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Keggi v. Nothbrook Property12/5/2000
t apply to:
A. Bodily injury , property damage, personal injury arising out of:
1. The actual alleged or threatened discharge, dispersal, release or escape of pollutants[.]
The TIG policy defines "pollutants" as "any noise, solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot fumes, acids, alkalies, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed."
We conclude that TIG's pollution exclusion does not differ in any material respect from Northbrook's pollution exclusion, at least as applied to this case. For the reasons stated above, we conclude that the exclusion does not preclude coverage for Keggi's injuries arising from the bacterial contamination of water provided by Desert Mountain. The trial court erred in granting summary judgment to TIG based on the pollution exclusion clause. Keggi is entitled to judgment.
D. Requests for Attorneys' Fees
TIG and Northbrook request attorneys' fees pursuant to A.R.S. §§ 12-341.01(C) and 12-349. Having ruled in favor of Keggi, we decline to find that her appeal was meritless or brought merely for the purpose of delay or harassment, and therefore deny the fee requests.
Keggi requests an award of costs and attorneys' fees pursuant to A.R.S. § 12-341.01(A), which allows this court to award fees to the successful party in an action arising out of contract. As the prevailing party, Keggi is entitled to an award of costs. In our discretion, we award her reasonable attorneys' fees.
CONCLUSION
For the foregoing reasons, we reverse the trial court's judgment in favor of Northbrook and TIG, and remand for further proceedings consistent with this decision. We deny Northbrook's and TIG's requests for costs and attorneys' fees, and grant Keggi's request for costs and reasonable attorneys' fees.
JON W. THOMPSON, Judge
CONCURRING:
SHELDON H. WEISBERG Presiding Judge
CECIL B. PATTERSON, JR., Judge
Page 1 2 3 4 5 6 7 8 Arizona Personal Injury Attorneys
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