Summary
finding it ambiguous as to whether raw sewage is encompassed within the definition of waste, and therefore declining to apply the exclusion
Summary of this case from First Bap. Ch. of Mauriceville v. Guideone Mutual Ins. Co.Opinion
January 8, 1996
Appeal from the Supreme Court, Nassau County (Winick, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action for a judgment declaring that the defendant Hanover Insurance Company was obligated to defend and indemnify it with respect to a negligence action after the defendant denied coverage based on the pollution exclusion clause in the insurance policy it issued to the plaintiff. The underlying action was commenced to recover damages for bodily injury and/or property damage as a result of an overflow of sewage from a sewage system owned and/or maintained by the plaintiff. The policy provision at issue, which excluded coverage for claims arising from the discharge or release of pollutants, defined pollutants as follows: "Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled and reconditioned or reclaimed".
We agree with the defendant that the court erred in holding that the subject pollution exclusion clause was intended to apply only to (1) actual or intentional polluters (see, Powers Chemco v Federal Ins. Co., 74 N.Y.2d 910); and (2) industrial or commercial enterprises that create pollution or waste (see, Town of Harrison v National Union Fire Ins. Co., 219 A.D.2d 640). However, we agree with the trial court's finding that the injury or damages alleged in the underlying complaint did not result from a pollutant, and thus, the pollution exclusion clause contained in the policies in question were not applicable to this incident.
The term "raw sewage" is not explicitly listed in the policy as a pollutant, and the term "waste" contained in the exclusion is subject to more than one reasonable interpretation. Thus, since the exclusion is ambiguous as to whether raw sewage is encompassed within the definition of waste, the exclusion is not applicable in this case (see, Karroll v Atomergic Chemetals Corp., 194 A.D.2d 715; see also, Florida Farm Bur. Ins. Co. v Birge, 659 So.2d 310 [Fla]; Minerva Enters. v Bituminous Cas. Corp., 312 Ark. 128, 851 S.W.2d 403). Bracken, J.P., Miller, Altman and Florio, JJ., concur.