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Durham v. Bituminous Casualty Corp.2/7/2003
ion or pollution hazard" to include the type of property damage mentioned but is not to be limited to it. Had BCC intended to limit the coverage to that language, it appears to us that it would have used the words"limited to" rather than "includes." Even if this language is arguably not as clear and unambiguous as we believe it to be, but rather is ambiguous and subject to more than one interpretation, then the interpretation given should favor the insured rather than the insurer. See Martinez, supra. At any rate, whether the language is clear and unambiguous as we believe it to be or whether it is merely ambiguous, we cannot conclude that the trial court's interpretation was correct. Thus, we conclude that the trial court erred in this regard and that this portion of the judgment should be reversed.
BCC also argues that this court should hold that there is no coverage under the policy because it expressly excluded coverage for injuries and damages that were intended or expected. They assert that the Durhams expected the gases to be released from the oil wells. Further, they note the policy provision which states that the policy does not apply to A:bodily injury " or "property damage" expected or intended from the standpoint of the insured."
While it may be apparent that the insured individuals expected the oil wells to emit noxious gases during their operation, there is no indication that the insured individuals expected bodily injury or property damage to result. Further, the record does not reveal evidence supporting a conclusion that one should necessarily expect injuries and damages when these gases are present. Therefore, we conclude that this exclusion is not applicable to this case.
The remaining issue concerns whether there was coverage for the remaining claims of the appellants. The trial court stated that the appellants were seeking additional claims for "bodily injury " and that their claims did not fall within the definition of"personal injury." It is apparent that the pollution exclusion excludes coverage for bodily injury resulting from pollutants. Since the"CONTAMINATION OR POLLUTION COVERAGE"endorsement related only to property damage, the exclusion as to bodily injury still applied. Thus, there was no coverage of any of the appellants' remaining claims to the extent they asserted claims for bodily injury. Since the appellants have not challenged the trial court's characterization of their remaining claims as bodily injury claims rather than personal injury claims, we affirm this portion of the trial court's judgment.
Based on the foregoing, the judgment of the Clinton Circuit Court is affirmed in part and reversed in part.
ALL CONCUR.
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