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Hi-Tech Engineering11/12/2002
UNPUBLISHED
Plaintiff Hi-Tech Engineering, Inc ("Hi-Tech") filed an action against defendant Paul S. Buiten ("Buiten") and his insurance agency alleging negligence and misrepresentation in selling a general liability policy issued by defendant Travelers Indemnity Company ("Travelers"). Hi- Tech also sought declaratory relief that the pollution exclusion in the policy did not preclude coverage for injuries caused to two employees of a Wisconsin corporation when a machine manufactured and sold by Hi-Tech failed, discharging a highly toxic chemical, toluene diisocyanate. Hi-Tech appeals from an order of summary disposition granted pursuant to MCR 2.116(C)(10) in favor of Travelers and Buiten. In this case, we hold that Travelers had no duty to defend Hi-Tech in the underlying product liability suit and affirm summary disposition granted to Travelers, Buiten and his agency.
A trial court's grant or denial of summary disposition is reviewed de novo on appeal. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). A motion for summary disposition based on MCR 2.116(C)(10) (except as to damages, there is no genuine issue as to any material fact and the moving party is entitled to partial or full judgment as a matter of law) must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Smith, supra at 454. The moving party must specifically identify the undisputed factual issues, MCR 2.116(G)(4), and has the initial burden of supporting its position with documentary evidence, Smith, supra at 455. The trial court must consider the submitted documentary evidence in the light most favorable to the nonmoving party. Id. at 454. If the moving party fulfills its initial burden, the party opposing the motion then must demonstrate with evidentiary materials that a genuine material issue of disputed fact exists, and upon failure to do so, summary disposition is properly granted. Id. at 455.
Hi-Tech first argues that the pollution exclusion did not apply to the injured employees' claims. In a related garnishment action initiated by the injured employees against Travelers, this Court has already decided that the pollution exclusion in the Travelers policy excluded coverage. McKusick v Travelers Indemnity Co, 246 Mich App 329; 632 NW2d 525 (2001). In fact, all of Hi-Tech's arguments, except one, concerning Travelers have already been decided by this Court in McKusick, supra, which is controlling authority in the instant appeal pursuant to MCR 7.215(I)(1). Therefore, we will only address the issue which the McKusick Court did not decide.
In McKusick, the Court found that the one undecided issue, whether Travelers breached its duty to defend Hi-Tech, was not preserved for appeal, nor was its resolution necessary to the disposition of the garnishment action. McKusick, supra at 341. In this case, however, Hi-Tech raised this issue below. The trial court decided as follows:
Plaintiff also asserts that even if coverage does not extend to these claims, the duty to defend does. We disagree.
While the exclusion may not list, as plaintiff asserts, failure to warn, we believe we must look to the essential nature of the claims. Illinois Employers Insurance v Dragovich, 139 Mich App 502, 507; [362 NW2d 767] (1984). However, it is characterized in these complaints against plaintiff, Hi-Tech, the claims are personal injury actions for bodily injury caused by pollutants escaping or, as the policy says, arising from Hi-Tech's product. That is what is excluded from coverage.
The duty of an insurance company to defend its insured in a tort action depends upon the allegations in the complaint and arises w
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