Opinion
No. CV 03 0070715
August 6, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT #104
BACKGROUND
On November 4, 2003, the plaintiff, National Grange Mutual Ins. Co. (National Grange), filed an amended complaint seeking a declaratory judgment as to its obligation to defend and indemnify the defendant, Reece Caraker, against claims made against him by Donna and Michael Emmelmann in a separate personal injury action. The original action is between the Emmelmanns, the defendant and the defendant's employer.
The action pending in the Superior Court at Hartford is Emmelmann v. Royal Sun Alliance Personal Ins. Co., Docket No. CV 03 0826414.
The Emmelmanns allege the following in the underlying complaint. In September 2001, the Emmelmanns hired the defendant's company to perform repairs to their kitchen. During the course of the repairs, the defendant and his employees removed the kitchen floor by sanding and grinding the linoleum, releasing a powder that contained unsafe levels of asbestos into the air of the Emmelmann's home. The Emmelmanns suffered injuries as a result of coming into contact with the asbestos in the powder. The Emmelmanns seek damages for the negligence of the defendants.
The plaintiff in the present declaratory judgment action alleges the following in its complaint. The plaintiff issued an insurance policy to the defendant with effective dates of August 15, 2001 to August 15, 2002. The policy contains a pollution exclusion clause. The relevant language excludes coverage for "bodily injury or property damages arising out of actual alleged or threatened discharge, dispersal, seepage, migration, CT Page 11232-dv release or escape of pollutants . . . at or from premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured." The exclusion clause defines "pollutants" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."
On January 23, 2004, the plaintiff filed a motion for summary judgment, supported by a memorandum of law. The plaintiff submitted a copy of the insurance policy, the affidavit of Roger Hamilton, an employee of National Grange and a copy of the amended complaint from the underlying litigation in support of its motion. On May 3, 2004, the plaintiff filed a reply to the defendant's memorandum in opposition.
DISCUSSION
Practice Book § 17-49 provides that summary judgment shall be granted if "the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material fact which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).
The plaintiff argues that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law because the exclusion clause in the insurance policy that it issued to the defendant bars coverage for the claims asserted by the Emmelmanns against the defendant. The defendant argues in CT Page 11232-dw opposition that summary judgment should be denied because the language in the insurance policy bars coverage of environmental pollution rather than exposure to asbestos inside of a private home.
I. Relevant Connecticut Law
"Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff] expected to receive and what the defendant was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . . This rule of construction favorable to the insured extends to exclusion clauses." (Citations omitted; internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 769-70, 653 A.2d 122 (1995). The underlying facts of Heyman involved a fuel oil spill in a waterway. Id., 759.
In Danbury Ins. Co. v. Novella, 45 Conn.Sup. 551, 727 A.2d 279, 23 Conn.L.Rptr. 387, Lager, J. (1998), the Superior Court expanded upon the Heyman analysis in applying it to lead paint exposure that occurred indoors and outdoors at a residence. The Novella Court observed that several other courts had found ambiguity in the exclusion clause terms "discharge," "dispersal," "release," and "escape," because they are terms of art in environmental law that are used to implicate industrial or hazardous waste pollution as opposed to indoor pollution. Id., 558. The Novella Court stated that while Heyman declined to adopt an environmental reading of the same language, it was probably unnecessary for the court to analyze the terms because a fuel oil spill in a waterway "presented a classic case of environmental pollution." Id. The court in Novella CT Page 11232-dx held that the exclusion clause was "ambiguous to the extent that a reasonable insured would interpret it to exclude coverage for claims arising out of factual circumstances more analogous to classic environmental pollution, but not for claims of personal injury allegedly sustained as a result of the type of paint covering the surfaces of rented premises." Id., 559. Novella therefore highlighted the importance of considering the polluting substance and the context in which the alleged pollution occurs. Judge Lager in Novella devised a threshold inquiry to analyze the problem of non-classic environmental pollutants. "To put it more simply, the first question is whether the only reasonable interpretation of the clause would categorize [linoleum] itself, on the interior of a residence, as a pollutant. The second question is whether the exposure as alleged in the underlying complaint constitutes a discharge, dispersal, release or escape under the terms of the policy. Both questions must be answered affirmatively for the pollution exclusion clause to apply." This court finds that neither test can be answered affirmatively.
The Connecticut courts have not addressed pollution exclusion clauses as applied to asbestos exposure in a private residence. In light of Heyman and Novella, the dispositive issues in this case are: 1) whether the policy language unambiguously defines the term pollutant; and 2) whether the policy language describing the manner of pollution unambiguously bars coverage of indoor exposure to asbestos.
II. A. Is Asbestos a Pollutant, Irritant, Contaminant or Waste?
Pollutant is defined in the exclusion clause at issue as "any solid, liquid, gaseous or thermal irritant or contaminant." "The dictionary defines contaminant as something that contaminates, and it defines contaminate as to soil, stain, corrupt, or infect by contact or association or to render unfit for use by the introduction of unwholesome or undesirable elements. Webster's Third New International Dictionary (1986). CT Page 11232-dy Similarly, the dictionary defines pollutant as something that pollutes . . . a polluting substance, medium, or agent and it defines pollute as to . . . impair the purity of . . . to make physically impure or unclean. Id." (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 772.
See Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment, Docket No. 104.50, Exhibit 1, National Grange Insurance Policy, Paragraph B(1)(f)(2)(b).
The exclusion clause in the present case also defines pollutants as "waste," and defines waste as "materials to be recycled, reconditioned or reclaimed." "Webster's Third New International Dictionary defines waste as damaged, defective, or superfluous material produced during or left over from a manufacturing process or industrial operation or refuse from places of human or animal habitation such as . . . garbage, rubbish." (Internal quotation marks omitted.) Danbury Ins. Co. v. Novella, supra, 45 Conn.Sup. 559 n. 9. Based on those definitions alone, asbestos does not clearly fall under the category of waste. In Section 22a-209-1 of the Connecticut Regulations, asbestos is categorized as a "special waste." The purpose of this provision, however, is to provide public waste disposal guidelines. In the context of pollution exclusion clauses, the statute does not unambiguously support the idea that waste refers to the release of asbestos fibers in a private home.
See Id.
In Yale University v. Signa Ins. Co., 224 F.Sup.2d 402 (Conn. 2002), the U.S. District Court applied the same definition of pollutant to asbestos on the interior of a structure. The court stated, "there can be little doubt that asbestos contamination in Yale's buildings rendered them unfit for use by the introduction of unwholesome or undesirable elements and/or physically impure or unclean, and therefore that the contaminating asbestos would be a contaminant or pollutant under the policies' Contaminant Exclusion." (Internal quotation marks omitted.) Id., 422. Other jurisdictions have similarly concluded that asbestos, when released indoors, constitutes a pollutant within the meaning of exclusion clauses. See, e.g., Selm v. American States Ins. Co., Court of Appeals of Ohio, First District, Docket No. C-010057 (September 21, 2001, Winkler, J.) (characterizing asbestos as a pollutant where it was CT Page 11232-ez released into a residence upon the removal of a kitchen floor); American States Ins. Co. v. Zippro Construction Co., 216 Ga.App. 499, 455 S.E.2d 133 (1995) (finding that asbestos unambiguously constituted waste and therefore a pollutant where it was released into a home following the repair of a kitchen floor).
Conversely, in Maryland Cas. Co. v. W.R. Grace Co., 794 F.Sup., 1206, 1229 (S.D.N.Y. 1991), rev'd on other grounds, 23 F.3d 617 (2nd Cir. 1993), the court stated "one would not usually associate asbestos with the substances listed in the exclusion, namely, smoke, fumes or waste . . . Those substances bear a closer relationship to industrial pollution, the usual subject of the ordinary pollution exclusion." (Citations omitted.) In Owens-Corning Fiberglas Corp. v. Allstate Ins. Co., 74 Ohio Misc.2d 144, 152, 660 N.E.2d 746 (1993), the court found that although some jurisdictions had previously classified asbestos as an irritant, contaminant or pollutant, those cases were "supported by neither case law nor a compelling rationale." The court held that as a matter of law, asbestos could not be categorized as an irritant, contaminant or pollutant. Id.
The plaintiff urges this court to follow Selm v. American States Ins. Co., supra, Docket No. C-010057, in determining that asbestos is a pollutant because it is factually analogous to the present case. In Selm, the court references several different pieces of federal legislation that characterize asbestos as a pollutant. Id. This legislation, however, is designed to address outdoor environmental pollution. Id. The fact that the court relied upon environmental statutes to bolster its opinion only lends support to the argument that pollution exclusion clauses contemplate classic cases of outdoor environmental pollution rather than indoor exposure to asbestos.
Many of the courts that have found asbestos on the interior of a structure to be a pollutant neglect to discuss the reasoning behind their decisions. In American States Ins. Co. v. Zippro Construction Co., supra, 216 Ga.App. 501, the court simply stated, "[t]here is little question that asbestos constitutes a CT Page 11232-ea pollutant as unambiguously defined in the exclusion." In Board of Regents v. Royal Ins. Co., 517 N.W.2d 888, 892 (Minn. 1994), the court stated, "[w]e would be doing a disservice to the English language if we were to say that asbestos fibers, which are a health hazard because of their irritant effects on the human body, were not an irritant." This court is inclined to agree that the existing case law provides little justification for arriving at the conclusion that asbestos, when inadvertently released indoors, constitutes the kind of air pollution contemplated by the pollution exclusion clauses.
In the present case, one could reasonably conclude that asbestos when released into the home is an "irritant," "contaminant" or "waste" and therefore constitutes a "pollutant." One could also reasonably conclude that asbestos when released into a home does not meet the definition of an "irritant," "contaminant" or "waste," contemplated by the policy and is therefore not a "pollutant." The exclusion clause is therefore ambiguous with respect to whether asbestos released as described in the complaint can be properly classified as a pollutant.
B. Language Describing the Manner of Pollution
The pollution exclusion clause at issue also states that insurance coverage is excluded for damages arising from the "discharge, dispersal, see page, migration, release or escape of pollutants." Other jurisdictions have analyzed identical language in pollution exclusion clauses and have determined that it creates ambiguity with respect to whether the clauses apply to indoor pollution. In Continental Casualty Co. v. Rapid American Corp., 80 N.Y.2d 640, 653, 609 N.E.2d 506, 593 N.Y.S.2d 640 (1993), the court initially concluded that asbestos, when released indoors, constituted a pollutant of the type contemplated by the clause. The court then considered the language referencing the manner of pollution and stated, "[t]he terms used in the exclusion to describe the method of pollution — such as `discharge' and `dispersal' — are terms of art in environmental law and are used with reference to damage CT Page 11232-eb or injury caused by disposal or containment of hazardous waste." Id. The court held the exclusion clause to be ambiguous. Id., 655. In Miano v. Hehn, 206 App.Div.2d 957, 959, 614 N.Y.S.2d 829 (1994), the court concluded that identical terminology was "ambiguous concerning whether the environment encompasses the air within a residential home through which asbestos fibers pass." Id.
Conversely, other courts have concluded that the same terminology is unambiguous. The majority of these opinions, however, halt their analysis upon determining that asbestos constitutes a pollutant. In Yale University v. Cigna Ins. Co., supra, 224 F.Sup.2d 423, the court concluded that asbestos released inside of a building was a pollutant within the meaning of the policy, but explicitly declined to discuss the terminology referencing the method of pollution that other courts have found to be ambiguous. In. Selm v. American States Ins. Co., supra, Docket No. C-010057 and American States Ins. Co. v. Zippro Construction Co., supra, 216 Ga.App. 499, the courts restricted their analysis to whether asbestos constituted a pollutant. Upon finding that it did neither, the court considered the terms that referenced the manner of pollution not their greater purpose. This court is inclined to agree with the more thoughtful decisions that dedicated additional discussion to the terminology describing the manner of pollution and found it to be ambiguous.
In the present case, one could conclude that the terms "discharge, dispersal, seepage, migration, release or escape" apply to outdoor environmental pollution only. One could also argue that the terms also apply to pollution that occurs indoors. The language referencing the manner in which the pollutant is released is therefore ambiguous with respect to whether the exclusion clause bars coverage for indoor exposure to asbestos.
The pollution exclusion clause is found to be ambiguous as to whether asbestos that is released in a private residence constitutes a pollutant. The language that is used to describe the manner of pollution is also ambiguous with respect to whether the exclusion clause CT Page 11232-ec bars coverage of indoor exposure to pollutants. Connecticut law requires that ambiguous exclusion clauses be construed in favor of providing coverage to the insured. Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 770. Based on the foregoing, the plaintiff is not entitled to judgment as a matter of law and its motion for summary judgment is denied.