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Richardson v. Nationwide Mutual Insurance Company6/12/2003
an exclusion." Cameron, 733 A.2d at 969 (citing Lang v. F.G. Arwood & Co., 65 A.2d 194, 196 (1949) and New York Life Ins. Co. v. Miller, 65 App. D.C. 129, 134, 81 F.2d 263, 268 (1935)). Moreover,
n this jurisdiction, as elsewhere, it has long been "a general rule of construction of policies of insurance . . . that any reasonable doubt which may arise as to the meaning or intent of a condition thereof, will be resolved against the insurer." United States Mut. Accident Ass'n of the City of New York v. Hodgkin, 4 App. D.C. 516, 523 (1894), error dismissed, 17 S. Ct. 1002 (1897). " t is the insurer's duty to spell out in plainest terms - terms understandable to the man in the street -any exclusionary or delimiting policy provisions." Holt v. George Washington Life Ins. Co., 123 A.2d 619, 621 (D.C. 1956) (citation omitted). "Failing such unambiguous language, doubt should be resolved in favor of the insured." Id. at 622 (citation omitted). "The rule that a real ambiguity in an insurance policy is to be construed against the company is not a rule of convenience or a mere technicality of legalists." Hayes v. Home Life Ins. Co., 83 U.S. App. D.C. 110, 112, 168 F.2d 152, 154 (1948) (Prettyman, J.). On the contrary, this rule is based on sound public policy, for the contracts in question are written by the insurers.
Cameron, 735 A.2d at 968. In recognition of these realities, ambiguities in an insurance policy are construed against the insurer and in favor of "the reasonable expectations of the purchaser of the policy." Chase, 780 A.2d at 1127 (citation omitted).
Finally, we must "examine the language of the polic and construe it as a whole." Kent Farms, 998 P.2d at 294 (citation omitted). "Put another way, we are required to view the exclusion in light of the whole policy to determine whether, in that context, the exclusion applies." Id. at 295. To that end, we must "examin what the exclusion and similar exclusions are intended to accomplish." Id.
C. The use of terminology mirroring the purpose of the exclusion.
The absolute pollution exclusion in REO's policy is entitled "Pollution," and it excludes bodily injury arising out of the "actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants." "Pollutants" include any solid, liquid, gaseous or thermal "irritant or contaminant," including "smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." The eight enumerated pollutants collectively bring to mind byproducts of industrial pollution, Western Alliance, 686 N.E.2d at 999, rather than carbon monoxide from a furnace in an apartment house or a stove in a restaurant. In light of the circumstances that generated the adoption of the absolute pollution exclusion, it is hardly astonishing that the word "waste" is used five times in the clause in question, that the words "clean up" or "cleaning up" are used three times, and that many other phrases in the clause are obviously focused on subjects similar to the cleanup of waste sites. Thus, when one reads the entire clause, rather than limiting oneself to the word "fumes" in isolation, one cannot reasonably avoid the impression that the revised exclusion has to do with the byproducts of the manufacturing process and with massive environmental cleanup costs, the very concerns that, as a matter of undisputed history, led to the adoption of the new language. Ms. Richardson argues that the exclusion contains terms of art in environmental law, that those who wrote it had environmental provisions in mind, and that the clause in question thus refers to pollution by environmental polluters. At the very least, according to Ms. Richardson, the use of this terminology create
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