COMMERCIAL GENERAL LIABILITY – COMMERCIAL UMBRELLA LIABILITY – ABSOLUTE POLLUTION EXCLUSION – CHOICE OF LAW – BODILY INJURY CLAIMS
Ben Weitsman & Son of Scranton, LLC v. Hartford Ins. Co.(N.D.N.Y., 2/13/2018)
Plaintiff-insured operated a scrap metal facility. The failure or rupture of a cylinder or tank on the insured's property allowed a large, white cloud of toxic chlorine gas to escape and drift onto adjoining property where two people working an outdoor Christmas tree lot and three people inside a car were overcome and injured by the gas. Based on the CGL policies' absolute pollution exclusion and the commercial umbrella liability policies' pollution exclusion Hartford denied coverage both before and again after the claimants brought suit for bodily injuries.
In GRANTING summary judgment to Hartford, the District Court rejected the insured's arguments that the the polluting event was more analogous to indoor polluting events or ones injuring only a single claimant:
As an initial matter, the Court finds that, although there are certainly some differences between the law of New York and that of Pennsylvania, no actual conflict of law exists as those laws apply to this case because, under both states' law, the outcome of this case would be the same: Defendants have established that the exclusions are stated in clear and unmistakable language, are subject to no other reasonable interpretation, and apply to the environmental pollution that occurred on November 28, 2011, in Scranton, Pennsylvania.
The provision in the primary general liability policies clearly defines "pollutants" as, in part, "any . . . gaseous . . . irritant or contaminant, including . . . chemicals. . . ." See, supra, Fact No. 33 in Part I.B.1.c. of this Decision and Order. Similarly, the provision in the umbrella liability policies clearly defines "pollution hazard" as "an actual exposure . . . to the corrosive, toxic or other harmful properties of any . . . gaseous . . . [p]ollutants" or "[i]rritants," which include "[c]hemicals." See, supra, Fact No. 35 in Part I.B.1.c. of this Decision and Order.
Of course, chlorine is a chemical. See, e.g., Webster's New World College Dictionary at 258 (Houghton Mifflin Harcourt 4th ed. 2010) (defining "chlorine" as "a greenish-yellow, poisonous, gaseous chemical element, one of the halogens, having a disagreeable odor and obtained by electrolysis of certain chlorides: it is used as a bleaching agent, in water purification, in various industrial processes, etc.") (emphasis added); Oxford American Dictionary at 109 (Oxford Univ. Press 1980) (defining "chlorine" as "a chemical element used in sterilizing water and in industry") (emphasis added).
Furthermore, the provision in the primary general liability policies clearly excludes from coverage, in part, the "actual . . . [or] alleged . . . discharge, . . . migration, release or escape of pollutants." See, supra, Fact No. 31 in Part I.B.1.c. of this Decision and Order. Similarly, the provision in the umbrella liability policies clearly excludes from coverage, in part, the "actual . . . injury or damage of any nature or kind to persons or property which arises out of or would not have occurred but for . . . an actual exposure . . . to the corrosive, toxic or other harmful properties of any . . . gaseous . . . [p]ollutants" or "[i]rritants." See, supra, Fact No. 35 in Part I.B.1.c. of this Decision and Order.
Under the circumstance, the Court finds that a rational fact-finder could not dispute that such a "discharge," "migration," "release," "escape" and/or "exposure" of pollutants was alleged in the Houser complaint. For example, the Houser complaint alleged that "toxic chlorine gas . . . [was] released from a cylinder/tank/vessel stored on [Plaintiffs'] property, releasing the chlorine gas into the air and causing a toxic cloud of chlorine gas to form," which "drifted in the air from the [Plaintiff's] property" to other properties, where Heidi Houser and Dorothy Houser "were over-taken by the cloud and were forced to inhale toxic fumes of chlorine gas from the cloud," and where Mary Ogden, Mary Irwin and Emelie Irwin were "engulfed" by the cloud and "forced to inhale toxic fumes of chlorine gas from the cloud." See, supra, Fact Nos. 15, 17, 18 and 19 in Part I.B.1.b. of this Decision and Order (emphasis added).
With regard to Plaintiffs' argument that the Fourth Department has "held a nearly identical definition of `pollutant' to be per se ambiguous" (Dkt. No. 28, Attach. 9, and 15 [attaching page "11" of Plfs.' Opp'n Memo. of Law]), that argument overstates the holding of the Fourth Department in Roofers' Joint Training, Apprentice and Educ. Comm. of W. New York v. Gen. Accident Ins. Co. of Am., 275 A.D.2d 90 (N.Y. App. Div., 4th Dep't 2000) ("Roofers"), and ignores the distinction between the facts of Roofers and the facts of case before this Court. In Roofers, the Fourth Department held that "the total pollution exclusion endorsement in the policy is ambiguous as applied to Rickard's claim," because "[a]n ordinary insured in plaintiff's shoes would not understand that the policy does not cover a claim for bodily injuries such as those sustained by Rickard." Roofers' Joint Training, Apprentice and Educ. Comm. of W. New York, 275 A.D.2d at 92 (emphasis added). Moreover, the claim for bodily injuries in Roofers stemmed from "toxic fumes" (caused by heated roofing membrane) which remained in a classroom and injured a single construction worker there during a demonstration. Id. at 91.
Such a minor amount of fumes confined to their intended area (i.e., indoors) is significantly different from the gaseous substance in this case-a white cloud of chlorine gas large enough to travel outdoors to two adjoining properties and trap and engulf five people (including an automobile) there. Cf. Cataract Metal Finishing, Inc. v. Hartford Fire Ins. Co., 02-CV-0261, 2003 WL 251955, at *2, n.10 (W.D.N.Y. Jan. 2, 2003) (distinguishing Roofers on the ground that the claim in Roofers stemmed merely from noxious fumes that remained inside a building); Gold Fields Am. Corp. v. Aetna Cas. and Surety Co., 295 A.D.2d 289, 289-90 (N.Y. App. Div., 1st Dep't 2002) (distinguishing Roofers on the ground that the claim in Roofers stemmed merely from hazardous substances that were not released "into the open environment").
Such a large, white, environmentally mobile cloud is also factually distinguishable from the gaseous substances in the other two New York cases relied on by Plaintiffs, which involved (1) a spray of sulfuric acid that remains on a property and affects only one person, or (2) some paint and solvent fumes that remain in an office building and bother one person. Karroll v. Atomergic Chemetals Corp., 194 A.D.2d 715, 715 (N.Y. App. Div., 2d Dep't 1993); Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377, 388 (N.Y. 2003).
Indeed, a factually analogous case supports the Court's conclusion that New York law bars coverage under the policies. See Tri-Mun. Sewer Comm'n v. Cont'l Ins. Co., 636 N.Y.S.2d 856, 857 (N.Y. App. Div., 2d Dep't 1996) (applying New York law to find that noxious odors, which emanated from a sewage plant and traveled to an adjoining property, constituted "pollution" for purposes of a pollution exclusion provision in an insurance policy).
For all of these reasons, the Court grants Defendant's motion for summary judgment.
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