*1
hаd reason
and the officers
apartment
in the
Thus, if Brown lived
pursuant
the residence
there,
entered
they properly
he was
to believe
right
and the
to seize
warrant,
them access to
giving
to the arrest
Brannan,
(2) (b);
Under the law of suppress to in the context of analyze the State’s motion to refusing trial court err in to arrest. Neither did the search incident immediate seizure of authorizing circumstances exigent find however, shows, that further factual determi- marijuana. The record rather than required. Accordingly, are nations the trial court reason as ruling wrong for reversing suppression the trial court’s for further does, ruling I vacate such and remand would State, Atkins v. opinion. consistent with this proceedings Brown, State v. (331 597) (1985); Ga. 628) (2004). Judge Barnes and Judge I am authorized to state that Chief join Adams this dissent. July 16, 2007.
Decided Sheltоn, Solicitor-General, Guest, K. Assis- Richard W. Sandra Solicitor-General, tant appellant. for Holt, Holt, & John D.
Fulp appellee. REED A07A0338. AUTO-OWNERS INSURANCE COMPANY v. et al.
(649 SE2d Presiding Judge. Andrews, declaratory judg- filed this Company
Auto-Owners Insurance monoxide contending ment action that Lessie Reed’s claim of carbon landlord, against Waldrop, her C. Melvin is excluded from poisoning Waldrop’s general liability (“CGL”) policy. under commercial coverage summary judgment denied motion for The trial court Auto-Owners’ granted application interlocutory appeal. and we Auto-Owners’ follow, For the reasons that we reverse.
Summary proper judgment genuine is when there is no issue of judgment material fact and movant is entitled to as a matter of (c). § law. 9-11-56 We a de standard OCGA novo of review and light view the evidence in the most favorable the nonmovant. *2 Matjoulis Integon Corp., (1) (486 Gen. Ins. 684) (1997). viewed,
So the record shows that Auto-Owners issued a CGL policy Waldrop applicable policyperiod January 12,2002 an with of through January complaint alleging 12, 2003. Reed filed a that on poisoning 27, 2002, December she suffered carbon monoxide inside Waldrop keep the home she rented from premises as a result ofhis failure to repair Waldrop provided and free from defects. After began defеnding Auto-Owners, notice of the claim to the insurer Waldrop rights. under a reservation
Waldrop’s policy provided pertinent part: pay legally We will those sums that the insured becomes obligated pay damages “bodily injury” because of “property damage” applies. to which this insurance . . . 2. Exclusions.
This insurance does not . to: . . (1) “Bodily injury” “property damage” arising out of the alleged discharge, dispersal, seepage, actual, or threatened migration, escape pollutants: release or (a) any premises, At or from site or location which is or was any occupied by, any at time owned or to, or rented or loaned insured. . . . any liquid, gaseous solid,
Pollutants means or thermal including vapor, contaminant, smoke, irritant or soot, fumes, acids, alkalis, chemicals and waste. Waste includes materi- recycled, als to be reconditioned or reclaimed. damages
Auto-Owners contends that Reed seeks are ex- unambiguous Waldrop’s policy cluded under the terms of because following (1) alleges Reed’s claim satisfies all of the conditions: she discharge, dispersal, that her arose from the or release of (2) alleges discharge, dispersal, monoxide; carbon she that the Waldrop property owned; аnd occurred monoxide of carbon release policy. in the (3) as defined is a carbon monoxide Waldrop were conditions the first two that conceded Reed and appeal They argued the breadth now on below and satisfied. ambigu- renders the definition ous. explanation, mo- denied Auto-Owners’ court, without trial
The appeal judgment. summary followed. This tion for policies insurance, other as in all used in The words significance, and and common contracts, bear their usual contracts, policies to be are, inas all other of insurance unambiguous policy, ordinary meaning. An in their construed plain requires terms must construction, and its here, no though they given to an are beneficial even be full effect natural, obvious to the insured. and detrimental insurer any preferred policy provision meaning over is to of a nothing exigency meaning but the curious, hidden which ingenuity mind of a trained and acute a hard case and discover. would *3 Ranger omitted.) punctuation
(Citations Co. v. Truitt Oil & Gas and 572) (1998). App. (498 89, SE2d Co., 90 Ins. resulting coverage policy for in this case excludes escape dispersal, seepage, migration, “discharge, release or
from liquid, gaseous “any pollutants” solid, or thermal defined as including contaminant,” Reed’s claim is that she “fumes.” irritant or injured by discharge monoxide at the insured of carbon been has dispute property. is a fume and a that carbon monoxide There is no clearly gaseous Therefore, it falls within irritant or contaminant. policy exclusion.
Although, that discusses, there are some states the dissent already contrary, decided in issue has been to the this have found persuasive. Georgia not case law is and therefore other state’s (455 App. Zippro Co., 499 Constr. Ins. Co. v. American States 133) (1995), asbestos became contaminated after the home flooring The construc- into the air. were released fibers in the kitchen thereby causing company floors, the asbestos to that sanded the tion “pollution by policy a home, insured a with into the was be released provision The court held the one in this case. identical to exclusion” pollutant question that asbestos constitutes is little “[t]here that unambiguously exclusion.” Id. at 501. defined in the not an environ States case was in the American
The asbestos completely pollutant; and is inside the house contained was mental Accordingly, indistinguishable case. monoxide this from the carbon 606 holding. that See also Perkins Hardwood Lumber Co.
we are bound Corp., 231, 190 232 v. Bituminous Cas. (1989) (no ambiguity Ga. pollution exclusion); scope
as to Truitt Oil & policy supra (pollutiоn Gas, exclusion in insurance is not at 90-91 ambiguous).1 Georgia point, not
Because there is law on we need look to other points law; however, out, as the dissent there are numer state’s case holding jurisdictions agree with the in American States. ous See, which e.g., Diamond, Co., v. Penn. Nat. A2d Matcon Inc. Ins. 815 1109 (Pa. 2003) (carbon Super. Ct. monoxide fumes released inside store pollutant purposes pollution policy); were exclusion insurance Co., Farm &c. 711 Deni Assoc. Florida v. State Fire Ins. S2d 1135 (Fla. 1998) (pollution unambiguous exclusion is not does only pollutants); to environmental Bernhardt v. Fire Ins. Hartford (Md. App. 1994) (pollution applies A2d 648 1047 exclusion injury building); League due to carbon monoxide in claim for Minn. City Rapids, (Minn. App. Cities Trust v. Coon 446 419 NW2d 1989) (coverage properly pollution pro denied under was exclusion nitrogen vision after dioxide was into ice released arena from Zam boni); S.p.A. (4th Generali, Neil, Assicurazioni 160 F3d 1998) (pollution coverage injury Cir. exclusion barred to hotel guests monoxide); after release of carbon Reliance Ins. Co. v. Moess (3d 1997) (carbon poisoning ner, 121 F3d monoxide fell pollution exclusion); Longaberger Fidelity under the Co. v. U. S. & Guaranty FSupp.2d (S.D. 1998) (carbon Ohio mon oxide released home into from furnace was a and came policy); under exclusion WestAmerican Ins. Co. v. Band Desenberg, FSupp. (M.D. 1996) (rejecting argument & Fla. ambiguous holding exclusion is that the applied dispersal building’s of contaminant from attic building’s airspace); Corp., FSupp. into Essex Ins. Co.v. Tri-Town (D. 1994) (discharge 38 Mass. of carbon monoxide from malfunction ing pollution exclusion). Zamboni falls within
Accordingly, above, for the reasons discussed we conclude that *4 denying American in States controls this case. The trial court erred in summary judgment. Auto-Owners’ motion for Judgment Phipps, Blackburn, J., Adams, reversed. P. Mikell and Ellington, JJ., Johnson, J., J., P. concur. dissent. 1 Reed, Corp. Surety Co., App. (568 relies on Kerr-McGee v. Ga. Cas. & 256 Ga. 458 SE2d 484) (2002), authority argument pollution as for hеr that the exclusion does in not this but, cases, inapposite; contrary
instance. Kerr-McGeeis that in the to the extent that it is to the above-cited opinion authority one-judge opinion judges joining cannot stand as because it is a with two judgment only precedential and therefore has no value.
607 Judge, dissenting. ELLINGTON, denying the Auto-Owners’ I would affirm trial court’s order respectfully summary judgment, therefore, and, I dissent. motion for ambigu majority ignores precept the that a contract is The basic susceptible construction.2 It ous if it is of more than one reasonable pollution seriously be doubted that the absolute exclusion cаnnot coverage3 upon based its denial of can reason which Auto-Owners (1) including ably interpreted ways, is, in at least two that either as be any potentially irritating (2) being substance, limited to what is pollution. commonly traditionally considered environmental In interpreted ways by deed, federal this exclusion has been these two appellate country. Compare cited in and state courts across the cases (b), with the cases collected in note 7 and section infra. Contrary majority’s opinion, already had this issue not Georgia. fact, been decided in this is the first time we have been presented question with the exаct of whether the ambiguous at issue is because defines terms that can reasonably interpreted way—either including in more than one virtually any including only substance or chemical in or as existence pollution. by majority, result, environmental As a the cases cited generally in which this Court stated the absolute ambiguous,4 exclusion is not do not control our decision in this case. “any pollutants irritant” definition of be read in the should context of the full text of the exclusion and the context of the purpose provision and the historical evolution ofthe text of the only standard exclusion. The defensible conclusion is that thе exclu apply only injury damage sion at issue was intended to caused commonly pollution.5 Because, what is considered environmental majority demonstrates, as the so the exclusion can also be read without limiting pollutants, patently the definition of the exclusion is ambiguous.
American States Ins. Co. v.
Perkins Hardwood Lumber Co. v.Bituminous Cas.
rules of contract
more
not into the outside
exclusions
Superfund
ambiguous,
CGL
(2002) (physical precedent
[2]
policy provided coverage
constructions,
Hurst v.
See section
See Truitt Oil & Gas Co. v.
See section
Kerr-McGee
is
and the
“to
gradual
construction,
bar
(a),
Grange
(c),
statutory
еnvironment)
even when the
infra,
coverage responsibility
infra,
Corp.
Mut. Cas.
only)
Zippro
for the full text of the exclusion.
Ranger
for a detailed discussion of these cases.
for a release of titanium tetrachloride within a chemical
rules of contract construction
“if a
Ga. Cas.
(absolute
(citations omitted).
provision
Constr.
multiple
Co.,
266 Ga.
&
Co.,
Surety
constructions
231 Ga.
of an insurance contract
216 Ga.
712,
Corp.,
government-mandated
exclusion is
any type”;
App.
See also section
App.
(4)
bewill
are all
(470
construed
ambiguous;
App.
(1) (b) (498
SE2d
applied.”) (citation omitted).
logical
231, 232
(455
is
(d),
659) (1996) (Under
susceptible
against
clеanup
infra.
SE2d
reasonable,
purpose
(
Because the exclusion issue the the rules of construction.6 When exclusion is relevant resulting “pollut insured, in of the in a definition of construed favor traditionally commonly or considered ants” that is limited to what is carry pollution, I believe that Auto-Owners failed to denying coverage showing burden an insurer of that Reed’s its nothing alleged damages is, the exclusion. That because in fell within suggests the carbon monoxide Reed inhaled had record escaped her residence or otherwise met the definition of an environ pollutant, alleged mental damages Auto-Owners failed to establish that Reed’s discharge, dispersal from the or release an
arose of envi pollutant. ronmental Georgia addition, law, under insurance contracts are to be expectations in
read
accordance with the reasonable
of the insured
possible.7 I
jurisdictions
find,
where
would
a
other
of
have
person
done, that a reasonable business
would understand that an
originates
accidental carbon monoxide leak that
and remains con
property
fined within the insured
be
would
covered under the stan
policy.8
Georgia’s
Otherwise,
dard CGL
insurers are left free to sell
6
13-2-2;
Co.,
(1) (299
Richards v. Hanover Ins.
SE2d
OCGA §
(1983) (these apply
“[a]ny ambiguities
in the construction ofinsurance contracts:
in the contract
strictly
against
document; any
are
construed
the insurer as drafter of the
from
exclusion
coverage sought
by
strictly construed;
to be invoked
the insurer is likewise
and insurance
expectations
contracts are to be read in accordance with the reasonable
of the insured where
Co.,
possible”) (citations omitted);
App. 479, 480 (398
Alewine v.Horace Mann Ins.
Ga.
756) (1990) (“If
language
ambiguous,
policy
against
is
an insurance
will be construed
party preparing
coverage.”) (citation omitted);
favor of
Prudential Ins. Co. America
of
South,
653, 655 (
(b)
any premises,
At or from
any
site or location which is or was
by
any
time used
or for
insured or others for the
handling, storage, disposal, processing
waste;
or treatment of
transported,
(c)
any
handled,
are or were at
time
Which
disposed
processed
by
stored, treated,
of, or
or for
waste
may
any
any person
organization
you
insured or
or
for whom
legally responsible;
or
American States Ins. Co. v.
App. 1996) (carbon
Koloms,
business
residence
tandoori
inside a commercial
NE2d
a multi-unit
and
(i) if the are on or to the opera- ises, site or location in connеction with such insured, subcontractor; tions such contractor or or
(ii) operations for, monitor, if the are to test clean up, detoxify remove, contain, treat, neutralize, any way respond pol- to, or assess effects of lutants.
Subparagraphs (a) (d) (i) “bodily injury” do not “property damage” arising heat, out of smoke or fumes from a hostile fire. exclusion,
As used in this a hostile fire means one which becomes uncontrollable or breaks out from where was intended be.
(2)Any expense arising any: loss, cost or out of
(a) Request, any demand or order that insured or up, for, monitor, remove, contain, others test clean detoxify any way respond treat, neutralizе, or in or pollutants; to, or assess the effects of or (b) by governmental Claim or suit or on behalf of a authority testing from, because of monitoring, cleaning up, removing, containing, treat- ing, detoxifying neutralizing, any way or or in responding assessing pollutants. to, the effects of any liquid, gaseous solid, Pollutants means or thermal including vapor, contaminant, smoke, soot, fumes, irritant or acids, alkalis, chemicals and waste. Waste includes materi- recycled, als to be reconditioned or reclaimed. susceptible b. The exclusion is more than one reasonable By key reading pollution
construction. terms of the absolute isolation, does, in exclusion as the the exclusion can be interpreted apply injury damage by any to to caused substance or chemical existence. This is because the terms “irritant” and “contaminant” ordinary interpretation,
admit of no natural or . . . because they it is unclear whether refer to substances ordi- which narily contaminate, irritate or substances which have in fact particular irritated or contaminated under these circum- regardless tendency stances, of their to irritate or contami- [AJny circumstances, nate under most or both.... substance conceivably could be an “irritant or contаminant” under the right circumstances.
(Citations punctuation emphasis supplied.) Regent omitted; FSupp. (II) (D. 1993) (applying Holmes, v.Co. Kan. law).10 Kansas given
If, hand, on the other the word is its usual connotation, if and the terms “irritant” and “contaminant” are read they policy, describing is, the context of how are used “pollutants,” interpreted the absolute exclusion can be apply only injury damage commonly caused what is consid pollution. Regional ered environmental Bank Colorado v. St. Paul (10th 1994). Fire and Marine Ins. 35 F3d “Because phrase ‘any the definitional irritant or contaminant’ is too broad to meaningfully ‘pollutant,’ define [courts] must turn to the common meaning connotative of that term.” MacKinnon v. Truck Ins. Ex change, (II) (D) (Cal. 2003). 1205, 1216 73 P3d The usual connotation “pollutant” of the term is of “a substance that is harmful or toxic to persons generally.” (Citation omitted.) Regent or the environment FSupp. (where spilled Holmes, Ins. Co. v. bottle of formic acid inside her at 582 a child a small
residence,
the absolute
irritating liquid
exclusion did not
because the release of the
injury
person
“resulted in the severe but discrete
of one
and inflicted
injury
environment”).
application
no discernable
Thus,
on the
depends
particular
on whether the
release that is
Pennsylvania
Pittsburg,
Exchange,
Motorists Mut.
27,
“[e]ould
“substance or chemical in
(applying
(2000) (accord).
30-31
See also
extend far
Colorado
(1st
[768]
73 P3d
FSupp. 1463, 1470 (D.
Nat. Mut. Cas. Ins. Co. v.
Cir.
Regional
Ins. Co.
1205, 1211
beyond
law) (the
1999)
Bank Colorado v. St. Paul Fire and Marine Ins.
existence”) (punctuation
(applying
[the]
RSJ, Inc.,
terms “irritant” and “contaminant” are
(Cal. 2003) (accord);
*8
of
intended
Maine
Kan.
c. Cases relied
by
proposition
controlling Georgia
that, under
for the
injury
damage
any
coverage
law,
regardless
is excluded for
from
contaminant
pollutant
is Perkins
of whether
is an environmental
Corp.,
Lumber Co. v. Bituminous Cas.
Hardwood
407) (1989).
case,
In that
smoke from a “non-hostile” wood
nearby roadway and caused a multi-vehicle wreck.
fire covered a
We
plaintiffs’
exception
did
held that the
claims
not fall within an
to the
subpart (1) (d),
provided
absolute
“heat, smoke or fumes from a hostile fire.” Id. at 232. We did not
from
City
768 FSupp.
(“Pollution
Pittsburg,
Fire Ins. Co. v.
n. 9
also Westchester
or,
least,
appear
contemplаte long-term
degradation
very
clauses
at the
an
exposure
extremely
substances.”).
environment-wide
hazardous or toxic
12 See, e.g.,
Heritage Dictionary
English Language (4th
The American
ed.
“[s]omething
pollutes, especially
(“pollutant” means
a waste material that contaminates
air, soil, water”; “pollution”
process
polluting
being
means
act or
or the
state
“[t]he
soil, water,
polluted, especially
atmosphere by
discharge
the contamination of
or the
substances”);
Heritage
Dictionary (2002) (“pollution”
harmful
The American
Science
means
air, water,
living organisms”).
contamination of
or soil
substances that are harmful to
“[t]he
monoxide,
jurisdictions
I note that some of the other
that have ruled that carbon
even
building,
pollutant
within a
or other
is a
within the terms of the
when confined
residence
reluctantly
expressed
resulting
done
and have
concern about the
breadth of
exclusion have
so
(Md. App. 1994)
Bernhardt v.
Fire
648 A2d
the exclusion. See
Hartford
application
sweeps away
(noting
broad in its
that it
that the absolute
exclusion was “so
coverage
beyond
might
required
industry’s
well
that which
to meet
the [insurance]
(Md. 1995)
dismissed,
(Md.
legitimate aims”),
granted,
cert.
Ins. Co. v. Constr. Ga. (1995). opinion suggests contaminant, case, In our that the that only did fibers, contaminated the insurеd’s home and friable asbestos surrounding summarily pollute Still, in not holding environment. Id. pollutant policy, that asbestos is a within the terms of we pollutant Lumber, in had relied on Perkins Hardwood which surrounding nothing contaminated the environment. There is in suggest specifically American States Ins. Co. to that we considered pollution” “any ambiguity the “environmental irritant” versus raised Moreover, in this case. Id. we concluded that the claim was excluded in that case because the asbestos met the definition of“waste” as used subpart (1) (b) exclusion, ofthe and the ofthe removal asbestos fell operations under the exclusion for an insured’s to remеdiate the pollutants, provided subpart (1) (d) (ii) (2)(a), effects of and none of are at which issue this case.15Id. at 501 by majority The most recent case cited is Truitt &Oil Gas Co. Ranger argued case, Ins. Co. the insured that the definition ambiguous policy was because the referred in various provisions gasoline ways, e.g., “your product,” in several different “liquid products,” “gas.” (Punctuation omitted.) Oil, Truitt (1) (b). argument present Ga. at 91 This did not the issue we contrary majority’s position And, case, consider here. expressly storage to the in this we “[g]asoline held in Truitt Oil that which has leaked from its surrounding container and has contaminated the environ- pollutant meaning рolicy.” ment constitutes a within the of (Emphasis supplied.) Clearly, gasoline Id. which leaked from its storage ground system container and into the and sewer and con- surrounding commonly taminated the environment would and tra- ditionally pollution. Consequently, be considered environmental even construing coverage, the exclusion in the insured’s claim favor properly injured party’s would be excluded because the seepage discharge pollutant. arose from the of an environmental support majority’s Thus, Truitt Oil does not conclusion that an escaped irritant or contaminant which has not from the insured’s premises surrounding аnd has not contaminated the environment is automatically within the terms of the absolute exclusion. section, (a), supra. development the text absolute d. Historical pollution exclusion The absolute
exclusion. incorporated early during the 1980s and was drafted was purpose policies in 1986. The form CGL into the standard replace the 1973 “sudden and exclusion was to the new were distressed exclusion because insurers accidental” judicial holding exclusion did not that the 1973 decisions pollution. preclude coverage gradual but unintentional designed to bar cover- Further, the exclusion was absolute any type degradation age gradual *10 responsibility government-mandated preclude coverage to cleanups. omitted.) Highland
(Citations punctuation Andersen v. House and Jeffrey Stempel, quoting and Co., W. Reason 757 NE2d at Correctly Construing the Exclusion in Context Pollution: “Absolute” Expectations, Purpose Party 34 Tort &Ins. and in Accord with Its and recounted, As one federal court L. J. adopted pollution
[ijnsurance companies standard clauses sweeping response Congress’ broad, enactment of in legislation to cleaning up protecting the limited directed at and passage United of these new resources of the Statеs.... imposed greater potential economic burdens on insur- laws liability policies. comprehensive general ance underwriters City Pittsburg, (Citations omitted.) Fire Ins. Co. v. Westchester FSupp. (D. 1991).16 discussing 1463, 1469, n. Kan. After relatively leading up “well-documented and uncontroverted” events industry’s adoption pollution exclusion, of the to insurance Supreme Court of Illinois noted that the definition of issue here beyond wrought, provision’s scope its
was
not to broaden
purpose
excluding coverage
original
for environmental
pollution, but rather to remove the “sudden and accidental”
exception coverage
costly onslaught
in a
to
which... resulted
[they]
litigation.
remiss, therefore, if
[Courts]
would be
undisputed history
liability
industrial
was to
protect
Richardson v. Nationwide Mut. Ins.
See also in the billions of dollars for environmental
facilities.”).
insurers,
light
adoption
of then
of the absolute
recently
enacted federal environmental
pollution
cleanups of
exclusion reveals that its
were to
look to the bare words ofthe
étre,
its raison d’
and
it to situations which do not
remotely resemble traditional environmental contamina-
pollution
been,
tion. The
exclusion has
and should continue
appropriate
avoiding
yawning
be,
means of
extent
potential liability arising
gradual
repeated
from the
discharge of hazardous substances into the environment.
(Citations
punctuation
emphasis
original.)
omitted;
and
American
(Ill. 1997).
Koloms,
States Ins. Co. v.
687 NE2d
“Given the
background
historical
of the absolute
exclusion and the
art,”
drafters’ continued use of environmental terms of
the court held
applies only
injuries
that “the exclusion
to those
caused
traditional
pollution.”
“discharge,
result,
Id. at 82. As a
dis
persal,
escape
release, or
of a
must be into the environment
trigger
deny coverage
in order to
clause
(Citations
punctuation omitted.)
the insured.”
Id. at 81-82.As the
Appeals
held,
Court of
for the Tenth Circuit
the terms “irritant” and
“contaminant” in the standard absolute
exclusion “cannot
generally
isolation,
be read in
recognized
but must be construed as substances
polluting
They
the environment.
must occur in a
setting
they
recognized
particularly
such that
would be
as a toxic or
industry
by governmental regulators.” (Ci
harmful substance in
punctuation omitted.) Regional
tation and
Colorado v. St.
Bank of
Paul Fire and Marine Ins.
judgment premise as a matter of law based on the that all discharge, dispersal claimed Reed arise from the or release of a policy’s pollution within the terms of the exclusion. We ruling. should affirm the trial court’s Presiding Judge joins
I am authorized to state that Johnson this dissent. July
Decided Talley, appellant. Kendall, French & Kendall, Michael C. Johnston, Bullard, III, Beck, Owen & William G. Johnston Owen Murray, appellees. & Jones, Charles D.