Kerr-McGee Corporation f/k/a Kemira, Inc. was sued by Alvin Finch, an employee of Tek-Wal Industrial Contractors, Inc., for injuries suffered while working on the premises of Kerr-McGee when another subcontractor’s employee negligently caused him to become exposed to the unintended release of the industrial chemiсal titanium tetrachloride wholly within Kerr-McGee’s plant and without any escape of the industrial chemical into the environment caused or contributed to by Tek-Wal. Kerr-McGee settled with Finch and sued Tek-Wal, among others, for indemnification under its construction contract with Tek-Wal to recover such expenses; howevеr, Tek-Wal filed bankruptcy. Tek-Wal was insured by Georgia Casualty & Surety Company, and Georgia Casualty brought this declaratory judgment action to determine whether or not its total pollution exclusion endorsement applied. This exclusion stated, “[t]his insurance does not apply to ‘[b]odily injury’ or ‘property damage’ which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.” The exclusion defined pollutant to “meant ] any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, аcid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.” The trial court granted summary judgment to Georgia Casualty, holding that the pollution exclusion applied and that there was no ambiguity in the exclusion. We reverse the grant of summary judgment, because the exclusiоn under the facts of this case was ambiguous in that “discharge, dispersal, seepage, migration, release or escape of pollutants” is ambiguous by not specifying where such must occur or who has caused it to result in noncovered damages.
The exclusion states that “discharge, dispersal, seepage, migration, release or escape of pollutants at any time” is excluded; this limits where the pollution occurs to atmosphere, soil, or water, which is the external environment to the chemical plant. However, in specifying release to atmosphere, soil, and water, the exclusion does not specify where in regаrd to a chemical plant: inside the plant, outside the plant, under the plant, or anywhere within the plant in an uncontained state where there is no threat of escape of pollutants into the atmosphere, soil, or water.
This raises the question of whether in the exclusion the chemicals as “pollutants” are discharged, released, etc. when they are contained in mixing vats and troughs as part of the production process or in a transport piping system inside a chemical plant in a con *459 trolled state; or whether the chemicals become a “pollutant” when, in an uncontrolled, uncontained, and unregulated state inside a chemical plant, titanium tetrachloride overflows a mixing vat, runs down the vat, and pools on the floor of the plant without escape or threat of escape to atmosphere, soil, or water. Industrial chemicals when used as intended and released from a container may be used in a production process to etch, to strip, to clean, to degrease, to polish, to act as a solvent, to paint, to coat, to act as a mastic, or to surface. At what point in time does a “discharge, dispersal, seepage, migration, release or escape” of industrial chemicals outside a containеr or containment system occur? How would containment be defined, i.e., used as intended outside a container, contained within the plant, or merely outside its container? For example, carbon tetrachloride, reported in many cases of maintenance slip and fall cases as a common industrial solvent/dеgreaser, when used on the floor of a restaurant or fast food business to remove food spills, would come within Georgia Casualty’s overly broad exclusion language if it caused someone to slip and fall. This definition of the escape of pollutants is overly broad and demonstrates ambiguity that would cause a reasоnable person to be unsure of what is excluded and what is covered by insurance.
Titanium tetrachloride, in the state intended by Kerr-McGee within the contained confines of its plant, never escaped or discharged outside the plant into the atmosphere, soil, or water or threatened to do so. Such language as to when a pollutant is not covered causes a reasonable person to be unsure of what appears at first blush to be plain and unambiguous but, upon examination under the facts of this case, is ambiguous.
Ambiguity exists when a contract term or condition is indistinct, uncertain of meaning or expression, and duplicitous.
Taylor v. Estes,
In applying the rules of construction to an insurance cоntract, “the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean.”
Gulf Ins. Co. v. Mathis,
If a policy of insurance is so drawn as to require an interpretation, and is fairly susceptible of two different constructions, the one will be adopted . . . favorable to the insured. Policies of insurance 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 the insured has no voice.
(Citation and punctuation omitted.)
Davis v. United American Life Ins. Co.,
In the definition, contained and waste chemical byproducts of manufacturing and chemical processes that are waste in gaseous, liquid, or solid states are pollutants but come within the exclusion only when discharged into аtmosphere, soil, and water. Gaseous waste contaminants in the exclusion definition include smoke, vapor, soot, or fumes, which escape into the atmosphere by implication. The *461 exclusion does not apply to “acids, alkalis, chemicals” which have not escaped into the environment.
The exclusiоn applies only when pollutants escape outside the containment area of the chemical plant into atmosphere, soil, or water and are not excluded when they have not escaped into the environment outside the physical plant, i.e., above, below, or around the outside of the physiсal plant. Thus, the exclusion must be given a narrow construction. The exclusion specifically listed as a pollutant thermal irritant and harmful gases, i.e., smoke, vapor, soot, and fumes with particularity, which cannot be contained within the physical plant outside a controlled container system.
The unintentional “discharge, dispersal, seepage, migration, release or escape of pollutants” into atmosphere, soil, or water indicated that the exclusion had no application to a contained location by its choice of verbs, which import a setting free as “unexpected and unintended.” Claussen v. Aetna Cas. &c. Co., supra at 336 (2). Thus, to constitute а pollutant to the environment within the exclusion, such release or escape had to be outside of an industrial containment system for chemicals, i.e., released into the environment of atmosphere, soil, or water outside the plant. The very verbs used indicate unintentional transfer of chemical waste from a containment system to the uncontained environment where atmosphere, soil, or water becomes polluted or contaminated. Id. at 336. To the extent that the physical structure of the chemical plant may be designed to contain and prevent any transfer of the chemicals from its containers into the environment, such chemicals have not escaped or threatened to escape into the environment, i.e., atmosphere, soil, or water. Id. at 336. Such constitutes an ambiguity that can only be resolved by the exclusion being restricted to escape or threatened escape of pollutants into the environment outside of the plant, i.e., plant soil, atmosphere surrounding the plant, or water leaving the plant.
The overly broad interpretation of means of excluded pollution as anything taken by the trial court demonstrates the ambiguity of the exclusion, because the exclusion’s effect is limitless in application when it should be limited to the environment only.
Enron Oil Trading &c. Co. v. Walbrook Ins. Co.,
*462 The Supreme Court of Georgia has held that almost the identical pollution exclusion was ambiguous when it used the phrase “is sudden and accidental” as to method of pollution excluded; this language was removed and replaсed with “at any time” under this pollution exclusion. Claussen v. Aetna Cas. &c. Co., supra at 334.
Truitt Oil &c. Co. v. Ranger Ins. Co.,
Thus, the release of titanium tetrachloride contained within the production area of the plant failed to come within the exclusion, because it did not escape or threaten to escape into the environment outside the physical plant. Such construction of the contract resolves the ambiguity and affords coverage to the insured, Tek-Wal. Claussen v. Aetna Cas. &c. Co., supra at 338.
The pollution exclusion clause, which was designed to apply to the environmental contamination, is so broad that a reasonable insured would not know what would be excluded under this provision as to cause of pollution, i.e., old lead paint in an apartment, carbon monoxide from a faulty furnace or hot water heater, toxic fumes from a mastic or roofing compound, paint spray, or sulfiiric acid spray to list a few chemicals, which insurers have denied coverage under this exclusion in other jurisdictions. The exclusion clause of an insurance contract may be ambiguous in one coverage context and not in
*463
another.
Stoney Run Co. v. Prudential-LMI Commercial Ins. Co.,
Where the insured did not causе or contribute to the release, the release did not occur on or originate from the insured’s property, and the indemnification claim against the insured is not for environmental contamination, the exclusion does not apply. See
Doerr v. Mobil Oil Corp.,
supra at 133-135 (exclusion does not apply when insured neither caused nor contributed to the release of pollution into the environment);
North American Specialty Ins. Co. v. Ga. Gulf Corp.,
99 FSupp.2d 726, 730-731 (M.D. La. 2000) (third party/independent contractor’s employee injured by release of gas in Georgia Gulf’s plant by it, exclusion did not apply, because the employer neither caused nor contributed to the release). The purpose of total pollution exclusion was to bar coverage responsibility for government-mandated cleanup under the Superfund for gradual environmental damages of any type.
Claussen v. Aetna Cas. &c. Co.,
supra at 336-337;
North American Specialty Ins. Co. v. Ga. Gulf Corp.,
supra at 730; see also
Doerr v. Mobil Oil Corp.,
supra at 135;
Nautilus Ins. Co. v. Jabar,
Judgment reversed.