Belt Painting Corp. v. TIG Insurance

293 A.D.2d 206, 742 N.Y.S.2d 332, 2002 N.Y. App. Div. LEXIS 5146
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 13, 2002
StatusPublished
Cited by7 cases

This text of 293 A.D.2d 206 (Belt Painting Corp. v. TIG Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belt Painting Corp. v. TIG Insurance, 293 A.D.2d 206, 742 N.Y.S.2d 332, 2002 N.Y. App. Div. LEXIS 5146 (N.Y. Ct. App. 2002).

Opinion

[207]*207OPINION OF THE COURT

Prudenti, P.J.

Whether the terms of the absolute pollution exclusion contained in certain contracts of insurance, including the one now under review in this case, should be applied literally so as to exclude coverage even in those cases where the “environment,” as that term is commonly understood, is unaffected by anything which could realistically be defined as “pollution,” is a question which has given rise to extensive litigation. Those courts which have considered this issue have arrived at contrasting conclusions. On this appeal, in accordance with our reading of the decision of the Court of Appeals in Westview Assoc. v Guaranty Natl. Ins. Co. (95 NY2d 334), we hold that the absolute pollution exclusion contained in the policy under review does not apply so as to exclude coverage in the case of a claimant allegedly injured as the result of the temporary indoor dissemination of paint or paint solvent fumes.

The injured plaintiff in the underlying personal injury action, Joseph Cinquemani, alleges that Belt Painting Corp. (hereinafter Belt), the plaintiff in the present action, is liable to him, and to his wife and coplaintiff, Maria Cinquemani, because of the injuries which he sustained as a result of his inhalation of “noxious and toxic fumes.” On April 26, 1997, Cinquemani allegedly inhaled paint or paint solvent fumes which were produced by Belt’s workers during the course of its performance of a subcontract to strip existing paint and repaint certain office space located at Financial Square, 33 Old Slip, New York, N.Y., where Mr. Cinquemani worked.

Belt was covered by a commercial general liability policy issued by the defendant TIG Insurance Company (hereinafter TIG) for the period from June 1, 1996, to July 1, 1997, and it demanded that TIG defend and indemnify it in connection with the Cinquemani action. By letter dated November 9, 1999, TIG denied coverage on the basis of the “total pollution exclusion endorsement” contained in the policy. The present action for declaratory and injunctive relief was commenced on or about June 16, 2000.

By notice of motion dated August 17, 2000, TIG sought summary judgment dismissing Belt’s complaint, arguing that it was not obligated to defend or indemnify Belt in connection with the underlying action based on the terms of the “total pollution exclusion endorsement” contained in the relevant policy. TIG relied on various cases, including A-One Oil v Massachusetts Bay Ins. Co. (250 AD2d 633), White v Freedman [208]*208(227 AD2d 470), and Demakos v Travelers Ins. Co. (205 AD2d 731). Belt moved for summary judgment in its favor, arguing that the pollution exclusion does not apply. Belt relied on Continental Cas. Co. v Rapid-American Corp. (80 NY2d 640), and Karroll v Atomergic Chemetals Corp. (194 AD2d 715), among other cases, and argued that the cases relied upon by TIG, including those noted above, were distinguishable.

The Supreme Court granted TIG’s motion, and denied Belt’s cross motion. In its order, the Supreme Court stated, “While it may be true that the endorsement applies only to environmental or industrial pollution, it has been held that indoor air contamination, such as in the instant case, can constitute environmental pollution,” citing A-One Oil v Massachusetts Bay Ins. Co. (250 AD2d 633, supra), American Heritage Realty Partnership v LaVoy (209 AD2d 749), and Demakos v Travelers Ins. Co. (205 AD2d 731, supra). Although the cases relied upon by the Supreme Court do support the proposition for which they are cited, we believe that subsequent case law, including, most importantly, the decision of the Court of Appeals in Westview Assoc. v Guaranty Natl. Ins. Co. (95 NY2d 334, supra), point to a different result. We therefore reverse.

Exclusionary provisions in insurance contracts are, in general, to be “accorded a strict and narrow construction” (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311, citing Taylor v United States Cas. Co., 269 NY 360, 363; Griffey v New York Cent. Ins. Co., 100 NY 417, 421; Rann v Home Ins. Co., 59 NY 387, 389; see Incorporated Vil. of Cedarhurst v Hanover Ins. Co., 89 NY2d 293, 298-299; Gaetan v Firemen’s Ins. Co. of Newark, 264 AD2d 806). In Incorporated Vil. of Cedarhurst v Hanover Ins. Co. (89 NY2d 293, 298-299, supra), the Court of Appeals stated that “pollution exclusions do not apply when the complaint does not allege that the discharge complained of actually results in pollution” (citing Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 74). In this case, although the Cinquemani complaint alleges that personal injuries resulted from the emission of toxic fumes in combination with other factors such as inadequate ventilation, it does not allege that Belt’s activities resulted in anything which would ordinarily be described as “pollution.”

The pollution exclusion under review in this case is the type of exclusion which, in numerous cases which have arisen in various jurisdictions, has been described as an “absolute,” or “total” pollution exclusion, as opposed to a “qualified” exclusion, that is, one containing an exception for “sudden and ac[209]*209cidental” discharges (see e.g. Northville Indus. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621; see also American Heritage Realty Partnership v LaVoy, 209 AD2d 749, supra; Roofers’ Joint Training, Apprentice & Educ. Comm, of W. N.Y. v General Acc. Ins. Co. of Am., 275 AD2d 90; Bechtel Petroleum Operations, Inc. v Continental Ins. Co., 96 Cal App 4th 571, 117 Cal Rptr 2d 399). It excludes coverage in cases of bodily injury “which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants at any time.” The term “pollutant” is then defined to include “any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste.”

In Westview Assoc. v Guaranty Natl. Ins. Co. (95 NY2d 334, supra), the Court of Appeals reviewed the similarly-worded provision of an umbrella policy, in which the term “pollutants” was defined as “ ‘smoke, vapors, soot, fumes, acids, sound, alkalies, chemicals, liquids, solids, gases, thermal “Pollutants,” and all other irritants and “Contaminants.” ’ ” (id. at 340). The Court of Appeals held that this exclusion, which by its literal terms would seem to apply to injuries resulting from exposure to “all irritants” and “all contaminants,” did not apply to exclude coverage in a case where the infant plaintiff in the underlying action claimed to have been injured as the result of the ingestion of lead paint, an injury which was incurred indoors. This holding is consistent with prior decisions of this Court holding that the pollution exclusions under review did not apply to eliminate coverage in cases involving ingestion of lead paint (see e.g. Cepeda v Varveris, 234 AD2d 497; GA Ins. Co. of N.Y. v Naimberg Realty Assoc., 233 AD2d 363).

The Westview decision represents a signal that New York will not adhere to a completely literal approach in connection with the application of absolute pollution exclusions, an approach which has been persuasively criticized in several other jurisdictions (see e.g. American States Ins. Co. v Kiger,

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Bluebook (online)
293 A.D.2d 206, 742 N.Y.S.2d 332, 2002 N.Y. App. Div. LEXIS 5146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belt-painting-corp-v-tig-insurance-nyappdiv-2002.