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Owners Insurance Company v. Singh9/21/1999
JUDGMENT: Reversed and Remanded
Plaintiff-appellant Owners Insurance Company appeals from the November 5, 1998, Judgment Entry of the Richland County Court of Common Pleas granting summary judgment in favor of defendant-appellee Baljit Singh dba Singh Enterprises.
STATEMENT OF THE FACTS AND CASE
Appellee Baljit Singh dba Singh Enterprises is the insured under a Businessowners Insurance Policy (Policy No. 9323540500) issued by appellant Owners Insurance Company to appellee. Such policy provided business liability protection for a number of residential rental properties owned by appellee, including one property located at 116 Elmridge Road in Mansfield, Ohio. Whereas the effective date of the policy was August 25, 1996, the policy expired on August 25, 1997. Eric Holmes, as of February 14, 1997, was a tenant occupying an apartment at the Elmridge Road address. On November 17, 1997, Holmes filed a complaint against appellee in the Richland County Court of Common Pleas (case number 97-888-H) alleging that, on or about March 5, 1997, he "was overcome with carbon monoxide poison fumes from a faulty furnace at the apartment and that appellee knew or should have known that the furnace was not in working order."
According to Holmes' complaint, appellee, prior to February 7, 1997, had been advised by gas company officials that he had faulty and/or nonfunctioning furnaces and furnaces at appellee's complex had been shut down by gas company inspectors because of malfunctions. Holmes, who alleged claims of negligence and bad faith against appellee, sought both compensatory damages and punitive damages from appellee. After investigating Holmes' claim, appellant initially agreed to provide a defense to appellee in the action filed by Eric Holmes under a reservation of rights since the Businessowners Policy of Insurance was in full force and effect on March 5, 1997, the date of the underlying incident.
Thereafter, on March 11, 1998, appellant filed a complaint for declaratory relief against appellee seeking a determination as to whether or not it had a duty to provide a defense to appellee in the action filed by Holmes. Appellant, in its complaint, alleged that the damages and injuries claimed by Eric Holmes were excluded from coverage under the pollution exclusion endorsement contained in the policy issued by appellant to appellee, and that, appellant, therefore, had no duty to defend appellee. On September 3, 1998, appellee filed a Motion for Summary Judgment. Five days later, appellant filed a Motion for Summary Judgment. A Responsive Memorandum was filed by appellee on September 17, 1998.
On October 2, 1998, appellant filed a response to appellee's Motion for Summary Judgment. With leave of court, appellee filed a second responsive memorandum on October 14, 1998. Pursuant to a Judgment Entry filed on November 5, 1998, the trial court granted summary judgment in favor of appellee, holding that "the Owners Insurance Company's business owners liability policy sold to him [appellee] does provide him coverage for any personal injury to Eric Holmes from carbon monoxide poisoning in his [Holmes'] residence about March 5, 1997." It is from the November 5, 1998, Judgment Entry that appellant prosecutes this appeal, raising the following assignments of error:
I. THE POLLUTION EXCLUSION CONTAINED IN THE INSURANCE CONTRACT CLEARLY AND UNAMBIGUOUSLY BARS COVERAGE FOR THE CLAIMS ASSERTED IN THE HOLMES ACTION.
II. THE TRIAL COURT ERRED IN THE INTERPRETATION AND APPLICATION OF THE POLICY'S "HOSTILE FIRE" EXCEPTION TO THE POLLUTION EXCLUSION.
An Amicus Curiae Brief has been filed by the Insurance Environmental Liti
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