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Doerr v. Mobil Oil Corp.12/19/2000
ry because of inhaling chemicals during an investigation into damaged containers of pesticide at his work. The plaintiff's employer was a warehousing company which had agreed to warehouse a pesticide even though some of the storage containers had earlier been damaged. See id. at 1359-60. The Fourth Circuit reasoned that when an insured only incidentally possesses a pollutant in the course of other business, the exclusion does not apply. See id. at 1360. Consequently, the court found that only when the insured is actually a "polluter" would the exclusion apply. See id. at 1361. The court remanded the case to the district court for a determination of that issue of fact. See id.
Similarly, this reasoning was followed in Crabtree v. Hayes-Dockside, Inc., 612 So. 2d 249, 252-53 (La. App. 4 Cir. 1992), where the defendant was found to be a th "polluter" within the meaning of the policy because of his routine and regular transportation of polyvinyl chloride -- the substance which caused the damage in the case. Finally, the Third Circuit adopted this reasoning and held that the pollution exclusion could only be enforced if an insured was an active industrial polluter who knowingly emitted pollutants over a period of time. See Avery v. Commercial U. Ins. Co., 621 So. 2d 184, 190 (La. App. 3rd Cir. 1993).
Following Avery, this court gave its first interpretation of the application and meaning of the pollution exclusion in Louisiana. In South Central Bell Telephone Co. v. Ka-Jon Food Stores, Inc., 93-2926, p. 1 (La. 5/24/94), 644 So. 2d 357, 357, vacated on other grounds, (La. 9/15/94), 644 So. 2d 368, an underground gas tank at the Ka-Jon convenience store leaked and caused damage to subsurface telephone cables owned by South Central Bell. State Farm Insurance Company had initially issued a standard CGL policy to Ka-Jon with a standard pollution exclusion. See id. 93-2926 at 2, 644 So. 2d at 358. When the policy was reissued in 1986, the policy contained an "Absolute Pollution Exclusion." See id. Relying on this provision, State Farm filed a motion for summary judgment. See id. The trial court followed the decision in West and found that Ka-Jon was not an active industrial polluter. See id. 93-2926 at 3, 644 So. 2d at 358. Therefore, the motion was denied. See id. The First Circuit Court of Appeal expressly disagreed with West and found that the pollution exclusion clause "clearly and unambiguously" excluded coverage in the case. See id. This court granted a writ to resolve the conflict. See id. 93-2926 at 4, 644 So. 2d at 358-59.
After documenting the history of pollution exclusions, this court, in Ka-Jon, found that the exclusion in the case was ambiguous as a matter of law because a literal reading of the exclusion could lead to absurd consequences. See id. 93-2926 at 11, 644 So. 2d at 364. The court found that the intent of the policy was "to insure Ka-Jon against fortuitous accidents and incidental business risks of running its convenience store." See id. 93-2926 at 13, 644 So. 2d at 365. The court held that the pollution exclusion would preclude coverage for: "(1) all damages or losses resulting from intentional acts of pollution or pollution causing activities, including remedial damages for environmental cleanup operations, and (2) environmental damages resulting from fortuitous pollution occurrences, including remedial damages for environmental cleanup operations." Id. 93-2926 at 12-13, 644 So. 2d at 364. Finally, the court distinguished intentional acts of pollution from fortuitous acts and found that coverage for fortuitous acts of pollution was only excluded as they might pertain to environmental damage, not to other types of damage. See id. 93-2926 at 13-14, 644 So. 2d at 365. Theref
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