Perkins Hardwood Lumber Co. v. Bituminous Cas. Corp.

• Decision Date: 08 February 1989
• Docket Number: No. 77783,77783
• Citation: 190 Ga.App. 231,378 S.E.2d 407
• Parties: PERKINS HARDWOOD LUMBER COMPANY et al. v. BITUMINOUS CASUALTY CORPORATION.
• Court: Georgia Court of Appeals

Page 407

378 S.E.2d 407

190 Ga.App. 231

PERKINS HARDWOOD LUMBER COMPANY et al. v. BITUMINOUS CASUALTY CORPORATION.

No. 77783.

Court of Appeals of Georgia.

Feb. 8, 1989.

Zorn & Caldwell, William A. Zorn, Jesup, for appellants.

Bovis, Kyle & Burch, James E. Singer, Atlanta, for appellee.

CARLEY, Chief Judge.

This declaratory judgment action was precipitated by a tort action that was filed by appellant-defendants Edward DeLoach, Troy Denison and Jerry Mosley against appellant-defendant Perkins Hardwood Lumber Company (Perkins Hardwood). In that underlying tort action, it had been alleged that the negligence of appellant Perkins Hardwood was the proximate cause of injuries sustained in a multi-vehicle collision. The allegations of negligence related to a wood fire begun by an employee of appellant Perkins Hardwood, the smoke from which fire had allegedly reduced visibility on the roadway and caused the collision.

At the time of the collision, appellee-plaintiff Bituminous Casualty Corporation was the liability carrier for appellant Perkins Hardwood. After the tort action was filed, appellee initiated this declaratory judgment action, seeking a declaration that, under the "pollution exclusion" of the policy, it afforded no liability coverage to appellant Perkins Hardwood for damages resulting from the collision. Cross-motions for summary judgment were filed. After conducting a hearing, the trial court granted summary judgment in favor of appellee and denied appellants' motion for summary judgment. Appellants appeal from the trial court's orders.

1. In relevant part, the "pollution exclusion" provides: "This insurance policy does not apply (1) to bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release, or escape of pollutants.... Subparagraph (1) of this exclusion 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 material to be recycled, reconditioned or reclaimed." The uncontradicted evidence of record shows that the fire in question was not a "hostile fire." Thus, the specific limitation on the scope of the exclusion is inapplicable and the contractual interpretation issue that is presented for resolution is whether the exclusion is so broad as to negate the existence of liability coverage for injuries which allegedly resulted from the discharge of smoke from a non-hostile wood fire.

Appellants urge that the pollution exclusion is ambiguous as to whether the smoke from a wood fire is deemed to be a pollutant. However, the exclusion clearly and unambiguously defines a pollutant as an "irritant or contaminant including smoke...." The exclusion does not require that the "smoke" result from the burning of any specified material in order to be considered an "irritant or contaminant." " 'It is the duty of the courts to construe and enforce contracts as made, and not to make them for the parties.' [Cit.] The law will not make a contract for the parties which is different from the contract which was executed by them." Sellers v. Alco Fin., 130 Ga.App. 769, 770(4), 204 S.E.2d 478 (1974). "[A] contract of insurance should follow the cardinal rule of...