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Richardson v. Nationwide Mutual Insurance Company6/12/2003
As amended June 16, 2003.
ANTOINETTE RICHARDSON, APPELLANT,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLEE.
Certified Question from the United States Court of Appeals for the District of Columbia Circuit (00-7203)
David P. Sutton, with whom Robert J. Pleshaw was on the brief, for appellant.
Catherine M. Colinvaux, with whom David P. Durbin was on the brief, for appellee.
Robert R. Rigsby, Corporation Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corporation Counsel, and Michael F. Wasserman, Assistant Corporation Counsel, filed a brief for the Commissioner of the District of Columbia Department of Insurance and Securities Regulation, amicus curiae.
Laura A. Foggan and John C. Yang filed a brief for the Complex Insurance Claims Litigation Association, amicus curiae.
Before Schwelb, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Argued April 23, 2002
Opinion for the court by Associate Judge SCHWELB.
Dissenting opinion by Associate Judge GLICKMAN at page 52.
Antoinette Richardson, a security guard at an apartment complex operated by National REO Management (REO), alleges that she suffered serious personal injuries, including brain damage, as a result of inhaling carbon monoxide fumes from a leaking gas furnace located on the premises. In a suit against REO which she brought in the Superior Court, Ms. Richardson alleged, inter alia, that REO failed to exercise due care in maintaining the furnace and that her injuries were proximately caused by REO's negligence.
REO was insured under a comprehensive general liability (CGL) insurance policy issued by Nationwide Mutual Insurance Company (Nationwide). The policy contained an "absolute" pollution exclusion clause which provided, inter alia, that coverage was excluded for:
(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. . . .
Relying on the pollution exclusion, Nationwide brought an action against REO in the United States District Court for the District of Columbia, seeking a declaratory judgment that Nationwide was not required to defend or indemnify REO in connection with Ms. Richardson's suit. Ms. Richardson was permitted to intervene with respect to certain issues in Nationwide's action and, on July 26, 2000, the District Court granted summary judgment in favor of Nationwide, concluding that the pollution exclusion barred coverage as a matter of law. Nationwide Mut. Ins. Co. v. Nat'l REO Mgmt., Inc., 205 F.R.D. 1, 9-12 (D.D.C. 2000) (Nationwide I). Ms. Richardson appealed, and on November 2, 2001, the United States Court of Appeals, noting the importance of the issue presented and the lack of any dispositive District of Columbia precedent, certified the following question of law to this court pursuant to D.C. Code ยง 11-723 (2001):
In light of the facts set forth below, does the pollution exclusion clause apply to injuries arising from alleged carbon monoxide poisoning?
Nationwide
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