Durham v. Bituminous Casualty Corp.2/7/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING IN PART AND REVERSING IN PART
Tilmond Durham, Terrill Durham, and Walter Powell III, d/b/a DP Enterprises; Ima Ruth Thrasher, individually and as executrix of the estate of Howard Thrasher; Barry Douglas Thrasher and Ima Ruth Thrasher as executors of the estate of Reba Cooper; and Sallie B. Thrasher, appeal the Clinton Circuit Court's summary judgment in favor of Bituminous Casualty Corporation (BCC). The court concluded that BCC did not insure Tilmond Durham, Terrill Durham, and Walter Powell III, d/b/a DP Enterprises, against damages arising from the flow of noxious fumes from their oil wells onto and around the property of others. This appeal followed.
On November 13, 1993, Alvis Howard Thrasher, who is now deceased, Ima Ruth Thrasher, Barry Douglas Thrasher, Reba Cooper, who is now deceased, and Sallie B. Thrasher filed a civil complaint in the Clinton Circuit Court against Tilmond Durham, Terrill Durham, Walter Powell III, d/b/a DP Enterprises and Robo Enterprises, Inc. The plaintiffs alleged that the defendants allowed noxious fumes from the oil wells they operated to go onto the plaintiffs' land. They presented claims for negligence, negligence per se, failure to warn, strict liability, outrageous conduct, nuisance, and trespass.
Appellee BCC intervened in the circuit court action. It sought declaratory relief to the effect that the"Commercial Lines Policy" of insurance it issued to DP Enterprises did not cover any damages arising from the type of pollution or contamination alleged by the plaintiffs. After discovery, BCC moved for summary judgment. Initially, the trial court denied the motion, but it later granted it, concluding that the policy was not ambiguous and did not cover the damages claimed by the plaintiffs. After the court denied a motion to reconsider and ruled that the summary judgment was final and appealable, Tilmond Durham, Terrill Durham, and Walter Powell III, d/b/a DP Enterprises; Ima Ruth Thrasher, individually and as executrix of the estate of Howard Thrasher; Barry Douglas Thrasher and Ima Ruth Thrasher as executors of the estate of Reba Cooper; and Sallie B. Thrasher appealed.
The appellants do not challenge the trial court's conclusion that no genuine issue of material fact existed. Instead, they challenge the court's application of the law to the facts. Specifically, they argue that the trial court erroneously interpreted the insurance policy between DP Enterprises, the Durhams, and BCC.
Summary judgment is proper when no genuine issue of material fact exists and when the movant is entitled to judgment as a matter of law. CR 56.03. See also Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991). In the case sub judice, no genuine issue of material fact existed. Rather, the trial court interpreted an insurance contract and determined that the movant was entitled to judgment as a matter of law."The interpretation and construction of an insurance contract is a matter of law for the court." Kemper Nat. Ins. Cos. v. Heaven Hill Distilleries, Ky., 82 S.W.3d 869, 871 (2002). The standard of review is de novo.
Insurance contracts should be interpreted and enforced according to the language chosen by the parties. Nationwide Mut. Ins. Co. v. Nolan, Ky., 10 S.W.3d 129, 131 (1999). However, when the chosen language creates an ambiguity, the court properly resorts to rules of construction. Meyers v. Kentucky Medical Ins. Co., Ky. App., 982 S.W.2d 203, 209-210 (1997). Among these is the rule that the reasonable expectation of the insured should be favored, see Philadelphia Indemnity Ins. Co. v. Morris, Ky., 990 S.W.2d 621, 625 (1999), and th
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