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GREENVILLE CO. v. INSURANCE RESERVE FUND3/1/1993
Appellant The Insurance Reserve Fund (Fund) appeals from an order granting summary judgment in favor of the Respondent Greenville County (County) and ordering it to defend certain lawsuits brought against the County. We reverse and remand.
The County was sued by ten area landowners on November 7, 1990 for inverse condemnation of land. The complaints alleged that the County operated a landfill in Simpsonville from the 1960s to 1972 at which hazardous chemicals were dumped. As a result of this dumping, the complainants allege a contamination of property which equals a taking of property without just compensation and damages therefrom. The complaints do not contain any allegations of when contamination began, was discovered, or that it was sudden and accidental. Although the complaints contain other causes of action against other entities, this is the only cause of action brought against the County.
Upon service of these complaints on the County, it tendered them to the Fund and requested defense of these suits under the County's Tort Liability Insurance policy (policy). The Fund denied both a duty to defend and coverage of the claims. The County then brought this declaratory judgment action to determine the parties' rights and obligation under the policy in connection with the ten underlying suits. The Fund answered and counterclaimed requesting an order that it had no duty to defend or indemnify the tendered suits.
Upon cross motions for summary judgment, Judge Frank McGowan held that the Fund had a duty to defend on the ground of res judicata. He further found that the Tort Claims Act and the provisions of the policy indicated a possibility of coverage and also required the Fund to defend. He did not reach the issue of indemnification as the parties had stipulated on oral argument that this issue would be held in abeyance. The Fund appealed. We find that the Fund does not have a duty to defend the underlying ten suits and reverse the order of the lower court.
I. Res Judicata
The lower court found the Fund to have a duty to defend the County on the ground of res judicata. The basis of this holding was a judgment obtained by the County in a declaratory judgment action in April 1990. That
At that time, five other Greenville County property owners sued the County alleging inverse condemnation, breach of covenant and breach of contract. Four of the suits asserted the inverse condemnation was the result of the operation of the Putnam landfill after 1972 without a permit and dumping at the landfill of hazardous chemicals. This landfill was subsequently covered, houses were built on the property and wells were dug. In July and August 1989, the property owners were notified by federal and state authorities that their water was contaminated. They subsequently discovered the soil beneath and around their residences was also contaminated.
The fifth suit also alleged inverse condemnation because of contamination from a landfill located at Bessie Road and requested indemnification for liability which may result therefrom. The property which the landfill occupied had been leased from the complainant. The complainant refused to accept redelivery of the property because of the contamination and any resulting liability.
The County tendered the defense of the 1989 suits to the Fund which refused coverage. A declaratory judgment action was brought and the County moved for summary judgment as to the duty to defend. The court granted the County's motion finding a possibility of coverage of those suits under the policy but did not decide the Fund's duty to indemnify.
The County would have this Court find that because the parties in
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