Andersen v. Highland House Company5/11/2000
JUDGMENT: REVERSED AND REMANDED.
Defendant-appellant Indiana Insurance Company ( Indiana ) appeals from the granting of summary judgment in favor of defendants-appellees Highland House Company ( Highland House ) and Renaissance Management, Inc. ( RMI ), thereby requiring Indiana to provide insurance coverage pursuant to a policy of insurance. For the reasons adduced below, we reverse the judgment of the trial court and remand for further proceedings.
A review of the record on appeal indicates that on March 7, 1997, Daniel Wojtala sustained bodily injuries, and Lisa Anderson died, after inhaling carbon monoxide fumes emanating from a defective heating unit within an apartment owned by Highland. Thereafter, three separate cases were filed. The first action was Georgene M. Anderson, etc. v. Highland House Company, et al., Cuyahoga County Common Pleas Court Case No. 332211, in which the estate of Lisa Anderson sued Highland and RMI alleging a claim for wrongful death. Highland and RMI named Mr. Wojtala as a third-party defendant in case number 332211. The second action was Indiana Insurance Co. v. Herbert Chisling, et al., Cuyahoga County Common Pleas Court Case No. 339629. The third action is the case sub judice, Cuyahoga County Common Pleas Court Case No. 339657. The second and third actions both sought a declaratory judgment regarding Indiana's duty to defend and indemnify its insureds, Highland and RMI.
In pertinent part, the insurance policies issued to Highland and Mr. Chisling state the following:
SECTION I - COVERAGES COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY
*
2. EXCLUSIONS. This insurance does not apply to:
*
f. Pollution.
(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) at or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured;
*
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
The umbrella policy language provides, in pertinent part, the following:
SECTION I - COVERAGE
*
C. EXCLUSIONS
1. This insurance does not apply:
*
g. (1) To Bodily Injury, Personal Injury , * 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.
*
SECTION V - DEFINITIONS
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(N) Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
In the action sub judice, Highland and RMI filed a motion for summary judgment on the issue of insurance coverage, arguing that the policy language relative to Pollution Exclusion was ambiguous and should be limited to environmentally-related losses. Subsequent to opposition briefs being filed by Indiana which relied upon policy language excluding pollution, the trial court granted summary judgment in favor of Highland and RMI on December 8, 1998, concluding that the policy language contained in the pollution exclusion was ambiguous and that the Indiana insurance policies provided coverage for the claims o
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