Kent Farms, Inc. v. Zurich Insurance

969 P.2d 109, 93 Wash. App. 414
CourtCourt of Appeals of Washington
DecidedDecember 29, 1998
Docket16779-8-III
StatusPublished
Cited by11 cases

This text of 969 P.2d 109 (Kent Farms, Inc. v. Zurich Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kent Farms, Inc. v. Zurich Insurance, 969 P.2d 109, 93 Wash. App. 414 (Wash. Ct. App. 1998).

Opinions

Schultheis, C. J.

During a delivery of diesel fuel to Kent Farms, Inc., the deliveryman was injured when he was doused with fuel that flowed back from the underground tank and through its shutoff valve. Kent Farms’s insurer refused to defend and indemnify Kent Farms contending the injuries were excluded under the pollution exclusion clause. Finding that clause ambiguous, the superior court [416]*416granted Kent Farms’s motion for summary judgment. We agree with the reasoning of the superior court and affirm.

FACTS

On August 5, 1994, Steven Gugenberger was delivering diesel fuel to one of the storage tanks at Kent Farms. After the fuel had been pumped from his truck to the tank, he shut off the valve to the tank and proceeded to remove the hose. As he did, the fuel came back through the valve from the tank. He tried his best to reattach the hose in order to stop the spill of thousands of gallons of diesel fuel, but before he could do so, he was totally doused in fuel. Fuel went down his throat and into his lungs and stomach.

Mr. Gugenberger filed a complaint against Kent Farms. He alleged that as a result of his inhalation and swallowing of fuel he suffered damages including physical and emotional injuries, medical expenses, loss of enjoyment of life and disability.

Zurich Insurance Company insured Kent Farms with a commercial insurance policy, which included farm liability coverage. The insuring agreement provides coverage if a third party claim seeks damages for “bodily injury” caused by an “occurrence.” The parties do not dispute that Mr. Gugenberger’s claim satisfies the policy definitions of “bodily injury” and “occurrence.”

The farm liability coverage contains various express exclusions. At issue is the pollution exclusion, which reads:

This insurance does not apply to:
c. (1) “Bodily injury” and “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any “insured”;
[417]*417(d) At or from any premises, site or location on which any “insured” or any contractors or subcontractors working directly or indirectly on any “insured’s” behalf are performing operations;
(i) If the pollutants are brought on or to the premises, site or location in connection with such operations by such “insured”, contractor or subcontractor; . . .
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, reconditioned or reclaimed.

Kent Farms requested Zurich defend and indemnify it for Mr. Gugenberger’s claim. Zurich declined. Kent Farms filed a declaratory action. Both parties filed motions for summary judgment. The trial court granted summary judgment to Kent Farms, declaring Zurich had a duty to defend and indemnify. Zurich appeals.

ANALYSIS

In reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Clements, 121 Wn.2d at 249. The appellate court considers the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Id. The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Id. Here, both parties moved for summary judgment.

The interpretation of an insurance policy is a question of law for the court. Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 424, 932 P.2d 1244 (1997); City of Redmond v. [418]*418Hartford Accident & Indem. Ins. Co., 88 Wn. App. 1, 7, 943 P.2d 665 (1997), review denied, 134 Wn.2d 1001 (1998). Certain basic principles apply when examining an exclusionary clause in insurance contracts. Coverage exclusions are contrary to the fundamental purpose of insurance and will not be extended beyond their clear and unequivocal language. Stuart v. American States Ins. Co., 85 Wn. App. 321, 325-26, 932 P.2d 697 (1997), aff’d, 134 Wn.2d 814, 953 P.2d 462 (1998). Exclusions, therefore, are strictly construed against the insurer. Findlay v. United Pac. Ins. Co., 129 Wn.2d 368, 374, 917 P.2d 116 (1996); Stuart, 85 Wn. App. at 326. Nevertheless, this general rule is merely an aid in determining the intention of the parties. Farmers Ins. Co. v. Clure, 41 Wn. App. 212, 215, 702 P.2d 1247 (1985). A strict application should not trump plain, clear language resulting in a strained or forced construction. See Transcontinental Ins. Co. v. Washington Pub. Utils. Dists.’ Util. Sys., 111 Wn.2d 452, 457, 760 P.2d 337 (1988); see also Teague Motor Co. v. Federated Serv. Ins. Co., 73 Wn. App. 479, 484, 869 P.2d 1130 (1994).

The superior court accepted Kent Farms’s argument that Zurich’s pollution exclusion is ambiguous. Specifically, the court focused upon the definition of pollutant, which the court noted under the right circumstances could apply to almost any substance. Thus, the definition makes the pollution exclusion clause overbroad and capable of many meanings.

An exclusion is ambiguous if, on its face, its language is fairly susceptible to two different but reasonable interpretations. State Farm Mut. Auto. Ins. Co. v. Ruiz, 134 Wn.2d 713, 721-22, 952 P.2d 157 (1998); Peasley, 131 Wn.2d at 424. But if the language is clear and unambiguous, we must enforce the clause as written and cannot modify the contract or create ambiguity where none exists. American Nat’l Fire Ins. Co. v. B&L Trucking & Constr. Co., 134 Wn.2d 413, 428, 951 P.2d 250 (1998); Peasley, 131 Wn.2d at 424. When analyzing the policy and reviewing for an ambiguity, policy language is construed as if read by an average [419]*419insurance'purchaser. Id.; see also Queen City Farms, Inc. v. Central Nat’l Ins. Co.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Zhaoyun Xia v. Probuilders Specialty Ins. Co.
Washington Supreme Court, 2017
Sulphuric Acid Trading Co. v. Greenwich Insurance Co.
211 S.W.3d 243 (Court of Appeals of Tennessee, 2006)
Quadrant Corp. v. American States Insurance
154 Wash. 2d 165 (Washington Supreme Court, 2005)
Quadrant Corp. v. American States Ins. Co.
110 P.3d 733 (Washington Supreme Court, 2005)
Quadrant Corp. v. American States Ins. Co.
76 P.3d 773 (Court of Appeals of Washington, 2003)
Quadrant Corp. v. American States Insurance
118 Wash. App. 525 (Court of Appeals of Washington, 2003)
Gainsco Insurance Co. v. Amoco Production Co.
2002 WY 122 (Wyoming Supreme Court, 2002)
Kent Farms, Inc. v. Zurich Insurance
140 Wash. 2d 396 (Washington Supreme Court, 2000)
Kent Farms, Inc. v. Zurich Ins. Co.
998 P.2d 292 (Washington Supreme Court, 2000)
Ducote v. Koch Pipeline Co., LP
730 So. 2d 432 (Supreme Court of Louisiana, 1999)
Kent Farms, Inc. v. Zurich Insurance
969 P.2d 109 (Court of Appeals of Washington, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
969 P.2d 109, 93 Wash. App. 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kent-farms-inc-v-zurich-insurance-washctapp-1998.