 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pilgrim Enterprises6/22/2000
In E&L;Chipping Co., Inc. v. Hanover Insurance Co., the insured's woodchip pile caught fire. 962 S.W.2d 272, 275 (Tex. App.-Beaumont 1998, no pet.). The plaintiffs, surrounding landowners, alleged that the insured's attempt to extinguish the fire by spraying large quantities of water caused a runoff of contaminated water that polluted their downstream properties. Id. The insurance policy in question defined an occurrence as "`an accident, including continuous or repeated exposure to substantially the same general harmful conditions.'" Id. The pleadings, however, alleged that, while the fire began before the policy period, ongoing damage from exposure to the resulting runoff continued into the policy period. Id. The court found that the policy did not require that the "occurrence" (the accident initially giving rise to the exposure) take place within the policy period. Id. However, because runoff resulted in contamination during the policy period, the court found a duty to defend even though the occurrence (the fire and its extinction) took place before the policy period. Id.
Although E&L;Chipping did not adopt a particular test for the triggering of coverage, its analysis is consistent with an exposure approach. Here, the Maryland policies do not define an occurrence as an event happening within a policy period, but as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage." (Emphasis added.) The policies' time restriction is found in the definitions of "bodily injury" or "property damage," which require the harm to occur during the policy period. Following E&L;Chipping, we find that the policies cover physical injury or property damage caused by exposure occurring during the policy periods, even if the contamination began before the policy periods. All five of the lawsuits allege continuous exposure to contaminants released by Pilgrim that seeped or leaked into the surrounding property. Potentially, at least, all of the pleadings allege property damage occurring during the policy period because of ongoing contamination or seepage.
Though it is possible to argue, from the pleadings, that the exposure occurred outside policy periods, the pleadings also support a claim for exposure occurring during policy periods. Because the pleadings potentially allege exposure during the policy periods and damages for this exposure, we conclude that Maryland owes Pilgrim a duty of defense, even if it should later become apparent that the contamination of which the plaintiffs complain occurred at a later point. See, e.g., Texas Property & Cas. Ins. Guar. Ass'n v. Southwest Aggregates, Inc., 982 S.W.2d 600, 604 (Tex. App.-Austin 1998, no pet.) (noting that " he duty to defend is not affected by facts ascertained before suit, developed in the process of the litigation, or by the ultimate outcome of the suit") (citing Maupin, 500 S.W.2d at 635.
III. Whether Maryland's defense costs should be allocated
Pilgrim also challenges the alternative argument in Maryland's motion for partial summary judgment that, if Maryland should owe a duty to defend, the court should allocate the cost of Pilgrim's defense among the various insurance carriers and Pilgrim. The trial court expressly granted, severed, and made final its summary judgment solely on the ground of Maryland's duty to defend. Accordingly, we do not address the merits of the alternative argument in this appeal. See Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex. 1992) (declining to address legal arguments on which the district court did not base summary judgment).
IV. Conclusion
We affirm that portion of the trial co
Page 1 2 3 4 5 6 7 8 9 10 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|