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Monticello Insurance Co. v. Baecher11/1/1996
y and customary meaning when they are susceptible of such construction." Graphic Arts Mutual Ins. v. C.W. Warthen Co., 240 Va. 457, 459, 397 S.E.2d 876, 877 (1990) (quoting Hill v. State Farm Mutual Auto Ins., 237 Va. 148, 152, 375 S.E.2d 727, 729 (1989)). In the absence of an ambiguity, we must interpret the insurance contract by examining the language contained therein. As we have stated, "where an agreement is complete on its face, is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself." Globe Co. v. Bank of Boston, 205 Va. 841, 848, 140 S.E.2d 629, 633 (1965) (citations omitted). Additionally, a word is ambiguous if it is susceptible of two or more meanings. Berry v. Klinger, 225 Va. 201, 207, 300 S.E.2d 792, 796 (1983).
Applying these principles, we are of opinion that the health hazard exclusion clause is enforceable and, therefore, Monticello has no obligation to defend or indemnify the estate for any claims arising out of the allegations contained in the underlying litigation. The word "utilization" is defined as "the action of utilizing or the state of being utilized." Webster's New International Dictionary 2525 (3rd ed. 1986). The word "utilize" means, "to make useful; turn to profitable account or use; make use of." Id. Contrary to the assertions of the estate and Conyer, the word "utilization" found in the exclusion is not ambiguous because within the context of the exclusion, "utilization" is not "susceptible of two or more meanings." In the underlying litigation, Conyer seeks to recover damages for injuries that Shanay incurred as a result of the ingestion of lead-based paint which was affixed to the walls of premises the estate owns. The plain language of the exclusion relieves Monticello of any obligation to pay any claim or provide a defense for any personal injury caused by the "ingestion . . . of, any substance . . . where the is or may be liable as a result of the . . . utilization . . . of such substance." It is true, as the estate asserts, that the lead-based paint was covered by paint which did not contain lead. This fact, however, does not render the exclusion unenforceable. We are of opinion that the estate continued to "make use of" the lead-based paint because the estate allowed that paint to remain on the walls of its leased premises.
Additionally, we find no merit in the estate's contention that the term "personal injury " is ambiguous. That term simply is not susceptible of two or more meanings within the context of the health hazard exclusion.
In view of the foregoing, we need not consider the litigants' remaining arguments. Accordingly, we will reverse the judgment of the trial court, and we will enter a judgment declaring that Monticello Insurance Company has no duty to defend and/or indemnify the estate of John Joseph Baecher against the claims of Louise Conyer and Shanay Hunter.
Reversed and final judgment.
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