331 Ga. App. 780
Ga. Ct. App.2015Background
- Amy Smith sued landlord Bobby Chupp alleging her daughter (born 2004) suffered permanent injuries from ingesting deteriorated lead-based paint in a rental house; testing in 2007 showed elevated blood lead levels and an investigator linked ingestion of paint chips/dust to the exposure.
- Chupp had a commercial general liability policy with Georgia Farm Bureau Mutual Insurance Co. (GFBM).
- GFBM filed a declaratory judgment action seeking a ruling that its policy’s pollution exclusion precluded coverage and defense for the lead-paint claims.
- The trial court granted summary judgment to GFBM; Smith and Chupp appealed.
- The policy covered bodily injury caused by an "occurrence" (including continuous/repeated exposure) but excluded bodily injury "arising out of" release/dispersal/etc. of "pollutants," defined broadly (e.g., "any solid, liquid, gaseous or thermal irritant or contaminant, including..." but not expressly listing lead or paint).
- The Court of Appeals reversed, holding the pollution exclusion did not unambiguously apply to bar coverage or GFBM’s duty to defend the lead-paint claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether injuries from lead-based paint ingestion are excluded by the policy's pollution exclusion | Smith: lead-based paint is not plainly a "pollutant" under the policy; exclusion ambiguous and must be construed for insured | GFBM: lead (and lead paint) fits the policy's broad definition of "pollutant" ("solid... contaminant, including...") so exclusion applies | Court: exclusion ambiguous as to lead-based paint; insurer must clearly exclude such risks — exclusion does not bar coverage |
| Whether the policy provides coverage for bodily injury from continuous/repeated exposure to lead paint | Smith: policy covers "occurrence" including continuous/repeated exposure causing bodily injury | GFBM: contends exclusion negates coverage despite occurrence language | Court: occurrence language applies and the allegations arguably bring claim within coverage |
| Duty to defend | Chupp/Smith: if complaint even arguably alleges covered claim, insurer must defend | GFBM: duty to defend excused because complaint falls outside coverage due to pollution exclusion | Court: duty to defend exists because complaint arguably alleges covered occurrence and exclusion is ambiguous |
| Whether insurer must expressly list specific pollutants (like lead) to invoke exclusion | Smith: insurer should have specifically excluded lead-based paint | GFBM/Concurrence: insurer need not list exact pollutant if policy language otherwise encompasses it | Court: majority says insurer should have specifically excluded lead-based paint here; concurrence disagrees with that rationale but concurs in judgment only |
Key Cases Cited
- Kerr-McGee Corp. v. Ga. Cas. & Surety Co., 256 Ga. App. 458 (pollution-exclusion language was too broad/uncertain to exclude coverage for release of certain substances)
- Sullins v. Allstate Ins. Co., 340 Md. 503 (terms "contaminants" and "pollutants" ambiguous; pollution exclusion not read to bar lead in private residence claims)
- Reed v. Auto-Owners Ins. Co., 284 Ga. 286 (carbon monoxide fell within pollution exclusion; pollution exclusion can encompass nontraditional environmental substances)