Hartford Underwriter's Ins. Co. v. Estate of Turks
| Decision Date | 30 April 2002 |
| Docket Number | No. 4:01-CV-168 CAS.,4:01-CV-168 CAS. |
| Citation | 206 F.Supp.2d 968 |
| Parties | HARTFORD UNDERWRITER'S INSURANCE COMPANY, Plaintiff, v. ESTATE OF Bettie Lee TURKS, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Russell F. Watters, Brown and James, P.C., St. Louis, MO, for plaintiff.
John A. Lally, Aubuchon and Raniere, St. Louis, MO, for defendant.
This declaratory judgment matter is before the Court on the parties' cross-motions for summary judgment. This case concerns whether a homeowner's insurance policy issued by plaintiff provides coverage for the policy holder for a lawsuit arising out of an alleged lead poisoning. For the following reasons, the Court will grant plaintiff's motion for summary judgment and deny defendant's motion for summary judgment.
The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
With this principle in mind, the Court turns to an examination of the undisputed facts.
This dispute arises from the interpretation and application of the Homeowner's Policy Pollution Exclusion contained in a homeowner's policy issued to defendant Bettie Lee Turks by plaintiff Hartford Underwriter's Insurance Company, ("Hartford"). The policy provides, in part, as follows:
Section I—Perils Insured Against
*ZA
We insure for direct physical loss to the property described in Coverage C caused by a peril listed below unless the loss is excluded in SECTION 1—EXCLUSIONS.
1. Fire or lightning.
2. Windstorm or hail.
This peril does not include loss to the property contained in a building caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening. This peril includes loss to watercraft and their trailers, furnishings, equipment, and outboard engines or motors, only while inside a fully enclosed building.
3. Explosion.
4. Riot or civil commotion.
5. Aircraft, including self-propelled missiles and spacecraft.
6. Vehicles.
7. Smoke, meaning sudden and accidental damage from smoke.
This peril does not include loss caused by smoke from agricultural smudging or industrial operations.
8. Vandalism or malicious mischief.
9. Theft, including attempted theft and loss of property from a known place when it is likely that the property has been stolen.
This peril does not include loss caused by theft:
a. Committed by an insured;
b. In or to a dwelling under construction, or of materials and supplies for use in the construction until the dwelling is finished and occupied; or
c. From that part of a residence premises rented by an insured to other than an insured.
This peril does not include loss caused by theft that occurs off the residence premises of:
a. Property while at any other residence owned by, rented to, or occupied by an insured, except while and insured is temporarily living there. Property of a student who is an insured is covered while at a residence away from home if the student has been there at any time during the 45 days immediately before the loss;
b. Watercraft, and their furnishings, equipment and outboard engines or motors; or
c. Trailers and campers.
10. Falling Objects
This peril does not include loss to property contained in a building unless the roof or an outside wall of the building is first damaged by a falling object. Damage to the falling object itself is not included.
11. Weight of ice, snow or sleet which causes damage to property contained in a building.
12. Accidental discharge or overflow of water of steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance.
This peril does not include loss:
a. To the system or appliance from which the water of steam escaped;
b. Caused by or resulting from freezing except as provided in the peril of freezing below; or
c. On the residence premises caused by accidental discharge or overflow which occurs off the residence premises.
In this peril, a plumbing system does not include a sump, sump pump or related equipment.
13. Sudden and accidental tearing apart, cracking, burning or bulging of a steam or hot water heating system, an air conditioning or automatic fire protective sprinkler system, or an appliance for heating water.
We do not cover loss caused by or resulting from freezing under this peril.
14. Freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household appliance.
This peril does not include loss on the residence premises while the dwelling is unoccupied, unless you have used reasonable care to:
a. Maintain heat in the building; or
b. Shut off the water supply and drain the system and appliances of water.
15. Sudden and accidental damage from artificially generated electrical current.
This peril does not include loss of a tube, transistor or similar electronic component.
16. Volcanic eruption other than loss caused by earthquake, land shock waves or tremors.
* * * * * *
SECTION II—LIABILITY COVERAGES
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the insured is legally liable. Damages include prejudgment interest awarded against the insured; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.
* * * * * *
The policy issued to Turks contained the following relevant endorsements, among others, providing as follows:
HOMEOWNERS POLICY POLLUTION EXCLUSION
The following is added to Section II— Exclusions:
m. Arising out of the discharge, dispersal, seepage, migration, release, or escape of pollutants unless the discharge, dispersal, seepage, migration, release or escape was caused by a peril insured against under Coverage C of this policy. POLLUTANTS mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, lead paint, oils and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
Tony Stewart, by and through his next friend and guardian, Shanthia Swift, filed a petition for damages in the Circuit Court of the City of St. Louis, Missouri, naming Bettie Lee Turks as a defendant. Stewart alleges that he suffered damages as a result of lead paint poisoning due to Turk's failure and refusal to remove or abate paint containing dangerous levels of lead on premises controlled by defendant and occupied by Stewart. Stewart alleges that Turks was negligent in her conduct because she: (1) failed to inspect the premises for lead; (2) failed to warn the occupants about the presence or danger of lead paint; (3) failed to remove, adequately abate, or adequately maintain the unsafe lead paint in the premises occupied by Stewart in a timely and safe manner; (4) violated the provisions of Ordinance No. 56091, the Lead Poisoning Control Law for the City of St. Louis; and (5) failed to exercise ordinary care with the amount of vigilance and control required for the provision of safe housing. As a result, Stewart alleges that he was exposed to the unsafe lead contained within and about the premises, which proximately caused him physical and cognitive injuries, and that Turks' negligence was the proximate cause of his lead poisoning and resulting injuries. The petition does not state how the alleged exposure occurred.
Plaintiff Hartford Underwriter's Insurance Company ("Hartford") filed this action for Declaratory Judgment against defendant Bettie Lee Turks, seeking a declaration of its rights and duties under a policy of homeowners insurance. Specifically, plaintiff denies that it has an obligation to defend or indemnify defendant with respect to the lawsuit filed by Tony Stewart in the Circuit Court of the City of St. Louis, Missouri. On July 24, 2001, a Conservator was appointed for defendant and the Estate of Bettie Lee Turks was substituted as defendant in this action.
Plaintiff moves for summary judgment arguing that there is no coverage under the policy for the allegations of Tony Stewart for the following reasons. First, plaintiff argues that the pollution exclusion in the policy is not ambiguous. Plaintiff contends that the exclusion clearly provides to exclude coverage for the injury arising out of the "discharge, dispersal, seepage, migration, release or escape of a pollutant." Second, plaintiff asserts that lead paint is a pollutant under the policy. Plaintiff also asserts that the policy specifically defines the term pollutant to include lead paint. As such, plaintiff contends that the definition must be enforced as written. Third, plaintiff argues that the alleged injuries of Tony Stewart arise out of the discharge, dispersal, seepage, migration, release or escape of a pollutant, which is excluded under the policy. Plaintiff further argues that even though the policy does not define the terms discharge, dispersal, seepage, migration, release or escape, under Missouri law,...
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