Steven R. Berger, Berger Chafetz, Miami, FL, for appellant.
Linda B. Foster, Neely Player, Atlanta, GA, Bradford A. Thomas, Miami, FL, Dennis M. Flannery, Nancy L. Manzer, Wilmer, Cutler Pickering, Washington, DC, Paul L. Nettleton, Miami, FL, Barry S. Bendetowies, Bradley Fischer, Ft. Lauderdale, FL, Carl D. Motes, Tallahassee, FL, for Aetna Casualty.
William A. Posey, Keating, Muething Klekamp, Cincinnati, OH, Edward R. Nicklaus, Coral Gables, FL, William R. Wicks, James W. McCready, Coral Gables, FL, for Transco Illinois ins.
William S. Daskam, Tampa, FL, for Continental Ins.
Ignatius Melito, New York City, for Hartford.
Appeal from the United States District Court for the Southern District of Florida.
(No. 91-8281-CV-SM),
Stanley Marcus, Judge.
[1] We affirm for all the reasons stated in the district court’s order dated September 9, 1994, granting summary judgment in favor of the appellees and against the City of Delray Beach. We attach the order as an “Appendix.”
APPENDIX
CITY OF DELRAY BEACH, Plaintiff, v. AGRICULTURAL INSURANCE COMPANY,
MISSION INSURANCE COMPANY, AETNA CASUALTY AND SURETY COMPANY, HARTFORD
ACCIDENT AND INDEMNITY COMPANY, ILLINOIS INSURANCE EXCHANGE, CALIFORNIA
INSURANCE COMPANY, CONTINENTAL INSURANCE COMPANY, PACIFIC EMPLOYERS
INSURANCE COMPANY, AMERICAN CENTENNIAL INSURANCE COMPANY, UNIVERSAL
SECURITY INSURANCE COMPANY, MUTUAL FIRE, MARINE INLAND INSURANCE
COMPANY, AND TRANSCO SYNDICATE #1, LTD., Defendants.
CASE NO. 91-8281-CIV-MARCUS
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
ORDER
THIS CAUSE comes before the Court upon (1) Defendant Transco
Syndicate # 1, Ltd. and Illinois Insurance Exchange’s (collectively
“Transco Syndicate”) motion for summary judgment, filed July 6, 1992;
and (2) California Union Insurance Company’s (“California Union”) motion
for summary judgment, filed on November 18, 1993. As to the first
motion, United States Magistrate Judge Stephen T. Brown, upon an order
of reference, issued a Report and Recommendation on September 27, 1993,
recommending that Transco Syndicate’s motion for summary judgment be
granted. Plaintiff, the City of Delray Beach, timely filed an objection
to the Report and Recommendation. Among a number of issues raised in
the motions, the parties present the following issue of first impression
under Florida law: whether the “personal injury endorsements” contained
in the Defendants’ comprehensive general insurance policies provide
coverage for the environmental contamination that occurred in this case.
For the reasons that follow, we conclude, as a matter of law, that the
moving parties’ CGL policies do not provide such coverage under Florida
law. Accordingly, Transco Syndicate’s motion for summary judgment is
GRANTED and California Union Insurance Company’s motion for summary
judgment is GRANTED.
I.
The factual and procedural background of the motions for summary
judgment filed in this matter are not in dispute. On April 21, 1988, in
a separate action, the City of Delray Beach brought suit in the Circuit
Court of the Fifteenth Judicial Circuit in and for Palm Beach County,
Florida, against a number of defendants for allegedly polluting the
city’s water supply. See City of Delray Beach v. Aero-Dri Corp., et
al., Case No. 88-3672-AJ. It appears that the Defendants failed to
dispose of their waste solvents at a proper disposal facility and
polluted the ground water through the discharge of those solvents. The
City of Delray Beach alleged a continuous and systematic pattern of
improper waste disposal and contamination of the city’s drinking water.
A jury returned a verdict in the case for the City in the amount of
$8,697,488.00 for past and future compensatory damages.
Page 1529
The City of Delray Beach now brings this cause of action against
numerous insurers, alleging that these insurance companies provided
various amounts of coverage to the defendants in the underlying state
court action. Three of the defendant insurance companies here have
filed motions for summary judgment arguing that as a matter of law their
insurance policies do not provide coverage for the cause of action in
the underlying state case. Defendants Transco Syndicate #1, Ltd., and
Illinois Insurance Exchange jointly wrote three commercial general
liability insurance policies insuring two of the defendants in the
underlying state court action: (1) Policy #DOL02250, providing primary
coverage of $500,000 for the period of October 1, 1985 through October
1, 1986; (2) Policy #DOL07567, providing primary coverage of
$1,000,000 for the period of October 1, 1986 through October 1, 1987;
and (3) Policy #DOL104251, providing excess coverage of $1,000,000 for
the period of October 1, 1987, through October 1, 1988. California
Union issued one policy that is at issue in this case, Policy No. 2204
EPO 01287, providing coverage for a policy period from October 1, 1987
through October 1, 1988.
Transco Syndicate and California Union have filed separate
motions for summary judgment asking this Court to find, as a matter of
law, that they do not owe any coverage under the above-stated insurance
policies to the City of Delray Beach for liability incurred by the
defendants in the underlying state court action. In short, the
insurance companies argue that the “pollution exclusion clauses”
contained in their respective comprehensive general liability insurance
policies preclude coverage to their insureds for any liability for the
environmental contamination that occurred in this case. Plaintiff has
responded that Transco Syndicate and California Union are liable on the
following independent grounds: (1) the pollution exclusion clauses
contained in the comprehensive general liability insurance policies do
not preclude coverage to the insureds for the environmental
contamination that occurred in this case; and (2) that even if the
pollution exclusion clauses do generally preclude coverage, the
insurance companies separately owe coverage under “personal injury
endorsements” contained in each of the policies.
Procedurally, this Court referred Transco Syndicate’s motion for
summary judgment to United States Magistrate Judge Stephen T. Brown for
a Report and Recommendation. Based upon the Supreme Court of Florida’s
recent ruling in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity
Insurance Corp., 636 So.2d 700 (Fla. 1993), reh’g denied, March 31, 1994,
the Magistrate Judge issued a Report and Recommendation in which he
recommended that the motion for summary judgment be granted in favor of
the Defendants as to both theories of recovery that the Plaintiff had
asserted. We now consider both motions for summary judgment together.
II.
The standard to be applied in reviewing summary judgment motions
is stated unambiguously in Rule 56(c) of the Federal Rules of Civil
Procedure:
The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law.
It may be entered only where there is no genuine issue of
material fact. Moreover, the moving party has the burden of meeting this
exacting standard. Adickes v. S.H. Kress Co., 398 U.S. 144, 157,
90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
In applying this standard, the Eleventh Circuit has explained:
In assessing whether the movant has met this burden, the courts should
view the evidence and all factual inferences therefrom in the light most
favorable to the party opposing the motion. Adickes, 398 U.S. at 157,
90 S.Ct. at 1608; [Environmental Defense Fund v.] Marsh, 651 F.2d [983] at
991 [ (5th Cir. 1981)]. All reasonable doubts about the facts should be
resolved in favor of the non-movant. Casey
Page 1530
Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598,
602 (5th Cir. 1981). If the record presents factual issues, the
court must not decide them; it must deny the motion and proceed
to trial. Marsh, 651 F.2d at 991; Lighting Fixture Elec.
Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213
(5th Cir. 1969). Summary judgment may be inappropriate even where the
parties agree on the basic facts, but disagree about the inferences that
should be drawn from these facts. Lighting Fixture Elec. Supply Co.,
420 F.2d at 1213. If reasonable minds might differ on the inferences
arising from undisputed facts, then the court should deny summary
judgment. Impossible Electronics [Techniques, Inc. v. Wackenhut
Protective Systems, Inc.], 669 F.2d [1026] at 1031 [ (5th Cir. 1982)].
Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir. 1970).
Moreover, the party opposing a motion for summary judgment need
not respond to it with any affidavits or other evidence unless and until
the movant has properly supported the motion with sufficient evidence.
Adickes v. S.H. Kress Co., 398 U.S. at 160, 90 S.Ct. at 1609-10;
Marsh, 651 F.2d at 991. The moving party must demonstrate that the
facts underlying all the relevant legal questions raised by the
pleadings or otherwise are not in dispute, or else summary judgment will
be denied notwithstanding that the non-moving party has introduced no
evidence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12
(5th Cir. 1967). See Dalke v. Upjohn Co., 555 F.2d 245, 248-49 (9th
Cir. 1977).
Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368-69 (11th
Cir. 1982); see also Amey, Inc. v. Gulf Abstract Title, Inc.,
758 F.2d 1486, 1502 (11th Cir. 1985), cert. denied, 475 U.S. 1107,
106 S.Ct. 1513, 89 L.Ed.2d 912 (1986). The United States Supreme Court has
recently provided significant additional guidance as to the evidentiary
standard which trial courts should apply in ruling on a motion for summary
judgment: [The summary judgment] standard mirrors the standard for a
directed verdict under Federal Rule of Civil Procedure 50(a), which is
that the trial judge must direct a verdict if, under the governing law,
there can be but one reasonable conclusion as to the verdict. Brady v.
Southern R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239
(1943).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,
106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Court in Anderson further stated
that “[t]he mere existence of a scintilla of APPENDIX-Continued evidence
in support of the position will be insufficient; there must be evidence
on which the jury could reasonably find for the [non-movant].” Id at
252, 106 S.Ct. at 2512. In determining whether this evidentiary
threshold has been met, the trial court “must view the evidence
presented through the prism of the substantive evidentiary burden”
applicable to the particular cause of action before it. Id at 254,
106 S.Ct. at 2513. If the non-movant in a summary judgment action fails to
adduce evidence which would be sufficient, when viewed in a light most
favorable to the non-movant, to support a jury finding for the
non-movant, summary judgment may be granted. Id at 254-55,
106 S.Ct. at 2513-14.
In another recent case, the Supreme Court has declared that a
non-moving party’s failure to prove an essential element of a claim
renders all factual disputes as to that claim immaterial and requires
the granting of summary judgment:
In our view, the plain language of Rule 56(c)
mandates the entry of summary judgment . . .
against a party who fails to make a showing
sufficient to establish the existence of an
element essential to that party’s case, and
on which that party will bear the burden of
proof at trial. In such a situation, there
can be “no genuine issue as to any material
fact,” since a complete failure of proof
concerning an essential element of the
nonmoving party’s case necessarily renders
all other facts immaterial. The moving
party is “entitled to judgment as a matter
of law” because the nonmoving party has
failed to make a sufficient showing on an
essential element of her case
Page 1531
with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
2552-53, 91 L.Ed.2d 265 (1986).
III.
A.
Under Florida law, a number of general rules govern our
interpretation of the insurance policies in question, particularly as to
whether any ambiguities exist in the policies’ language. To begin,
where the essential facts of the case are not in dispute, it is
appropriate for the district court to interpret an insurance contract to
determine whether any ambiguities exist as to coverage as a matter of
law. Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d 1172,
1174 (11th Cir. 1985) (applying Florida law) (determined on motion for
summary judgment); Jones v. Utica Mut. Ins. Co., 463 So.2d 1153
(Fla. 1985) (interpretation of policy appropriate where no dispute over
the facts). An “ambiguity” exists in an insurance policy only when a
term or provision in that policy is susceptible to two or more
differing, reasonable interpretations — one resulting in coverage and one
resulting in exclusion. Dahl-Eimers v. Mutual of Omaha Life Ins. Co.,
986 F.2d 1379, 1381 (11th Cir. 1993) (applying Florida law) (citing
Weldon v. All Am. Life Ins. Co., 605 So.2d 911, 915 (Fla. 2d DCA 1992)).
Furthermore, this Court must interpret the provisions at issue in an
insurance policy in the context of the entire policy. As the Eleventh
Circuit has observed: [i]n Florida, a court must construe every
insurance contract according to the entirety of its terms and
conditions. A court should construe each sentence in connection with
other provisions of the policy to arrive at a reasonable construction
that accomplishes the intended purpose of the parties. Haenal v. United
States Fidelity Guar. Co., 88 So.2d 888 (Fla. 1956).
International Ins. Co. v. Johns, 874 F.2d 1447, 1456 (11th
Cir. 1989); see also Reid v. State Farm Fire Casualty Co., 352 So.2d 1172
(Fla. 1977).
In determining whether an ambiguity exists, we are to assess
first the natural or plain meaning of the policy language in dispute.
Dahl-Eimers, 986 F.2d at 1382 (citing Landress Auto Wrecking Co. v.
United States Fidelity Guar. Co., 696 F.2d 1290, 1292 (11th Cir. 1983)
(applying Florida law)). Although an insurance contract may often be a
complex instrument, it does not follow that an analysis of that contract
conducted in order to fully comprehend its meaning implies any
ambiguity. Alpha Therapeutic Corp. v. St. Paul Fire Marine Ins. Co.,
890 F.2d 368, 370 (11th Cir. 1989) (citing State Farm Fire Casualty Co.
v. Oliveras, 441 So.2d 175, 178 (Fla. 4th DCA 1983)). It is true that
an ambiguity, when found, is to be construed strictly in favor of the
insured. Rigel v. National Casualty Co., 76 So.2d 285, 286 (Fla. 1954).
However, where no ambiguity exists, the court is restricted from
creating one through the addition of a meaning which is not present in
the terms of the policy. Excelsior Ins. Co. v. Pomona Park Bar
Package Store, 369 So.2d 938 (Fla. 1979).
B.
The first issue raised in the motions for summary judgment is
whether or not, as a matter of law, the “pollution exclusion clauses”
contained in the comprehensive general liability insurance policies of
the two Defendants preclude coverage to their insureds for liability for
the environmental contamination that occurred in this case. While this
issue was hotly contested in Florida as recently as eighteen months ago,
the Supreme Court of Florida has now essentially resolved it in favor of
the insurer.
This issue of whether coverage exists under the bodily injury or
property damage provisions of a comprehensive general liability policy
has been difficult for courts around the country to decide, and perhaps
none more so than the Supreme Court of Florida. Originally, in Dimmitt
Chevrolet, Inc. v. Southeastern Fidelity Insurance Co., No. 78, 293,
1992 WL 212008 (Fla. September 3, 1992), the Court, in a 4-3 vote, held
that the
Page 1532
1973 CGL pollution exclusion clause did not preclude coverage for
liability arising out of environmental contamination as a matter
of law. This decision essentially offered the following three
holdings: (1) the term “sudden and accidental” as used in the
pollution exclusion is susceptible to more than one meaning,
including “abrupt and immediate” and “unexpected and unintended”;
(2) divergence among jurisdictions in the construction of the
pollution exclusion clause was indicative of the ambiguity
inherent in the exclusion; and, (3) the drafting history of the
pollution exclusion clause cut in favor of finding coverage (due
in large part to misrepresentations allegedly made to Florida’s
Insurance Commissioner at the time that it was submitted for
approval with the State). Id.
However, in July of 1993, the Supreme Court of Florida withdrew
the earlier opinion and reversed its position in Dimmitt Chevrolet, Inc.
v. Southeastern Fidelity Insurance Co., 636 So.2d 700 (Fla. 1993), to
conclude that as a matter of law the pollution exclusion clause
precludes coverage for environmental contamination liability. In this
opinion, the Supreme Court of Florida essentially held the following:
(1) the drafting history of the pollution exclusion clause has support
on both sides and does not resolve the issue; and (2) the term “sudden
and accidental” is not ambiguous-“[a]s expressed in the pollution
exclusion clause, the word sudden means abrupt and unexpected.” Id. at
703-706. As the Court concluded:
In the final analysis, we construe this policy
to mean that (1) basic coverage arises from the
occurrence of unintended damages, but (2)
such damages as arise from the discharge of
various pollutants are excluded from basic
coverage, except that (3) damages arising from
the discharge of these pollutants will fall
within the coverage of the policy where such
discharge is sudden and accidental.
Id. at 705 (citing Liberty Mut. Ins. Co. v. Triangle Indus.,
Inc., 957 F.2d 1153 (4th Cir.), cert. denied, 506 U.S. 824,
113 S.Ct. 78, 121 L.Ed.2d 42 (1992)).
While six of the seven Justices held to the same position as in
the original opinion, Justice Grimes reversed his stance to favor the
argument that the pollution exclusion clause precludes coverage for
environmental damages liability. Justice Grimes wrote a concurrence
that, in full, states:
I originally concurred with the position of the
dissenters in this case. I have now become
convinced that I relied too much on what
was said to be the drafting history of the
pollution exclusion clause and perhaps
subconsciously upon the social premise that
I would rather have insurance companies cover
these losses rather than parties such as
Dimmitt who did not actually cause the
pollution damage. In so doing, I departed
from the basic rule of interpretation that
language should be given its plain and ordinary
meaning. Try as I will, I cannot wrench
the words “sudden and accidental” to mean
“gradual and accidental,” which must be done
in order to provide coverage in this case.
Id. at 706 (Grimes, J., concurring).
Based upon this newer opinion in Dimmitt Chevrolet, Magistrate
Judge Brown recommends that the motions for summary judgment be granted
as to the issue of the bodily injury and property damage provisions.
Specifically, the Magistrate Judge recommended that “[g]iven the plain
and ordinary meaning of the exclusions in these policies, it was clearly
the intent of the parties to exclude coverage for the cause of action in
the underlying litigation.” Rep. Rec., p. 6. Recognizing that there
are a number of differences in the language of the various pollution
exclusion clauses used by Transco Syndicate and California Union, the
Magistrate Judge further observed:
The plaintiff, utilizing supreme lawyer
ingenuity attempts to create an ambiguity by
pointing out that each of the clauses contains
different words. The issue is not the words
used, but rather their meaning. One of us may
say that six plus one equals seven. Another of
us may say five plus two equals seven. Yet a
third may say four plus three equals seven. We
have all reached the same conclusion traveling
different paths. It is insignificant to this
court that merely because different words were
used there must be an ambiguity
Page 1533
here, somewhere. Furthermore, the issue is not
whether this is an absolute exclusion, but whether
it is clear and [un]ambiguous that the exclusionary
clauses herein intended to eliminate coverage for
the activities alleged in the underlying action.
Id. at 6-7.
In both its objection to the Magistrate Judge’s Report and
Recommendation concerning the Transco policies and in response to
California Union’s motion for summary judgment, Plaintiff concedes the
difficulty of the position it takes. For instance, in its response to
California Union’s motion for summary judgment, Plaintiff states:
Obviously, the Plaintiff is bound to recognize the
status of Florida law to the extent that Florida
law controls the outcome of the instant litigation.
Although the City of Delray Beach does not agree
with the [Florida] Supreme Court’s opinion on
rehearing, and believes that the original opinion
should have remained applicable, the Plaintiff
must accept the current state of the law on that
issue as the Florida Supreme Court has decided it.
Pltff.’s Resp. to Cal. Union’s Mot.Summ.Judgm. at 2.
We agree fully with the position of the Magistrate Judge (and
the concession on the part of Plaintiff) as to the issue of coverage
under the bodily injury and property damages provisions of the
comprehensive general liability policies: the Supreme Court of Florida
has laid the issue to rest in Dimmitt Chevrolet, Inc. v. Southeastern
Fidelity Insurance Co., 636 So.2d 700 (Fla. 1993). Accordingly, on this
particular issue, the motions for summary judgment filed by Transco
Syndicate and California Union are GRANTED.
C.
Accordingly, we turn to the issue on which the parties focus
their attention, the issue of whether the “personal injury endorsements”
contained in the Defendants’ comprehensive general insurance policies
provide coverage for the environmental contamination that occurred in
this case.
The issue can be presented most clearly by using one of the
insurance policies at issue as an example. In particular, we focus on
the policy that all of the parties agree creates the greatest
possibility of coverage in this matter: Transco Syndicate’s Policy #
DOL02250. Exclusion S of that policy, the “pollution exclusion” clause,
provides:
This insurance does not apply to bodily injury
or property damage arising out of the discharge,
disbursal, 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 water course
or body of water.
The “personal injury endorsement” reads:
“Personal Injury” means injury arising out of
one or more of the following offenses committed
during the policy period
1. false arrest, detention, imprisonment, or
malicious prosecution;
2. wrongful entry or eviction or other invasion
of the right of private occupancy;
3. a publication or utterance
(a) of a libel or slander or other defamatory
or disparaging material, or
(b) in violation of an individual’s right of
privacy, except publications or utterances in
the course of or related to advertising,
broadcasting, publishing or telecasting
activities conducted by or on behalf of the
named insured shall not be deemed personal injury.
By its terms, the pollution exclusion clause does not apply to
coverage under the personal injury endorsement, but only to “bodily
injury” or “property damage” coverage. Therefore, if the personal
injury endorsement insures against the risk of environmental
contamination, then the pollution exclusion clause will not negate that
coverage. In order for the defendant insurer to be liable under the
personal injury endorsement, however, the actions on which the
underlying claims against the insureds are based must constitute one or
more of the listed offenses.
Unlike a general insurance policy, where coverage is stated in
very broad terms and
Page 1534
subject to clearly defined exceptions (as is the case in the
bodily injury and property damage coverage of defendants’
policies), the personal injury coverage is “buil[t] from the ground up
and affords coverage only for defined risks.’
County of Columbia v. Continental Ins. Co., 189 A.D.2d 391,
595 N YS.2d 988, 991 (1993) (quoting Martin v. Brunzelle, 699 F. Supp. 167,
171 (N.D.Ill. 1988)), aff’d, 83 N.Y.2d 618, 612 N.Y.S.2d 345,
634 N.E.2d 946 (1994). The plaintiffs argue that the insureds’ failure
to properly dispose of waste solvents and subsequent pollution of drinking
waters comprises a “wrongful entry or eviction or other invasion of the
right of private occupancy.” We disagree.
First, the listed offenses under paragraph two of the personal
injury endorsement require an interference with private occupancy. Both
“wrongful entry” and “eviction” imply an interference with possessory
rights. County of Columbia v. Continental Ins. Co.,
595 N.Y.S.2d at 991; Barry R. Ostrager, Special Insurance Coverage Issues Arising Out
of Hazardous Waste/Environmental Clean-Up Litigation, in Handbook on
Insurance Coverage Disputes Section(s) 10.05 (5th ed. 1992). Where, as
here, no intent to occupy the property has been shown, and indeed no
interference with possession has occurred, there can be neither wrongful
entry nor eviction. Plaintiff’s analysis requires that the term “other
invasion of the right to private occupancy” lack such a requirement.
However,
[u]nder the doctrine of “ejusdem generis,” when
an enumeration of specific things is followed by
some more general word or phrase, then the general
word or phrase will usually be construed to refer
to things of the same kind or species as those
specifically enumerated. This doctrine is actually
an application of the broader maxim “noscitur a
sociis” which means that general and specific words
capable of analogous meaning when associated
together take color from each other so that the
general words are restricted to a sense analogous
to the specific words.
Thomas v. City of Crescent City, 503 So.2d 1299, n. 2 (Fla. 5th
DCA 1987). Thus, when read in context, the phrase “other invasion of
the right of private occupancy” means an offense tantamount to wrongful
entry or eviction and requires an impingement upon possessory rights.
Therefore, the environmental damage at issue in this case does not
amount to any of the listed offenses under the personal injury
endorsement.
Second, the enumerated offenses under the personal injury
endorsement all relate to the violation of private rights. Here, there
is no indication that the insureds are “threatened with liability for
interfering with property owners’ or occupants’ rights of private
occupancy.” Harrow Products, Inc. v. Liberty Mut. Ins. Co.,
833 F. Supp. 1239, 1246 (W.D.Mich. 1993). Because there is no charge against the
insureds by a private occupant of the city’s water supply, there can be
no “invasion of the right of private occupancy.” See id. Plaintiff
urges this Court to consider the decision in City of Edgerton v. General
Casualty Co., 172 Wis.2d 518, 493 N.W.2d 768 (Ct.App. 1992), rev’d in
part on other grounds, 184 Wis.2d 750, 517 N.W.2d 463 (1994).[1] In
Edgerton, the Wisconsin Court of Appeals found coverage for a similar
pollution of water supplies under an identical personal injury
endorsement. However, the Wisconsin courts have been more receptive to
finding environmental contamination coverage by insurance carriers than
have the Florida courts. Compare Dimmitt Chevrolet, Inc. v.
Southeastern Fidelity Ins. Co., 636 So.2d 700 (Fla. 1993) (holding that
the expression “sudden and accidental” in a pollution exclusion clause
is unambiguous and conveys a temporal element), with Just v. Land
Reclamation, Ltd., 155 Wis.2d 737,
Page 1535
456 N.W.2d 570 (1990) (holding that the phrase “sudden
and accidental” in a pollution exclusion clause has no temporal
requirement).[2] Furthermore, the court of appeals in
Edgerton relied on a Wisconsin statute for its conclusion that private
occupancy rights existed in the public water supply. 493 N.W.2d at 781.
Thus, this Court is not convinced that Edgerton is persuasive with
respect to Florida law.
Moreover, this Court finds itself bound by the straightforward
mandate of Leek v. Reliance Insurance Co., 486 So.2d 701 (Fla. 4th DCA
1986). The circumstances of that case neatly parallel those in the
present action. In that case, the Leeks were sued for property damages
after they hired a service to cut the tops of a neighbor’s trees which
dropped pine needles onto the Leeks’ property. The Leeks then filed a
third party complaint for coverage against their insurer. The policies
at issue provided coverage for property damage, but contained the
following exclusion: “We will not pay for property damage: b. caused
intentionally by any insured who is 13 years of age or older. . . .” Id.
at 703. In addition, the policies included coverage for personal
injury, defined, in relevant part, as: “invasion of privacy, wrongful
eviction or wrongful entry. . . .” Id. “The complaint against the Leeks
specifically alleged both trespass and wrongful entry. Nonetheless, the
court held that the Leeks were not covered under their policy, stating:
Had this been an action for injury arising out
of an insured tortious act; namely, wrongful
entry, we would have been compelled to
reverse here. . . .
But it is not a claim for personal injury, raising echoes of the
old saw that if my aunt were a man, she would be my uncle. Nowhere in
the [first insurer’s] policy is there any language, with respect to
damage to the property of others, which would neutralize the specific
exclusion for intentional acts of the insured which occasion damage to
others’ property. Similarly, the [second insurer’s] policy insures
against injury; and as its counsel argues in his brief:
“Simply put, one cannot “injure’ property any
more than one can “damage’ a person.”
Stated another way by [second insurer’s] counsel at oral
argument, personal injury is injury to a person.
Id. at 704. Similarly, in this case, neither is there an
exception to remove the damage in this action from the pollution
exclusion clauses in these policies, nor can this environmental damage
be considered personal injury.
Finally, as we have stated, we “must construe every insurance
contract according to the entirety of its terms and conditions.”
International Ins. Co. v. Johns, 874 F.2d at 1456. In addition, this
Court agrees with the reasoning in Titan Corp. v. Aetna Casualty and
Surety Co., 22 Cal.App.4th 457, 27 Cal.Rptr.2d 476 (1994),[3] that no
clause should be interpreted in a manner which eviscerates any other
provision. Id. at 485-86. The analysis urged by Plaintiffs would
result in precisely such a negation of the pollution exclusion clauses
contained in these policies. The type of environmental contamination
present in this case would fall squarely within the coverage for
property damage in this policy were it not expressly excepted by the
pollution exclusion. Stretching the personal injury endorsement to
cover risks specifically insured under the property damage provisions
would essentially render the pollution exclusion meaningless. Id.;
County of Columbia v. Continental Ins. Co., 595 N.Y.S.2d at 991; O’Brien
Energy Sys. v. American Employers’ Ins. Co., 427 Pa. Super. 456,
Page 1536
629 A.2d 957 (1993), appeal denied, 537 Pa. 633, 642 A.2d 487 (1994).
The resolution of the many issues surrounding insurance coverage
for pollution-related environmental contamination has effected a sharp
division among the courts around this nation. Despite the desire to
shift the costs of clean-up to the deep pockets of insurers, the Florida
courts have shown reluctance to distort the plain language and structure
of insurance policies and the intentions of the parties contracting for
insurance coverage. See Dimmitt Chevrolet, Inc. v. Southeastern
Fidelity Ins. Co., 636 So.2d at 706 (Grimes, J., concurring).
Accordingly, we agree with the interpretation of personal injury
coverage offered by the court in Titan Corp. v. Aetna Casualty Surety
Co., 27 Cal.Rptr.2d at 486. Relying on Leek v. Reliance Insurance Co.,
486 So.2d 701 (Fla. 4th DCA 1986), the Titan court “interpret[ed] the
coverage afforded by the personal injury portion of the policy as being
limited to damages other than the injury to realty which an occupier of
land may suffer when his quiet enjoyment of occupancy is disturbed.”
Titan, 27 Cal.Rptr.2d at 486. Therefore, as a matter of law, this
personal injury endorsement will not cover the environmental
contamination presented in this case. Accordingly, with respect to
Transco Syndicate’s Policy # DOL02250, the motion for summary judgment
filed by Transco Syndicate is GRANTED.
D.
Also at stake in this litigation for Transco Syndicate are two
additional policies issued to the insureds covering the time period from
October 1, 1986, through October 1, 1988. In addition, a single policy
was issued to the insureds by California Union covering the period from
October 1, 1987 to October 1, 1988. These remaining three policies are
susceptible to the same analysis given with respect to Transco
Syndicate’s Policy #DOL02250. The second policy issued by Transco
Syndicate (Policy #DOL07567) and the California Union policy (Policy
#2204 EPO 01287) use the same definition of personal injury. The
relevant portion provides coverage for injury due to “[w]rongful entry
into, or eviction of a person from, a room, dwelling or premises that
the person occupies” — a more limited definition with regard to wrongful
entry-type offenses than that given in Transco Syndicate’s Policy
#DOL02250. Even in a leading case finding coverage under policy language
identical to that in Transco Syndicate’s Policy #DOL02250, the court
found no duty to indemnify for damage from pollutants under language
identical to that found in these two policies. See Titan Holdings
Syndicate v. City of Keene, 898 F.2d 265, 272 (1st Cir. 1990). Again,
the offenses of wrongful entry and eviction cannot be inflated to reach
the acts of pollution present in this case; the damages complained of
are not personal injuries, and this Court will not interpret these
insurance contracts in such a way that the pollution exclusion clauses
are rendered meaningless. Therefore, as a matter of law, the insurers
owe no coverage with respect to these personal injury endorsements.
Finally, the third policy issued to the insureds by Transco
Syndicate (Policy #DOL104251) contains a blanket pollution exclusion
pertaining to all coverage — including personal injury:
ABSOLUTE POLLUTION EXCLUSION SUPERSEDING AND
REPLACING ANY AND ALL PROVISIONS TO THE CONTRARY.
Regardless of any provision of this policy or of any applicable
underlying policies of insurance it is understood and agreed that: the
policy shall not apply to any liability 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 the land, the
atmosphere or any water course or body of water, whether such discharge
is sudden, accidental, or otherwise. (emphasis added).
Thus, as a matter of law, regardless of the coverage provided in
the personal injury endorsement, liability for the environmental
contamination present in this case will fall within the pollution
exclusion, and no coverage exists under this policy for this
environmental
Page 1537
damage. See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins.
Corp., 636 So.2d 700. Accordingly, with respect to Transco
Syndicate’s policies #DOL104251 and #DOL07567 and California
Union’s Policy #2204 EPO 01287, the motions for summary judgment filed
by Transco Syndicate and California Union are GRANTED.
Accordingly, it is hereby ORDERED and ADJUDGED that Defendant
Transco Syndicate’s motion for summary judgment is GRANTED, and
Defendant California Union’s motion for summary judgment is GRANTED.
Defendants Transco Syndicate and California Union shall submit proposed
orders for final summary judgment within ten (10) days from the date of
this Order.
DONE AND ORDERED in Miami, this 9th day of September, 1994.
/s/ Stanley Marcus
STANLEY MARCUS, UNITED STATES DISTRICT JUDGE
