Opinion
C.A. No.: N14C-03-229 FSS
05-14-2015
RE: Debra Goodge and Ivor Goodge v. Nationwide Mutual Fire Insurance Company
Kenneth M. Roseman, Esquire Kenneth Roseman, P.A. 1300 King Street Wilmington, DE 19899 Cynthia G. Beam, Esquire Law Office of Cynthia G. Beam Christiana Executive Campus 131 Continental Drive, Suite 407 Newark, DE 19713-4301
FRED S. SILVERMAN JUDGE Kenneth M. Roseman, Esquire
Kenneth Roseman, P.A.
1300 King Street
Wilmington, DE 19899
Cynthia G. Beam, Esquire
Law Office of Cynthia G. Beam
Christiana Executive Campus
131 Continental Drive, Suite 407
Newark, DE 19713-4301
Upon Cross-Motions for Summary Judgment: Plaintiffs' Motion for Summary Judgment - DENIED; Defendant's Motion for Summary Judgment - GRANTED.
Dear Counsel:
From your motion papers it appears that in underlying litigation, Plaintiffs were sued by Milligan based on personal injury stemming from carbon monoxide exposure. Plaintiffs had personal injury coverage from Defendant. The insurance policy, however, had unambiguous pollution exclusions. Plaintiffs settled the underlying case and paid damages after the Defendant insurer here denied coverage and defense based on the exclusions. Then, Plaintiffs brought this case seeking indemnification and defense costs.
"Personal Liability and . . . Medical Payments to Others" and "Excess liability and additional coverages" do not apply to bodily injury or property damage:
arising out of any interior or exterior presence . . . of:
(1) . . . gaseous, or thermal irritants or contaminants, including . . . toxic gases . . .
(3) any other waste materials or other irritants, contaminants or pollutants. This exclusion [] does not apply to bodily injury arising out of routine lawn and garden care of an insured location.
In essence, Plaintiffs contend that because Defendant bears the burden of proving a coverage exclusion, Defendant must establish that the underlying litigation's settlement reflected payment for damages falling under the policy's pollution exclusion. In other words, Defendant must show that Plaintiffs' settlement with Milligan was for excluded, pollution-related damage.
While Plaintiffs' proposition is correct, Plaintiffs are bound by their complaint in the underlying litigation and the settlement they reached. The complaint and settlement are matters of record and indisputable.
According to the underlying complaint, in pertinent part:
4. At or about the same time and place as Plaintiff on the premises of the Defendants, suddenly and without warning, she was made ill as a result of the Defendants' negligence, specifically by causing carbon monoxide and other toxic substances to be exposed to Plaintiff as a result of the Defendants' negligence, thereby causing Plaintiff to be injured, all with force and violence.
5. The Defendants were negligent in that they:
All of the other allegations stem from or relate to the exposure. For example, the complaint alleges housing code violations, failure to inspect, and failure to warn. None of the allegations, however, charges any direct cause of injury except Milligan's exposure to carbon monoxide.(f) Exposed Plaintiff to a potentially [sic] carbon monoxide;
The underlying settlement provides, in pertinent part:
[T]he undersigned hereby releases and forever discharges [defendants] . . . from any and all claims. . . . whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from the conduct that was alleged in Civil action N13C-04-018 JAP.In support of its motion, Defendant also presents materials generated during the underlying case's discovery, all supporting the finding that the underlying case stemmed solely from Milligan's exposure to carbon monoxide at Plaintiffs' hands.
Based on the underlying complaint, settlement, and supporting materials, Defendant made a prime facie case for summary judgment here. Accordingly, the burden of going forward shifts to Plaintiffs to show a material dispute of fact concerning the underlying claim and settlement's basis.
As to that, Plaintiffs do not deny that the underlying case stemmed from and settled on the basis of carbon monoxide exposure. Instead, Plaintiffs argue, as a matter of law, "defendant is required to present expert medical testimony to establish that Milligan suffered bodily injury due to carbon monoxide exposure . . . ." There is, however, no case supporting a hard-and-fast rule, including the two cited by Plaintiffs. Nor does that requirement make sense.
Tyson Foods, Inc. V. Allstate Ins. Co., C.A. No. 09C-07-087 MJB, 2011 WL 3926195 (Del. Super. Aug. 31, 2011) (applying Arkansas law); Christina School District v. Reuling, 577 A.2d 752 (Del. 1990) (TABLE).
Milligan's claim was clearly based on carbon monoxide exposure. Plaintiffs, qua defendants in the underlying case, settled. Plaintiffs may not now renounce their settlement and demand more proof from their insurer. In light of Defendant's evidence, if Plaintiffs had reason to question the denial of coverage, they had to present it now. As it stands, the record undisputably shows the underlying claim was based on pollution.
Finally as to Plaintiffs' demand for defense costs, it is apparent from the complaint's allegations, discussed above, that the claim was not covered because it clearly fell under the pollution exclusion. In reaching this conclusion, the court is aware that the duty to defend is broader than the duty to indemnify. But, the duty to defend is not unlimited. As presented above, looking at the complaint and the unambiguous policy exclusion, it is patent that the claim is not covered.
See Farm Family Casualty Co. v. Cumberland Ins. Co., C.A. No. K11C-07-006 JTV, 2013 WL 5496780, (Del. Super. Oct. 2. 2013) (holding no duty to defend because there was no potential for coverage under an unambiguous total pollution exclusion); Nat'l Union Fire Ins. Co. of Pitt. v. Rhone-Poulenc Basic Chems. Co., C.A. No. 87C-SE-11, 1992 WL 22690 (Del. Super. Jan. 16, 1992) (concluding in dicta that "the insurers have no duty to defend if from the allegations in the complaint I can determine that there was a substantial probability that Defendant intended to discharge a pollutant"), aff'd sub nom. Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192 (Del. 1992); see also, E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45 (Del. Super. Aug. 23, 1995) (precluding coverage based on clear and unambiguous pollution exclusions), aff'd sub nom. E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 693 A.2d 1059 (Del. 1997). --------
In conclusion, the pollution exclusion here is clear, as was the underlying claim. There is nothing in the record, viewed most favorably to Plaintiffs, from which a jury could find that the underlying claim probably concerned more than an injury proximately caused by Milligan's carbon monoxide exposure, which is excluded. Accordingly, there is no fact left for a jury to determine, and Defendant is entitled to summary judgment.
For the foregoing reasons, Plaintiffs' Motion for Summary Judgment is DENIED. Defendant's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
Very truly yours,
/s/ Fred S. Silverman FSS: mes cc: Prothonotary (Civil)