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Gainsco Insurance Co. v. Amoco Production Co.8/19/2002
utilizes a standard of interpretation for insurance policies which declares that the words used are given the plain meaning that a reasonable person, in the position of the insured, understands them to mean. . . .
If the language is unambiguous, our examination is confined to the "four corners" of an integrated contract and extrinsic evidence is not admitted to contradict the plain meaning. . . . The language of an insurance policy is ambiguous if it is capable of more than one reasonable interpretation. . . . Because insurance policies represent contracts of adhesion where the insured has little or no bargaining power to vary the terms, if the language is ambiguous, the policy is strictly construed against the insurer. . . . However, the language will not be "tortured" to create an ambiguity. Doctors' Co., 864 P.2d at 1023-24.
THE CONTRACT
[ ] Andrews' duty to indemnify Amoco is contained in paragraphs 10 and 11(b) of the parties' Contract:
10. In order to eliminate controversies between [Andrews], its Subcontractors and Amoco and its joint owners, if any, and their respective insurers, [Andrews] assumes all liability for and hereby agrees to defend, indemnify and hold Amoco, its joint owner or owners, if any, and their insurers, harmless from and against any and all losses, costs, expenses and causes of action, including attorney's fees and court costs, for injuries to and death of [Andrews'] and its Subcontractor's employees, arising out of, incident to, or in connection with any and all operations under this contract and whether or not such losses, costs, expenses and causes of action are occasioned by or incident to or the result of the negligence of Amoco, its joint owner or owners, if any, and its agents, representatives and employees. [Andrews] agrees to insure this assumption of liability. The liability assumed by [Andrews] pursuant to this clause shall be limited to the amounts carried by [Andrews'] current liability insurance, but in no event shall it be less than the minimum limits set out in Paragraph 11(b), below.
11. . . .
(b). Comprehensive General Liability Insurance, including Contractual Liability coverage, with minimum limits of $100,000 each person, and $300,000 each occurrence for Bodily Injury and 100,000 each occurrence for Property Damage.
THE INSURANCE POLICY
[ ] To cover its assumed obligations under the Contract, Andrews purchased from Gainsco a $300,000.00 commercial general liability policy. At issue are two coverage exclusions, "total pollution" and "insured contract." The pollution exclusion is covered in two places in the policy. A separate notice following the declarations page reads as follows:
IMPORTANT NOTICE TO POLICY HOLDER TOTAL POLLUTION EXCLUSION
This policy contains restrictive language limiting the coverage provided under your policy, including a TOTAL POLLUTION EXCLUSION. This policy does not provide any coverage for pollution. The policy exclusion reads as follows:
POLLUTION EXCLUSION
This insurance does not apply to and no duty to defend is provided for:
1. "Bodily injury " or "property damage" which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time; or
Pollutants mean any solid, liquid, gaseous, bacterial or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.
Nearly identical language is then repeated in an endorsement atta
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