Minerva Enterprises, Inc. v. Bituminous Cas. Corp.

• Decision Date: 22 February 1993
• Docket Number: No. 92-899,92-899
• Citation: 312 Ark. 128,851 S.W.2d 403
• Parties: MINERVA ENTERPRISES, INC., Appellant, v. BITUMINOUS CASUALTY CORP., Appellee.
• Court: Arkansas Supreme Court

Page 403

851 S.W.2d 403

312 Ark. 128

MINERVA ENTERPRISES, INC., Appellant, v. BITUMINOUS CASUALTY CORP., Appellee.

No. 92-899.

Supreme Court of Arkansas.

Feb. 22, 1993.

John I. Purtle, Little Rock, for appellant.

Frances F. Scroggins, Anderson & Kilpatrick, Little Rock, for appellee.

HAYS, Justice.

Minerva Enterprises, appellant, owns a mobile home park. Minerva's lease agreement with its tenants provides for a septic system on the property to be maintained by Minerva. One of the tenants was away for several days and returned to find her mobile home flooded with solid and liquid sewage. The tenant filed suit against Minerva claiming it had failed to exercise ordinary care in maintaining the septic system. The tenant was awarded a judgment against Minerva and on appeal to this court the judgment was affirmed and the judgment was satisfied by Minerva. Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992).

Minerva carried a commercial liability insurance policy with Bituminous Casualty Corporation, appellee, and requested that Bituminous defend under its policy of insurance. Bituminous refused to defend or to indemnify based on a pollution exclusion endorsement contained in the policy.

Minerva filed a declaratory judgment action against Bituminous for its failure to defend. The trial court granted summary judgment in favor of Bituminous and Minerva brings this appeal.

Minerva's general liability policy with Bituminous contained an exclusion for damage from pollutants. On that basis the trial court granted summary judgment for Bituminous, as stated in a letter opinion:

Furthermore, the policy excludes 'waste.' Raw sewage, liquid or solid is 'waste.' Reasonable people cannot debate these points. Therefore, there are no genuine issues of material fact.

On appeal, the disagreement between the parties concerning the insurance policy centers on the interpretation of the word "pollutants" as it is used in the policy exclusion. The exclusion is embodied in a special endorsement to replace the original pollution exclusion in the policy. The endorsement reads:

POLLUTION EXCLUSION

It is agreed that the exclusion relating to the actual, alleged or threatened discharge, dispersal, release or escape of pollutants is replaced by the following:

(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.

(2) Any loss, cost or expense arising out of any governmental direction or request that the named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.

Subparagraph (1) above does not apply to bodily injury or property damage caused by heat, smoke or fumes from a hostile fire. As used in this exclusion, a hostile fire means one which becomes uncontrollable, or breaks out from where it was intended to be.

Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Minerva makes two arguments. We find no merit in the first, which points to a definition of "waste" appearing in a separate endorsement which excludes coverage for nuclear material. This definition has no connection with the separate endorsement for pollutants, and the definition section of the nuclear material endorsement states specifically that the definitions apply to language "as used in this endorsement."

The second argument is that the definition of "pollutants" in the policy was intended to exclude industrial wastes, not common household wastes, and at best, the definition is ambiguous. We agree.

The pollution exclusion is a recent innovation of the insurance industry that has spawned considerable litigation. Among the cases we find a group that deals with the definition of pollution. This line of cases supports the premise that the exclusion is intended to prevent persistent polluters from getting insurance coverage for general polluting activities, whether the insured or a third party, and was never intended to cover those who are not active polluters but had merely caused isolated damage by something that could otherwise be classified as a "contaminant" or "waste."

The leading case in this group is Molton, Allen and Williams, Inc. v. St. Paul Fire and Marine Insurance Co., 347 So.2d 95 (Ala.1977), where a land developer of a subdivision was sued by adjacent landowners for negligently causing sand and dirt to pass from the subdivision onto their property. The developer filed a third party complaint against its public liability insurer and the insurer defended on the basis of a pollution exclusion clause similar to the one before us:

[This policy does not] apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water ... [but this endorsement doesn't apply if the occurrence is sudden or accidental.]

The developer argued the exclusion only contemplated the discharge of industrial refuse into the environment and a reading of the exclusion as a whole, makes clear these exclusions were not intended to cover the unintentional washing of sand from rainfall into the plaintiffs' lake. The developer also relied on the rule of ejusdem generis, that the specific examples following the general words, "irritants, contaminants or pollutants," were of the industrial pollutant type. The appellate court agreed:

As noted [by appellant] the pollution exclusion clauses here, strictly construed, were intended to cover only industrial pollution and contamination. We agree with that position. We do not believe that the insured real estate developer, by a reading of the exclusion clause would reasonably expect that the alleged damage caused by its construction activity would be included in the descriptions set out in the "pollution exclusion" clause. In other words, while a liberal construction of the "pollution exclusion" clause would not include the damage allegedly caused by [appellant], the clause is not free of ambiguity. It is believed that the intent of the "pollution exclusion" clause was to eliminate coverage for damages arising out of pollution or contamination by industry-related activities. The use of specific industry-related irritants, contaminants and pollutants seem to indicate this was the reason for the exclusion. We judicially know that during the last decade, much emphasis has been placed upon protecting the environment. The pollution exclusion was no doubt designed to decrease the risk where an insured was putting smoke, vapors, soot, fumes, acids, alkalis, toxic chemical, liquids or gases, waste materials or other irritants, contaminants or pollutants into the environment. In any event, the clause here is ambiguous. [Our emphasis.]

The reasoning and holding of the Alabama court in Molton, supra, have been followed by most courts which have considered the problem. A-1 Sandblasting & Steamcleaning v. Baiden, 53 Or.App. 890, 632 P.2d 1377 (1981). (When spray painting a bridge, passing cars were hit by some of the paint. The court found that paint under these circumstances was not intended to be within the exclusion); Pepper Industries, Inc. v. Home Insurance Co., 67 Cal.App.3d 1012, 134 Cal.Rptr. 904 (1977) (Plaintiff discharged gasoline into a city sewer system and a fire and explosion resulted causing damage to the system. Court held that fair reading of the exclusion did not include this type of damage).

In Grinnell Mutual Reinsurance Co. v. Wasmuth, 432 N.W.2d 495 (Minn.App.1988), the court held the pollution exclusion did not apply to damage to a home caused by formaldehyde emitted from deteriorating insulation. "The ordinary reader of the exclusion would reasonably conclude that it would not limit coverage for respondents' unexpected damage due to installation of building material in a home, but would exclude pervasive environmental pollution problems such as hazardous waste dumping." The court also surveyed appellate decisions of other jurisdictions where the exclusion provision was held to apply. Without exception, it found elements in those cases, which included, e.g., wide-spread pollution, deliberate disposition of potentially hazardous waste or produced substances, none of which were present in the case before it.

The list includes recent cases. In Thompson v. Temple, 580 So.2d 1133 (La.Ct.App.1991) tenants were overcome by carbon monoxide which leaked from a bathroom heater. The court held the pollution exclusion did not apply: "Pollution exclusion clauses are intended to exclude coverage for active industrial polluters, when businesses knowingly emitted pollutants over extended periods of time." (Cites omitted.) And in Westchester Fire Ins. Co. v. City of Pittsburgh, Kan., 768 F.Supp. 1463 (D.Kan.1991) the city's spraying of malathion to control insects which resulted in some personal injury actions, was held not to be within the pollution exclusion. The court found the exclusion was intended to limit liability for environmental damage. The court elaborated, giving examples of suits that would occur if the exclusion were given an expansive reading:

If a child at a city pool complains about the chlorine in his or her eyes, the causative factor is a chemical but...