727 A.2d 279 | Conn. Super. Ct. | 1998
In the personal injury lawsuit,2 it is alleged that Kim and her mother, Siyeth Kol, resided at 7 Thorpe Street Extension, in Danbury, Connecticut, which was owned by the Novellas, from approximately December, 1989, through August, 1993. The complaint alleges that during this time period, Kim was "exposed to dangerous, hazardous and toxic levels of lead paint in excess of both 0.06% and 0.50% lead by dry weight in intact and nonintact conditions on the interior and exterior surfaces of the premises," causing her personal injury.
Danbury issued an Owners, Landlords and Tenants Liability Insurance Policy, No. D 863, (the policy) to the Novellas for 7 Thorpe Street Extension from December 22, 1992 through December 22, 1993. The policy contains an endorsement entitled "Pollution Exclusion" (the clause). The pertinent language excludes coverage for "bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, *553 release or escape of pollutants . . . at or from premises owned, rented or occupied by the named insured." The clause defines pollutants as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."
In Heyman Associates No. 1 v. Ins. Co. of Pennsylvania,
The test under Heyman is whether the pollution exclusion clause clearly and unambiguously excludes as a pollutant lead paint in the condition described in the underlying complaint in the personal injury case, that is, "toxic levels of lead paint in excess of both 0.06% and 0.50% lead by dry weight in intact and nonintact conditions on the interior and exterior surfaces of the premises." To put it more simply, the first question is whether the only reasonable interpretation of the clause would categorize lead paint itself, on the interior and exterior surfaces of a residence, as a pollutant.4 The second question is whether the exposure as alleged in the underlying complaint constitutes a discharge, dispersal, release or escape under the terms of the policy. Both questions must be answered affirmatively for the pollution exclusion clause to apply.
Many courts have concluded that lead paint on the surfaces of a residence is not unambiguously a pollutant within the meaning of pollution exclusion clauses. See, e.g., Sphere Drake Ins. Co. v. Y.L.Realty Co.,
In Lefrak Organization, Inc. v. Chubb Custom Ins. Co., supra,
In Atlantic Mutual Ins. Co. v. McFadden, supra,
Although Heyman did not expressly adopt an "environmental" reading of pollution exclusion clauses, its underlying facts, where fuel oil spilled or released into a waterway caused environmental damage, present a classic case of environmental pollution.8 The Heyman plaintiff's claim to its insurer for reimbursement for the cost of remediating the environmental damage caused to the waterway, the shoreline and affected wildlife by the spilled fuel oil is significantly different from a claim by a landlord for defense and indemnification against a tenant's lawsuit for personal injury due to alleged exposure to lead paint on the interior and exterior of a rented apartment.
The clause must be deemed ambiguous because it is equally reasonable to conclude that lead paint may or may not be an irritant or contaminant, and therefore may or may not be a pollutant, within the meaning of *559
the clause. Furthermore, the clause may also be deemed ambiguous to the extent that a reasonable insured would interpret it to exclude coverage for claims arising out of factual circumstances more analogous to classic environmental pollution, but not for claims of personal injury allegedly sustained as a result of the type of paint covering the surfaces of rented premises. Accordingly, under our law, the interpretation of the exclusion clause which will sustain the claim of injury and cover the loss must be adopted. Griswold v. Union Labor Life Ins. Co.,
Lead paint on residential surfaces is not the same as lead paint waste. United States Liability Ins. Co. v. Bourbeau, supra, 49 F.3d 789. Neither intact nor nonintact lead paint on interior and exterior residential surfaces falls within the dictionary definition of "waste."9 Intact and nonintact lead paint are not materials that are to be recycled, reconditioned or reclaimed.10
The dictionary definitions of the words "waste," "recycle," "recondition" and "reclaim" provide additional support for an "environmental" or "industrial pollution" reading of Danbury's pollution exclusion clause. Looking to those definitions; see footnotes 9 *560
and 10, supra; it would be reasonable to conclude that the clause excludes coverage for injury caused by environmental or industrial pollution, but does not exclude coverage for injury alleged to be caused by exposure to lead paint. See, e.g., Stoney Run Co. v. Prudential-LMICommercial Ins. Co.,
Finally, Danbury points to General Statutes §
Furthermore, Danbury has not come forward with supporting documentation; see Practice Book §