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Richardson v. Nationwide Mutual Insurance Company6/12/2003
n exclusion - for instance, by mistakenly claiming that " lmost any mishap at an apartment complex" could be denied coverage, and by quoting one court's alarmist view that the insurance policy would be rendered "virtually meaningless" to the insured. Id. The majority seems to be suggesting that even if the exclusion unambiguously does cover indoor air pollution claims, it should be interpreted not to do so in order to satisfy the reasonable coverage expectations of persons who purchase general liability insurance without reading the exclusion. Indeed, this "reasonable expectations" doctrine is the explicit premise of many of the cases on which the majority relies. See, e.g., Regional Bank of Colo. v. St. Paul Fire & Marine Ins. Co., 35 F.3d 494, 497-98 (10th Cir. 1994) (invoking reasonable expectations doctrine of Colorado law to find insurance coverage for injuries caused by exposure to carbon monoxide from a faulty heater, "regardless of whether or not" the pollution exclusion in the policy was ambiguous).
Past cases of this court have squarely rejected this interpretation of "the doctrine of reasonable expectations." See Chase, 780 A.2d at 1131-32; Smalls v. State Farm Mut. Auto. Ins. Co., 678 A.2d 32, 35 (D.C. 1996). As we held in those cases, while ambiguous policy provisions may be construed in a manner "consistent with the reasonable expectations of the purchaser of the policy," unambiguous provisions will be "enforced . . . as written, so long as they do not violate a statute or public policy." Chase, 780 A.2d at 1131-32 (quoting Smalls, 678 A.2d at 35; citation and internal quotation marks omitted). Where "the . . . exclusion . . . is clear and unambiguous . . . . there is no
legal basis for considering whether it was consistent with [the policyholder's] reasonable expectations." Smalls, 678 A.2d at 35. " he reasonable expectations doctrine is not a mandate for courts to rewrite insurance policies and reallocate their assignment of risks between insurer and insured." Chase, 780 A.2d at 1132.
III.
I dissent because the majority opinion disregards or misapplies settled legal principles and conflicts with controlling precedent. Instead of construing the absolute pollution exclusion according to the plain meaning of its terms, the majority unjustifiably embraces a technical and forced construction, thereby finding ambiguity where none exists. The majority compounds this error by resorting improperly to extrinsic evidence to qualify unambiguous policy language, by engaging in dubious appellate fact finding on a deficient record, and by misreading the history that we have. Finally, the majority wrongly exalts policyholders' uninformed expectations of insurance coverage over the clear language of an exclusion from that coverage. By doing these things, the majority thwarts the purpose and overrides the meaning of the clause.
I would abide by the governing legal principles that the majority disregards. I would accord paramount importance to the text of the absolute pollution exclusion. I would follow common usage and read the exclusion as it is written. I would not try to reconstruct the history of the exclusion to restrict its meaning or second-guess the insurance regulators who approved the exclusion as it is. I would hold that the absolute pollution exclusion unambiguously precludes insurance coverage for indoor air pollution claims such as the one Ms. Richardson has presented.
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