Westchester Fire Ins. Co. v. City of Pittsburg, Kan.

• Decision Date: 25 June 1991
• Docket Number: Civ. A. No. 90-2305-O.
• Citation: 768 F. Supp. 1463
• Parties: WESTCHESTER FIRE INSURANCE COMPANY, Plaintiff, v. CITY OF PITTSBURG, KANSAS, a Municipal Corporation, Ernest Radell, Carol Radell, and Brandon Radell, a minor, by and through his mother and next friend, Carol Radell, Defendants.
• Court: U.S. District Court — District of Kansas

768 F. Supp. 1463

WESTCHESTER FIRE INSURANCE COMPANY, Plaintiff, v. CITY OF PITTSBURG, KANSAS, a Municipal Corporation, Ernest Radell, Carol Radell, and Brandon Radell, a minor, by and through his mother and next friend, Carol Radell, Defendants.

Civ. A. No. 90-2305-O.

United States District Court, D. Kansas.

June 25, 1991.

Jerome V. Bales, D'Ambra M. Howard, Wallace, Saunders, Austin, Brown & Enochs, Overland Park, Kan., for Westchester Fire Ins. Co.

Frank D. Menghini, Douglas M. Greenwald, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kan., for City of Pittsburg, Kan.

Robert S. Tomassi, Loy & Loy, Pittsburg, Kan., for Ernest, Carol and Brandon Radell.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on the motion of plaintiff Westchester Fire Insurance Company (hereinafter "Westchester") for summary judgment. Westchester contends that there is no coverage under a comprehensive general liability policy (hereinafter "CGL policy") that it issued to the defendant City of Pittsburg, Kansas (hereinafter "the City") for any claims asserted by Ernest Radell, Carol Radell, and Brandon Radell (hereinafter "the Radell family"), because the insurance policy contains a pollution exclusion clause. The defendant City asserts that the underlying tort litigation in the case at bar does not arise out of any acts of environmental pollution, but rather concerns alleged injuries suffered by City of Pittsburg residents as a result of normal city operations. For the reasons stated below, the court will deny plaintiff's motion.

I. STATEMENT OF FACTS

In a tort action precipitating the case at bar, defendants Ernest and Brandon Radell allege that they suffered personal injuries on July 31, 1989, as a result of breathing and ingesting Zep Formula 2162, a malathion mixture sprayed from a vehicle operated by the City of Pittsburg.¹ Prentiss Drug and Chemical Company, a manufacturer of insecticides, describes malathion as follows:

MALATHION is an insecticide of low mammalian toxicity, good knock-down effect and no residue, controlling a wide range of sucking and chewing insect pests in field, fruits and vegetables. It ensures no environment pollution and low hazard for wild life.

Prentiss Drug & Chem. Co., Malathion Technical 95% Premium Grade at 1 (emphasis added). A label on the container of Zep Formula states that "this product is toxic to fish" and instructs consumers not to contaminate water with Zep Formula.² The defendant City mixed diesel fuel with Zep Formula at a ratio of one part insecticide to thirty-nine parts diesel fuel.³

Westchester Fire Insurance Company issued a general liability insurance policy to the City of Pittsburg in November of 1988. This policy was in effect at the time in which the Radells allegedly sustained injuries. The commercial general liability coverage form contained in the policy states that Westchester Fire Insurance Company "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." Westchester Commercial General Liability Coverage Form ¶ 1(a). In addition, plaintiff's policy excludes coverage for "bodily injury" or "property damage" arising out of the discharge of pollutants. Westchester claims that the spraying of insecticide by the City "falls squarely" within the pollution exclusion clause, and that it is therefore under no obligation to provide coverage for the Radells' alleged injuries.

II. SUMMARY JUDGMENT STANDARDS

In considering a motion for summary judgment, the court must examine all the evidence in a light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981); Mahomes-Vinson v. United States, 751 F.Supp. 913, 916 (D.Kan.1990). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed. R.Civ.P. 56(c); Maughan v. S.W. Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir. 1985); see also 6 J. Moore, Moore's Federal Practice ¶ 56.04 (1990) (court is authorized to examine materials outside complaint to determine whether there is genuine issue of material fact to be tried). If the moving party does not bear the burden of proof, he must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). This burden is met when the moving party identifies those portions of the record which demonstrate the absence of material fact. Id. at 323, 106 S.Ct. at 2553; Deines v. Vermeer Mfg. Co., 752 F.Supp. 989, 993 (D.Kan.1990).

Once the moving party meets these requirements, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (emphasis added). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleading." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511; Tersiner v. Union Pac. R.R. Co., 740 F.Supp. 1519, 1522-23 (D.Kan.1990).

III. CONSTRUCTION OF INSURANCE CONTRACTS

The legal principles which govern the construction of contracts of insurance provide that a court should consider the instrument as a whole rather than limit its analysis to a single, isolated provision. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 35, 744 P.2d 840, 844 (1987); Home Life Ins. Co. v. Clay, 13 Kan.App.2d 435, 448-49, 773 P.2d 666, 676 (1989). Further, a court should endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished. Dronge v. Monarch Ins. Co. of Ohio, 511 F.Supp. 1, 4 (D.Kan.1979); Penalosa Co-op. Exchange v. Farmland Mut. Ins. Co., 14 Kan.App.2d 321, 323, 789 P.2d 1196, 1198 (1990). Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense. Unified School Dist. No. 501, Shawnee County, Kansas v. Continental Casualty Co., 723 F.Supp. 564, 566 (D.Kan.1989); Bramlett v. State Farm Mut. Ins. Co., 205 Kan. 128, 130, 468 P.2d 157, 159 (1970); Glenn v. Fleming, 14 Kan.App.2d 62, 69, 781 P.2d 1107, 1112 (1989), aff'd in part and rev'd in part, 247 Kan. 296, 799 P.2d 79 (1990). An unambiguous contract must be enforced according to its terms. Simpson v. KFB Ins. Co., Inc., 209 Kan. 620, 624, 498 P.2d 71, 75 (1972); Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 417, 449 P.2d 477, 480-81 (1969).

An insurance contract, however, may be ambiguous. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves one genuinely uncertain as to which of two or more meanings is proper. Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 516 P.2d 939, 941 (1973); Clark v. Prudential Ins. Co., 204 Kan. 487, 491, 464 P.2d 253, 256 (1970); Dodson Aviation, Inc. v. Rollins, Burdick Hunter of Kansas, Inc., 15 Kan.App.2d 314, 319, 807 P.2d 1319, 1323 (1991). In order to be found ambiguous, an insurance contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Dronge v. Monarch Ins. Co. of Ohio, supra, 511 F.Supp. at 4; Nash v. Adkins, 11 Kan.App.2d 326, 329, 720 P.2d 1129, 1131 (1986). Where the terms of the policy of insurance are ambiguous, uncertain, conflicting or susceptible of more than one meaning, the construction most favorable to the insured must prevail. Royal College Shop, Inc. v. N. Ins. Co. of N.Y., 895 F.2d 670, 674 (10th Cir.1990); Chance v. Farm Bureau Mut. Ins. Co., Inc., 756 F.Supp. 1440, 1442 (D.Kan.1991); Farm Bureau Mut. Ins. Co., Inc. v. Winters, 248 Kan. 295, 300, 806 P.2d 993, 996 (1991). The terms of a policy are construed against the insurer in close cases because "the drafter must suffer the consequences of not making terms clear." Lightner v. Centennial Life Ins. Co., supra, 242 Kan. at 36, 744 P.2d at 845; see also Gowing v. Great Plains Mut. Ins. Co., 207 Kan. 78, 79-80, 483 P.2d 1072, 1074-75 (1971) (construed against insurer because agreement is adhesion contract). When an insurance contract is not ambiguous, a court may not make another contract for the parties. Patrons Mut. Ins. Ass'n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741, 746 (1987); Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 538-39, 227 P.2d 571, 577 (1951).

The language of an insurance policy, like any other contract, must, if possible, be construed in such a manner as to give effect to the intention of the parties. Transamerica Ins. Co. v. Gage Plumbing & Heating Co., 433 F.2d 1051, 1054 (10th Cir.1970); Molzahn v. State Farm Mut. Auto. Ins. Co., 308 F.Supp. 1144, 1145 (D.Kan.1968), aff'd, 422 F.2d 1321 (10th Cir.1970); Crawford v. Prudential Ins. Co. of Am., 245 Kan. 724, 729, 783 P.2d 900, 904 (1989). In determining the intention of the parties, the subjective or undisclosed intent of the insurer does not control interpretation of the policy. Carriers Ins. Co. v. Am. Home Assurance Co., 512 F.2d 360, 364 (10th Cir.1975); St. Paul Fire & Marine Ins. Co. v. Medical Protective Co., 504 F.Supp. 877, 882 (D.Kan.1980), aff'd, 691 F.2d 468, 470 (10th Cir.1982). Rather, the test is what a reasonable person placed in the position of the insured would have understood the words to mean. Wise v. Westchester Fire Ins. Co., 463 F.2d 386, 390 (10th Cir.1972); Fancher v. Carson-Campbell,...