 771 S.E.2d 452. Significantly, in reaching this conclusion, the Court of Appeals determined that this Court's decision in Reed, supra, upon which the trial court had relied, was inapposite, finding that, while a straightforward reading of the pollution exclusion in Reed compelled the conclusion that carbon monoxide gas was a pollutant, it was unclear whether identical language in the instant policy was expansive enough to unambiguously include lead, lead-based paint or paint as a pollutant. See id. at 785–786, 771 S.E.2d 452. We granted GFB's petition for certiorari and posed this question: Were the claims for personal injury resulting from lead-based paint ingestion excluded from coverage pursuant to the insurance policy's "pollution exclusion"?

GFB argues that the Court of Appeals erred in distinguishing Reed and erred in holding that if GFB intended to exclude injuries caused by lead-based paint from coverage in the policy at issue, it was required, as drafter of the document, to specifically exclude lead-based paint injuries from coverage. As with any contract, in construing the terms of an insurance policy, we look first to the text of the policy itself. See Reed, 284 Ga. at 287, 667 S.E.2d 90. Words used in the policy are given their "usual and common" meaning, see OCGA § 13–2–2(2), and the policy "should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney." State Farm Mut. Auto. Ins. Co. v. Staton, 286 Ga. 23, 25, 685 S.E.2d 263 (2009) (citations and punctuation omitted). Where the contractual language is explicit and unambiguous, "the court's job is simply to apply the terms of the contract as written, regardless of whether doing so benefits the carrier or the insured." Reed, 284 Ga. at 287, 667 S.E.2d 90. See Thornton v. Georgia Farm Bureau Mut. Ins. Co., 287 Ga. 379, 382, 695 S.E.2d 642 (2010). This is so because Georgia law permits an insurance company to "fix the terms of its policies as it sees fit, so long as they are not contrary to the law," thus companies are free to "insure against certain risks while excluding others." Payne v. Twiggs County Sch. Dist., 269 Ga. 361, 363, 496 S.E.2d 690 (1998) ; Continental Cas. Co. v. HSI Fin. Svcs., 266 Ga. 260, 262, 466 S.E.2d 4 (1996). However, when a policy provision is susceptible to more than one meaning, even if each meaning is logical and reasonable, the provision is ambiguous and, pursuant to OCGA § 13–2–2(5), will be construed strictly against the insurer/drafter and in favor of the insured. See Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716, 470 S.E.2d 659 (1996).

In this case, Chupp's CGL policy contains an absolute pollution exclusion clause which precludes recovery for bodily injury or property damage resulting from exposure to any pollutant. See Reed, 284 Ga. at 288, 667...