Protective National Insurance Co. of Omaha v. City of Woodhaven
Protective National Insurance Co. of Omaha v. City of Woodhaven
Opinion of the Court
In this case, we are asked to interpret and apply pertinent policy provisions of a comprehensive general liability insurance policy. The question presented is whether the policy’s pollution exclusion is applicable, thus, absolving the insurer of any duty to indemnify or defend the insured in the underlying action.
We find that the Court of Appeals erred in holding that the policy’s pollution exclusion arguably did not apply and that therefore, the insurer had a duty to defend the insured. Accordingly, we reverse the decision of the Court of Appeals.
I. FACTS AND PROCEEDINGS
On August 24, 1984, a third party brought an action against the City of Woodhaven for damages sustained as an alleged result of exposure to chemical pesticide sprayed by Woodhaven. Woodhaven sprayed pesticide as part of its service to control insects and pests.
Woodhaven had a comprehensive general liability policy with Protective National Insurance Company of Omaha. Woodhaven sought coverage under the policy, claiming that Protective National had a duty to indemnify and defend Woodhaven in the underlying action. Protective National agreed to defend Woodhaven, but under a reservation of rights.
On January 6, 1986, Protective National filed a
On January 13, 1987, Protective National filed a motion for summary disposition pursuant to MCR 2.116(0(10). The court held that since the discharge of pesticide by Woodhaven was intentional and part of the normal continuous services provided by the city to its residents, coverage under the policy was precluded by the pollution exclusion. Consequently, the court found that Protective National did not, as a matter of law, have a duty to indemnify or defend Woodhaven. Therefore, on June 29, 1987, the court granted Protective National’s motion for summary disposition.
On September 28, 1988, the Court of Appeals reversed the circuit court’s grant of summary disposition in an unpublished opinion per curiam (Docket No. 101968). The Court held that the policy’s pollution exclusion arguably did not apply and, therefore, Protective National had a duty to defend Woodhaven. The Court further held that summary disposition should be granted in favor of Woodhaven pursuant to MCR 2.116(I)(2).
Protective National filed an application for leave to appeal in this Court. We initially elected to deny leave to appeal.
Protective National argues that their policy does not impose upon them a duty to indemnify or defend Woodhaven in the underlying action. The policy states, under the section titled "Insuring Agreement”:
In consideration of the payment of premium, in reliance upon the statements herein or attached hereto, and subject to all of the terms of this policy, the Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay by reason of liability imposed by law, or liability assumed under contract, insofar as the Named Insured may legally do so, for damages because of:
Coverage A - Bodily Injury Liability
Coverage B - Property Damage Liability
Coverage C - Errors or Omissions Liability
Coverage D - Personal Injury Liability
Coverage E - Indemnification for Claims Administration Errors and Omissions
to which this policy applies, caused by an occurrence, during the policy period. [Emphasis added.]
The policy states, under the "Defense, Settlement, Supplementary Payments” section, that "[a]s respects such insurance as is afforded by this policy, the Company shall: (a) defend any suit against the Insured claiming such damages, even if such suit is groundless, false or fraudulent . . . .” (Emphasis added.)
Under this policy, the insurer will pay for damages "to which this policy applies,” and the insurer will defend under the policy any suit against the insured claiming such damages even if the suit
The court described an insurer’s duty to defend in Detroit Edison Co v Michigan Mutual Ins Co, 102 Mich App 136, 141-142; 301 NW2d 832 (1980), as follows:
The duty of the insurer to defend the insured depends upon the allegations in the complaint of the third party in his or her action against the insured. This duty is not limited to meritorious suits and may even extend to actions which are groundless, false, or fraudulent, so long as the allegations against the insured even arguably come within the policy coverage. An insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. Dochod v Central Mutual Ins Co, 81 Mich App 63; 264 NW2d 122 (1978). The duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third party’s allegations to analyze whether coverage is possible. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62; 250 NW2d 541 (1976). In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor. 14 Couch, Insurance, 2d (rev ed), § 51:45, p 538 [now § 51:49, p 489]. [Emphasis in original.]
In Jonesville Products, Inc v Transamerica Ins Group, 156 Mich App 508, 513; 402 NW2d 46 (1986), the Court stated that "it was the duty of [the insurer] to undertake the defense until it
We conclude that the allegations of the third party against the insured, under the facts presented in this case, do not even arguably come within the policy coverage. There is no doubt, even after looking behind the third party’s allegations, whether coverage is possible. It is not. Therefore, we find that the policy did not impose upon Protective National a duty to indemnify or defend Wood-haven.
The policy is subject to several exclusions which limit the broad coverage otherwise provided under the policy.
This policy does not apply:
I. 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 material or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental .... [Emphasis added.]
The claimed damages in Woodhaven arose out of the discharge, dispersal, release, or escape of irritants, contaminants, or pollutants into the atmosphere. Thus, the pollution exclusion applies and, as an initial matter, precludes coverage under the
[W]hile it is clear from the record that the release of the pesticide was a regular, intentional activity of defendant, it is arguable that the "dispersal” or "escape” of the pesticide to an area where it could come in contact with Ronald Vann’s skin was both a sudden and an accidental event, which caused injury to Ronald Vann. Potentially, a temporal event, i.e., a sudden gust of wind, blew the pesticide into the window of the Vann’s house causing the injury. [Slip op, p 4.]
This argument by Woodhaven and the Court of Appeals misapplies and misconstrues the clear language of the pollution exclusion and the exception thereto. The discharge, dispersal, release, or escape of irritants, contaminants, or pollutants to
Applying this logic to the facts of this case, we conclude that the application of the pollution exclusion depends exclusively on the discharge, dispersal, release, or escape of the pesticide into the atmosphere. The behavior of the pesticide in the environment, after this initial release, is irrelevant. Furthermore, since the release of the pesticide by Woodhaven into the atmosphere was inten
Therefore, we find that the pollution exclusion applies in this case and that Woodhaven, as a matter of law, is not entitled to coverage under the policy.
III. RESPONSE TO DISSENT
While the dissent appears to agree with the analysis presented above, in his opinion, Chief Justice Cavanagh argues that the majority has failed to focus on and analyze a crucial part of the pollution exclusion. The dissent believes that a determination must first be made with regard to whether the pesticide sprayed by Woodhaven is a substance to which the pollution exclusion applies. Furthermore, the dissent argues that there is no necessity for examining the sudden and accidental exception to the exclusion until there has first been a determination regarding whether the pesticide is a "pollutant.” The dissent claims that since there has been no proper determination regarding whether the pesticide is a "pollutant,” it is possible that it is not a "pollutant” and, therefore, the pollution exclusion arguably may not apply. This would mean coverage would arguably be possible and, thus, Protective National would have a duty to defend Woodhaven.
The dissent makes several arguments in support of its contention that the plain and clear language of the policy quoted above should not be applied.
First, the dissent argues that "[t]he very title of the clause is instructive, both sides in this matter refer to it as a 'pollution exclusion.’ ... It seems basic that the exclusion, therefore, should apply only to acts of pollution.” Post, p 169.
We find the language of the policy to be better evidence of what the exclusion excepts from coverage than some term of convenience created by litigants, the judiciary, and other members of the legal community to describe the otherwise unnamed, untitled section of such policies.
In referring to the language of the policy, the so-called pollution exclusion is found under paragraph "i” of the section of the policy titled, simply, "Exclusions.” The plain language of exclusion i clearly applies to "smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste material or other irritants, contaminants or pollutants . . . .” (Emphasis added.) To hold, as the dissent would, that exclusion i should apply to exclude only acts of "pollutants” would be to ignore the other words in exclusion i. We refrain from such attempts to rewrite clear and unambiguous language under the guise of interpretation. Eghotz v Creech, 365 Mich 527, 530; 113 NW2d 815 (1962).
Second, the dissent argues that
[i]f the pesticide is not in the class of substances intended to be excluded by the pollution-exclusion*165 clause, then the exclusion does not apply and there is no need to examine the sudden and accidental exception to the exclusion. Therefore, until the factfinder determines whether the pesticide satisfied the exclusion clause, the insurer has a duty to defend.
The lower court took judicial notice that Pratt 505K is a toxic chemical, but this is not a proper matter for judicial notice. [Post, pp 168-170.]
We refer the dissent to part of a deposition of Robert Thomas, Director of Public Service for the City of Woodhaven, which was read into the record in this case without objection from defendant-appellee Woodhaven. This evidence, present in the record, shows that the pesticide (Pratt 505K) contained directions and a caution label which read as follows:
"Caution, harmful if inhaled, swallowed or absorbed through the skin, avoid breathing spray mist, avoid contact with skin, eyes and clothing. In case of contact wash with soap and water for eyes. Get medical attention. Wash thoroughly after using. Store away from children and domestic animals. Avoid contamination in food.”
It is almost beyond comprehension how anyone would seriously argue that such a pesticide is not an "irritant, contaminant or pollutant.” Similarly, on the basis of such evidence, we do not understand how anyone can seriously argue that the trial court improperly determined, for the purpose of granting Protective National’s motion for summary disposition, that the pesticide was an "irritant, contaminant or pollutant” as required by the language of exclusion i in the policy. We believe the trial court was correct, under the circum
The dissent also argues:
Under the expansive interpretation of the majority, everyday business operations such as tree spraying, mosquito removal, weed control, and rodent extermination could never be covered by insurance because they would involve chemicals that are potentially "toxic” and would not involve accidental releases. I am not persuaded that this was the intent of the insurance companies in drafting the pollution-exclusion clause. [Post, p 173.]
First, in so arguing, Chief Justice Cavanagh seems to be suggesting that the words "smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases”
Secondly, Chief Justice Cavanagh ignores the existence of the sudden and accidental exception clause which restores coverage for such releases that are "sudden and accidental.” Obviously, this argument by the dissent is misplaced and is premised on a distortion of the majority’s position.
We do not find the pollution exclusion to be ambiguous.
Because coverage under the policy is not even possible, we find that Protective National did not have a duty to defend Woodhaven. We, therefore, reverse the decision of the Court of Appeals and reinstate the findings of the circuit court.
432 Mich 929 (1989).
435 Mich 862 (1990).
Although in Upjohn Co v New Hampshire Ins Co, 438 Mich 197; 476 NW2d 392 (1991), a companion case to this one, the Court rejected the definition of "sudden and accidental” as prescribed by the Michigan Court of Appeals in Jonesville, the Court’s criticism of Jonesville was limited to that issue.
Since it is not disputed that Woodhaven’s spraying operation was an "occurrence” as defined in the policy, we do not address this issue.
In Upjohn v New Hampshire Ins Co, n 3 supra, pp 207-208, a companion case to this one, the Court concluded that "when considered in its plain and easily understood sense, 'sudden’ is defined with a 'temporal element that joins together conceptually the immediate and the unexpected.’ [United States Fidelity & Guaranty Co v] Star Fire Coals, [856 F2d 31, 34 (CA 6, 1988)]. The common, everyday understanding of the term 'sudden’ is ' "happening, coming, made or done quickly, without warning or unexpectedly; abrupt.” ’ FL Aerospace [v Aetna Casualty & Surety Co, 897 F2d 214, 219 (CA 6, 1990)]. 'Accidental’ means '[occurring unexpectedly and unintentionally; by chance.’ The American Heritage Dictionary: Second College Edition, p 72.”
The full and proper quotation includes liquids or gases, "waste material or other irritants, contaminants or pollutants . . . See ante, p 160.
The dissent cites Farm Family Mutual Ins Co v Bagley, 64 AD2d 1014; 409 NYS2d 294 (1978), to support its claim that the pollution exclusion is ambiguous. However, in Technicon, supra, 141 AD2d 124, the same court, ten years later, declined to follow the rule of law enunciated in Farm Family Mutual, and held that the pollution exclusion is unambiguous. Moreover, the Court of Appeals of New York also held that the pollution exclusion is unambiguous. See Technicon, supra, 74 NY2d 71 ("the pollution exclusion from coverage provision in the applicable primary comprehensive general liability insurance policy is unambiguously plain and operative”).
Dissenting Opinion
(dissenting). The Court of Appeals in this case held that "it is arguable that the pollution exclusion clause does not apply. . . . [W]e conclude that plaintiff breached its duty to defend and that summary disposition should have been granted in favor of defendant.” Unpublished opinion per curiam of the Court of Appeals, decided September 28, 1988 (Docket No. 101968), p 5. I would affirm the decision of the Court of Appeals, but for different reasons.
As in Polkow v Citizens Ins Co of America, 438
In focusing upon the "sudden and accidental” exception to the pollution-exclusion clause, rather than examining the actual pollution-exclusion clause itself, the lower court overlooked basic rules of contract interpretation and evidence. If the pesticide is not in the class of substances intended to be excluded by the pollution-exclusion clause, then the exclusion does not apply and there is no need to examine the sudden and accidental exception to the exclusion. Therefore, until the fact-finder determines whether the pesticide satisfied
For the pollution-exclusion clause to apply, the action complained of must be the type of occurrence intended by the parties to the contract.
The lower court took judicial notice that Pratt 505K is a toxic chemical, but this is not a proper matter for judicial notice. MRE 201(b) states:
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Courts can take judicial notice when the fact so noticed is one of general knowledge.
It is axiomatic that contract interpretation must take into account the intention of the parties. The pollution-exclusion clause was likely intended to prevent the ongoing, intentional pollution that occurs from industrial wastes, i.e., when companies dump wastes into the environment. It should not necessarily operate to disallow coverage for all pesticide spraying. While chemical by-products and industrial waste products probably were targeted by the pollution-exclusion clause, it is in no way clear that an ordinary function such as spraying for insects was specifically targeted by the clause. One court, in construing the pollution-exclusion clause demonstrated how such a broad interpretation can lead to absurd results:
"If a child at a city pool complains about the chlorine in his or her eyes, the causative factor is a chemical but the city has not polluted the environment. If a fire hydrant sprays water on a passer-by, that water may be an 'irritant’ to the person, but again the municipality responsible for*173 the fire hydrant has not polluted the environment.” [Westchester Fire Ins Co v Pittsburg, supra at 1470.]
If the passer-by in the above example was injured by the water, the insurer should not be heard to claim that coverage is excluded by the pollution-exclusion clause. It may be accurate to conclude that the pesticide is a "toxic chemical,”
See McNair v State Hwy Dep’t, 305 Mich 181; 9 NW2d 52 (1943); Queen Ins Co v Hammond, 374 Mich 655; 132 NW2d 792 (1965) (when
The exclusion provides:
This policy does not apply:
I. 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 material or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental .... [Emphasis added.]
It is not persuasive to argue that the intent of the insurance industry is not a part of the record and therefore shielded from the inquiry of this Court. Indeed,, the paucity of the record and the posture of summary disposition in this case is only one more factor militating in favor of imposing a duty to defend until these proofs are admitted into a record which would allow a factfinder to establish the applicability, or inapplicability, of the pollution-exclusion clause and its exception as they relate to the facts of this case.
Each of the cases cited by the majority deal with substances determined to be a "pollutant.” Ante, p 162. This comports with the statement of the appellant that "[t]he exclusion unambiguously excludes from coverage liability based on all intentional discharges of pollutants . . . .” (Emphasis added.)
See, e.g., Burke, Pollution exclusion clauses: The agony, the ec-stacy, and the irony for insurance companies, 17 N Ky L R 443, 450 (1990); note, The pollution exclusion clause through the looking glass, 74 Geo L J 1237, 1251, n 73 (1986), and 2 Long, Law of Liability Ins, § 10A.04[2], p 10A-48.
See, e.g., Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347; 415 NW2d 178 (1987) (it is common knowledge that burning buildings collapse); Firemen’s Ins Co v Sterling Coal Co, 348 Mich 564; 83 NW2d 319 (1957) (the explosive character of dynamite is a matter of general knowledge); Weever v Weiandt, 321 Mich 585; 32 NW2d 897 (1948) (ordinary trucks can, and often do, travel as fast as thirty-two or more miles per hour).
The appellant declared that "[e]ven if the chemicals at issue . . . were as harmless as milk or sugar, that would not invalidate [the trial court’s] decision.” This argument ignores the requirement that the substance be an "irritant, contaminant or pollutant.”
In the brief filed before this Court, however, the plaintiff seems to retreat from this position and assume that the pesticide is unquestionably a "pollutant.” The summary argument was stated, in part, as follows: "[T]he pollution exclusion [clause] was not . . . triggered by
It is important to note, however, that it was not proven to be toxic to humans and the president of Miller Chemical testified that Pratt 505K had been cleared for use by United States Environmental Protection Agency. Furthermore, Pratt 505K is not classified by the Michigan Department of Agriculture as a restricted pesticide requiring special precautions. See affidavit of Robert Mescher, Pesticide Registration Specialist for Michigan Department of Agriculture.
Reference
- Full Case Name
- Protective National Insurance Company of Omaha v. City of Woodhaven
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- 73 cases
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- Published