 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gainsco Insurance Co. v. Amoco Production Co.8/19/2002
sed this issue.
[ ] The pollution exclusion has been around, in one form or another, since the early 1970's. American States Ins. Co. v. Koloms, 177 Ill.2d 473, 227 Ill.Dec. 149, 687 N.E.2d 72, 77 (1997). The present version of the exclusion, known as the "total" or "absolute" pollution exclusion, was drafted in 1985. Id. As might be expected, both Amoco and Gainsco have cited cases from other jurisdictions supporting their respective interpretations of the exclusion and its applicability to the facts of this case. We will not attempt to review all those cases, but we will mention two that are representative of the contrasting positions.
[ ] In Bernhardt v. Hartford Fire Ins. Co., 102 Md.App. 45, 648 A.2d 1047, 1049-52 (1994), cert. granted, 337 Md. 641, 655 A.2d 400, cert. dismissed, 338 Md. 415, 659 A.2d 296 (1995), the Maryland Court of Special Appeals found that (1) the total pollution exclusion was not ambiguous; (2) it was not limited solely to incidents of industrial pollution; and (3) it applied to preclude coverage for injuries resulting from the accumulation of carbon monoxide gas due to obstructions in an apartment building's chimney flue. To the contrary, in Koloms, 687 N.E.2d at 75-82, the Supreme Court of Illinois pointedly rejected the reasoning of Bernhardt and concluded that the total pollution exclusion was intended to apply only to "those injuries caused by traditional environmental pollution." Id. at 82.
[ ] In the context of this split in authority, it is probably not surprising that the parties' experts in the present case disagreed as to whether the question of coverage was fairly debatable. We must remember that, for purposes of the issue at hand, asking that question is not the same as asking whether there actually was coverage under the policy. Undoubtedly, the language of the exclusion could, on its face, be applied to the accidental release of a poisonous gas. For that reason, and given the disparity of authority nationwide on this question, we conclude that Gainsco had a reasonable basis for its original denial of coverage. Stated differently, it is not necessarily an act of bad faith for an insurer to deny or delay payment of benefits where the underlying incident objectively may be seen as being covered by a policy exclusion, particularly where there is no controlling authority within the jurisdiction.
Issue No. 4: Did the district court err as a matter of law when it held that Gainsco's denial of coverage to Andrews amounted to first-party bad faith, because the insured contract exclusion made the question of coverage fairly debatable?
[ ] Gainsco's policy insured Andrews against contractually assumed tort liability. The present issue arises out of Gainsco's inclusion in the policy of the following language, drafted by Gainsco's product manager and included in no other insurer's policy:
However, this insurance does not apply to that part of any contract or agreement that indemnifies any person or organization for the indemnitee's sole tort liability. (Emphasis in original.)
It is Gainsco's position that the phrase, "the indemnitee's sole tort liability," excludes from coverage those contracts wherein its insured agrees to indemnify the other contracting party in situations where the insured, himself, is not liable. In other words, Gainsco contends that the word "sole" does not mean the other party is the sole tortfeasor; rather, it means that, as between the other party and the insured, the other party is the only tortfeasor.
[ ] Amoco characterizes Gainsco's logic on this issue as a "jump off the coverage analysis cliff into the netherworld of absurd contract interpretation." T
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wyoming Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|