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Aetna Insurance Co. v. Aaron12/4/1996
more costly than the preventative measure. Id. Therefore, we do not ground our holding on the basis that, if left unattended, the hazardous condition on the insured's property would inevitably result in serious damage to the property of another, for which the insurer probably would be liable.
We are, however, mindful that sound public policy considerations support findings of coverage in the special context of environmental pollution cases. See, e.g., South Carolina Ins. Co. v. Coody, 813 F. Supp. 1570, 1578 (M.D.Ga. 1993); Patz v. St. Paul Fire & Marine Ins. Co., 817 F. Supp. 781, 784 (E.D.Wis. 1993) ("the area of environmental damage presents unique questions for insurance coverage because there is always the potential that contamination will spread. As a policy matter, it is more desirable to take remedial action as soon as possible, rather than waiting until off-site environmental harm has occurred."), aff'd, 15 F.3d 699 (7th Cir. 1994); Quinn, 713 F. Supp. at 41 (observing that environmental pollution cases are "unique").
Polkow v. Citizens Ins. Co. of America, 180 Mich. App. 651, 447 N.W.2d 853 (Mich. App. 1989), rev. on other grounds, 438 Mich. 174, 476 N.W.2d 382 (Mich. 1989) is instructive. The court determined that the owned property exclusion was inapplicable because of a broad government interest in protecting the environment. Recognizing that the alleged pollution fell outside of the policy exclusion for damage to an insured's property, the court said that the allegations "are essentially for injury to the public interest in the well-being of the environment and natural resources of this state." Polkow, 180 Mich. App. at 659, 447 N.W.2d at 857.
Similarly, in Bankers Trust Co., 518 F. Supp. at 374, the court observed that, if the owned property exclusion applied, an insured would continue to pollute, "causing further social damage and damage to third parties, and ironically costing even [the insurance company] more money." It determined that the imminent danger to property of another constitutes damage within the meaning of the insurance policy. Id.
We are unpersuaded that the special considerations applicable to environmental cases render the underlying bases of those decisions invalid here. As we see it, an owned property exclusion does not necessarily bar coverage of a claim for remediation expenses. Whether the Policy here ultimately will provide coverage necessarily depends on a resolution of various factual questions, including the following: 1) Did the third party property actually suffer damage that was caused by property defects or hazards on the insured's property? 2) Were the repairs to the insured's property necessary to prevent imminent, additional damage to the third party property? 3) To what extent, if any, did the cost of repairs relate to repairs solely for the benefit of the insured's property?
As we have noted, the Council's suit alleged that the condominium and St. Clair sustained third-party property damage due to defects in the Glass Enclosure, and that the repairs were necessary to prevent imminent and further damage to that property. The suit also alleges that the Council incurred costs of $97,000 to repair Aaron's property. We are satisfied that the trial court's order fairly outlines the basis on which Aetna may be liable to Aaron.
VII.
The trial court determined that the costs of investigation constitute a category of damage for which Aetna is responsible. Under certain circumstances, an insured may be liable for the costs of investigation and, if so, the insurer may be required to indemnify its insured for such expenses. At this juncture, we express no opinion on the merits of the c
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