Love Lang v. FCCI Insurance Company
| Decision Date | 30 March 2021 |
| Docket Number | CIVIL ACTION NO. 1:19-cv-3902-AT |
| Citation | 530 F.Supp.3d 1299 |
| Parties | Michelle Lynn LOVE LANG, as Administrator of the Estate of Joel Edgar Love, Jr., (1) in her capacity as Administrator of said Estate, (2) as Assignee of Ketom Construction Company, Inc. d/b/a Southern Preservation Systems, (3) in her capacity as Administrator of the Whiting-Turner Contracting Company, (4) in her capacity as Administrator, as Assignee of The Seven Fifty Limited Partnership, and (5) in her capacity, as Administrator, as Assignee of The Cincinnati Specialty Underwriters Insurance Company, Plaintiff, v. FCCI INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Eric John Marlett, Matthew Francis McGahren, McGahren Law Firm, LLC, Peachtree Corners, GA, for Plaintiff.
David Christopher Sawyer, Michael J. Rust, Gray Rust St. Amand Moffett & Brieske, LLP, Atlanta, GA, for Defendant.
This disputed insurance coverage case involves injuries arising out of the accumulation of construction dust. In 2013, Mr. Joel Edgar Love Jr. ("Mr. Love"), an individual with end-stage emphysema
, suffered breathing problems and was hospitalized after construction work outside his apartment produced clouds of dust that accumulated in his unit. As alleged, the construction work continued even after Mr. Love complained to the workers about the dust and its effect on his health. Mr. Love then sued the building owner, the contractor, and later the construction company, in state court. The construction company was insured by Defendant FCCI Insurance Company ("FCCI") but FCCI denied coverage based on the Policy's "Total Pollution Exclusion." Mr. Love passed away before the state court suit concluded; however, Plaintiff Michelle Lynn Love Lang, the Administrator of his Estate, continued the suit which ultimately settled, resulting in a Consent Judgment. As a part of the settlement, Love Lang was assigned the rights to bring this suit on behalf of the construction company, the general contractor, the building owner, and another insurer that had provided subsequent insurance to the construction company.
In the present action, Plaintiff Love Lang, as Administrator of Mr. Love's estate and Assignee of the above-listed companies, sues FCCI for the proceeds of the insurance policy and for breach of contract for failure to defend and indemnify. Now before the Court, FCCI moves for partial summary judgment on Claims I, II, and III, arguing that the Policy's Total Pollution Exclusion bars coverage for the damages alleged by Love Lang in these counts. For the regrettable reasons below, the Court GRANTS Defendant's Motion for Partial Summary Judgment [Doc. 19].
Mr. Joel Edgar Love Jr.
This somber saga begins in 2013 with a construction renovation project at the Briarcliff Summit Apartments where Mr. Love resided at the time. Mr. Love, who had serious health problems including end-stage emphysema
and only 20% lung function, moved into a newly renovated apartment at the Briarcliff Summit Apartments in or about August 2013. (Plaintiff and Defendant's Stipulated Facts ("Stipulated Facts"),2 Doc. 18 ¶ 7; Plaintiff's Additional Statement of Material Facts ("Pl. SOMF"), Doc. 26-3 ¶ 5.) In August 2013, a construction crew working at the Apartments began removing a row of bricks outside the window of Mr. Love's apartment unit by drilling a row of holes in the grout between the bricks, and then cutting the holes together to remove the brick. (Stipulated Facts ¶ 8.) The work being done outside Mr. Love's apartment resulted in clouds of dust entering his apartment, causing him serious breathing problems. (Id. ¶ 9.)
Mr. Love and his longtime domestic partner complained to the construction crew and explained that the dust was causing Mr. Love respiratory difficulties, but the workers told him that there was nothing they could do to stem the tide of the dust. (Pl. SOMF ¶ 10.) As the clouds of dust continued to be pumped into his apartment, Mr. Love's breathing problems worsened; on August 5, 2013, he had a "crash" and did not remember waking up that morning or the behavior he exhibited, and had to be resuscitated. (Stipulated Facts ¶ 10; PL. SOMF ¶ 12.) As a result, late on the night of August 5, 2013 into the early hours of August 6, 2013, Mr. Love was taken to the Emergency Room where he spent time in the Intensive Care Unit ("ICU") on a breathing tube
, then remained in the hospital for several weeks and suffered additional respiratory problems when he returned home to the Briarcliff Apartments. (Stipulated Facts ¶ 11; Pl. SOMF ¶ 12.) Before returning to his apartment, Mr. Love enlisted a friend to caulk the baseboards of his apartment and run air filters to ameliorate the effects of the dust while the workers continued to work into September 2013. (Pl. SOMF ¶ 14.) Yet, after returning from the hospital, Plaintiff alleges that Mr. Love had greater difficulty breathing, his lung function dropped to 17%, and his quality of life and mental state worsened in his final years as a result of this experience. (Pl. SOMF ¶ 15.) Just less than two years later, Mr. Love later passed away, on June 7, 2015. (Id. ¶ 16.)
The Companies Involved in the Construction:
The construction work at Briarcliff Summit Apartments in August 2013 involved a number of companies. The Briarcliff Apartments, previously known as "The 750 Building," was owned by The Seven Fifty Limited Partnership ("Seven Fifty"). (Id. ¶ 6.) In August 2012, Seven Fifty contracted with a general contractor, The Whiting-Turner Contracting Company ("Whiting-Turner"), to perform renovations on the building to turn it into a modern and affordable apartment complex for the elderly and disabled persons who lived there. (Complaint, Doc. 1-1 ¶¶ 6-7; Pl. SOMF ¶ 2.) Whiting-Turner then hired a subcontractor, Ketom Construction Company d/b/a Southern Preservation Systems ("Ketom") to perform certain renovation work including façade restoration. (Id. ¶ 7.) Façade restoration was one of the primary lines of work of Ketom. (Id. ) The construction crew performing the work outside Mr. Love's window worked for Ketom. (Stipulated Facts ¶ 8.)
Defendant FCCI is a commercial insurer that issued an insurance policy ("the Policy") to Ketom. This Policy became effective July 1, 2013 and was intended to go through July 1, 2014, but was cancelled early on August 15, 2013. (Id. ¶¶ 1-3.) Ketom obtained a new insurance policy with The Cincinnati Specialty Underwriters Insurance Company ("Cincinnati"), effective upon the cancellation of the FCCI Policy on August 15, 2013. (Id. ¶ 4.) The FCCI Policy at issue here first includes a duty to indemnify and defend Ketom, the insured, as follows:
[FCCI] will 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. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result.
(FCCI Policy with Ketom, Doc. 18-1 at 95.) The Policy also includes certain exclusions for incidents that are not covered, including a "Total Pollution Exclusion." This Total Pollution Exclusion provides:
This insurance does not apply to: (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 . (2) Any loss, cost or expense arising out of any: (a) Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to the effects of "pollutants."
(Id. at 112) (emphasis added.) The Policy defines a "pollutant" as (Id. at 109) (emphasis added.)
The Previous State Court Actions:
In October 2014, before he passed away, Mr. Love initiated a lawsuit in the State Court of Fulton County against Seven Fifty (the owner of the Apartment building), Whiting-Turner (the contractor), and others defendants, see Civil Action File No. 14EV002322J. (Doc. 18-2.) In this First Injury Litigation, Mr. Love alleged that the clouds of dust released by the construction and into his apartment caused him serious breathing problems, resulting in his ICU stay and worsened quality of life in his final years. (Stipulated Facts, ¶¶ 9-11.) Mr. Love's theory was one of negligence. He alleged that defendants knew or should have known that the dust was being pumped into his apartment and that they knew or should have known the dust was particularly dangerous to Mr. Love given his medical conditions. (Id. ¶ 12a.) Further, he asserted that the defendants were negligent in continuing the renovation work without attempting to mitigate the effects of the dust, even after he complained about the dust and breathing difficulties it was causing him. (Id. ¶ 12b-12c.)
In the course of this First Injury Litigation, Whiting-Turner (the contractor) tendered its litigation defense to FCCI; FCCI initially responded that it would investigate whether FCCI's Policy provided coverage. (Id. ¶¶ 13-14.) Then, Whiting-Turner filed a third-party complaint against Ketom, the subcontracting construction company. (Id. ¶ 17.) Months later, in November 2015, FCCI denied defense coverage to both Whiting-Turner and Ketom, citing the Policy's Total Pollution Exclusion. (Id. ¶ 18.) As noted, Mr. Love passed away in June 2015. After he died, Plainti...
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