Lead Opinion
Amy Smith, individuаlly and as next friend of Tyasia Brown, filed a personal injury action against Bobby Chupp, alleging that Brown, her daughter, suffered severe and permanent injuries as a result of having ingested lead-based paint in the house they rented from Chupp.
Georgia Farm Bureau Mutual Insurance Compаny (“GFBM”), with which Chupp had a commercial general liability insurance policy on the property, filed a declaratory judgment action against
In Case No. A14A1824, Smith appeals from the grant of summary judgment in the declaratory judgment action. In Case No. A14A1825, Chupp appeals from the same ruling. For the reasons that follow, we reverse the judgment in both cases.
In her personal injury complaint, Smith alleged that she and her daughter (who was born in 2004) resided as tenants in Chupp’s rental house for several years, beginning in 2004; that a health department inspection of the premises in 2007 revealed that the house had been painted with lead-based paint and that deteriorated lead-based paint was present throughout the house; that said paint was cracking, chipping, and peeling; that the child had been еxposed repeatedly and continuously over a period of years to high levels of lead from lead paint; that medical tests conducted in 2007 revealed that the child had lead in her bloodstream; that an investigator’s report concluded that “the likely primary cause for the [child’s] elevated blood lead level is ingestion of leaded paint chips or dust”; that the child’s exposure to the lead-based paint during her infancy resulted in debilitating, permanent disabilities; and that Chupp breached his duties to, inter alia, keep the premises safe by abating the premises of lead paint and to warn Smith of the dangers posed by lead on the premises, the presence of which he had knowledge.
At issue in this case is whether the lead-based paint claims asserted in Smith’s personal injury action are excluded from covеrage pursuant to the insurance policy’s “pollution exclusion.” We hold that the claims are not excluded.
Under the “Coverages” section of the policy, Section I, Paragraph 1, Subparagraph (a) provides in relevant part:
We will pay those sums that the insured beсomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or suit that may result.
This insurance applies to “bodily injury” and “property damage” only if: (1) [t]he “bodily injury” or “propеrty damage” is caused by an “occurrence” that takes place in the “coverage territory.”
The term “[occurrence” is defined in the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditiоns.”
The policy contains a section called “Exclusions.” It provides:
This insurance does not apply to:
(f) Pollution
(1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants”: (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.
The policy defines “pollutants” as follows:
“Pollutants” mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes mаterials to be recycled, reconditioned or reclaimed.
Case No. A14A1824
1. Smith contends that the trial court erred by granting summary judgment to GFBM because there is no exclusion in the policy which allows GFBM to deny insurance coverage for bodily injury resulting from lead-based paint ingestion. We agreе with Smith.
This court reviews “the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.”
The cardinal rule of [contract] construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, [the contract] shall be enforced irrespective of all teсhnical or arbitrary rules of construction.4
When a policy of insurance is so drawn as to require an interpretation, and it is fairly susceptible to two different constructions, the construction to be adopted will be the one most favorable to the insured.
Policies of insuranсe will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer’s instance, in the preparation of which thе insured has no voice.6
Furthermore,
[i]n construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.7
‘Where the claim is one of potential coverage, doubt as to liability and insurer’s duty to defend should be resolved in favor of the insured.”
We agree with Smith that lead-based paint is not clearly a “pollutant” as defined by the policy. As set out above, under the policy, a “pollutant” is “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemiсals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.” The policy’s definition of “pollutant” does not include the words “lead,” “lead-based paint,” or even “paint.” Whether lead-based paint is properly classifiable as оne of the substances specifically enumerated in the policy’s definition of “pollutant” is not clear.
In Kerr-McGee Corp. v. Ga. Cas. & Surety Co.,
The issue of whether lead-based paint is considered a “pollutant” for the purposes of a pollution exclusion clause in a liability insurance policy is one of first impression in Georgia. And in other jurisdictions, thеre is “conflict in judicial opinions regarding whether lead paint is a ‘pollutant’ under [a] pollution exclusion.”
In one such case, Sullins v. Allstate Ins. Co.,
We hold that if GFBM had intended to exclude injuries caused by lead-based paint from coverage in the policy at issue in this case, it was required, as the insurer that drafted the policy, to specifically exclude lead-bаsed paint injuries from coverage.
Notably, the case of Reed v. Auto-Owners Ins. Co.,
Case No. A14A1825
2. Chupp contends that the court erred by granting summary judgment to GFBM on the issue of coverage because injuries resulting from lead-based paint are covered and the pollution exclusion is ambiguous and to bе construed against the insurer, and because coverage also existed for Smith’s “failure to warn” claim. As discussed in Division 1, the claim was covered and not excluded, and the court erred by granting summary judgment to GFBM.
3. Chupp contends that the court erred by granting summary judgment on GFBM’s duty to defend him against Smith’s lаwsuit. We agree.
Under Georgia law,
[a]n insurer’s duty to defend turns on the language of the insurance contract and the allegations of the complaint asserted against the insured. We look to the allegations of the complaint to determine whether a claim covered by the policy is аsserted. If the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action. . . . [Furthermore,] [t]he duty to defend is excused only when a complaint unambiguously excludes coverage under the рolicy.24
Inasmuch as there was coverage for the claim and the exclusion did not apply, GFBM had a duty to defend Chupp against Smith’s lawsuit.
Judgments reversed.
Notes
Bd. of Commrs. of Crisp County v. City Commrs. of City of Cordele,
Becton v. Tire King of North Columbus,
Moore v. Goldome Credit Corp.,
OCGA § 13-2-3.
Western Pacific Mut. Ins. Co. v. Davies,
Id. (footnote omitted).
Bartlett v. American Alliance Ins. Co.,
Penn-America Ins. Co. v. Disabled American Veterans,
Alley v. Great American Ins. Co.,
Interstate Life & Accident Ins. Co. v. Wilmont,
The pollution exclusion provision in Kerr-McGee “defined pollutant to ‘mean[ ] any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.’ ” Id.
Id. at 462.
Id.
Sullins v. Allstate Ins. Co.,
See, e.g., Lefrak Organization, Inc. v. Chubb Custom Ins. Co., 942 FSupp. 949, 951, 953 (S.D. N.Y 1996) (pollution exclusion clause did not preclude coverage for lead paint poisoning); Cepeda v. Varveris,
Supra.
Id. at 509-510 (III).
Id. at 511 (III); see also Sphere Drake Ins. Co. v. Y.L. Realty Co., 990 FSupp. 240, 243-244 (S.D. N.Y. 1997) (holding that pollution-exclusion clauses like the one in the policy at issue in the present case do not bar coverage in lead-based paint poisoning cases).
See, e.g., Hartford Underwriter’s Ins. Co. v. Estate of Turks, 206 FSupp.2d 968 (E.D. Mo. 2002) (policy’s pollution exclusion specifically defined “pollutant” as “including... chemicals, lead paint, . . .”).
See ALEA London Ltd. v. Woodcock,
Id. at 287-288.
Nationwide Mut. Fire Ins. Co. v. Somers,
See generally id. at 425 (2).
Concurrence Opinion
concurring specially.
I write separately to make it plain that contrary to the majority’s conclusion that an insurer must “specifically exclude lead-based paint injuries from coverage,” it has never been the law in the state
Moreover, I believe that the majority’s reliance on Sullins v. Allstate Ins. Co.,
Accordingly, for these and other reasons, I do not agree with all that is said in the majority’s opinion, making the majority’s decision nonbinding physical precedent only pursuant to Court of Appeals Rule 33 (a).