Madison Construction Co. v. Harleysville Mutual Insurance

735 A.2d 100, 557 Pa. 595, 1999 Pa. LEXIS 2139
CourtSupreme Court of Pennsylvania
DecidedJuly 27, 1999
StatusPublished
Cited by542 cases

This text of 735 A.2d 100 (Madison Construction Co. v. Harleysville Mutual Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Madison Construction Co. v. Harleysville Mutual Insurance, 735 A.2d 100, 557 Pa. 595, 1999 Pa. LEXIS 2139 (Pa. 1999).

Opinions

OPINION

SAYLOR, Justice.

The issue in this declaratory judgment action is whether a pollution exclusion clause in a policy of commercial general liability insurance issued to Appellant, Madison Construction Company (“Madison”), by Appellee, Harleysville Mutual Insurance Company (“Harleysville”), relieves Harleysville of its obligation to defend Madison in an underlying personal injury action. We conclude, as did the en banc Superior Court, 451 Pa.Super. 136, 678 A.2d 802, that the pollution exclusion clause operates to bar coverage in the present case, and therefore affirm.

The events giving rise to this litigation are as follows: In 1991, Madison was engaged in pouring and curing concrete utility trenches at the Boeing/Vertol Helicopters Facility. To cure the concrete, Madison applied a compound known as Euco Floor Coat or Eucocure. While this was being done, the construction area was enclosed in an “envelope” of polyethylene sheeting. According to his subsequently filed complaint, Nicholas Ezzi, a Boeing employee, was summoned to the construction area to investigate a strong odor. Ezzi alleges that as he attempted to set up an exhaust fan for the fumes emanating from the curing agent, he was overcome by the fumes, lost consciousness, and fell into an excavation site, sustaining severe and permanent injuries.

Ezzi filed a negligence action, naming as defendants Madison, a subcontractor; Kelran Associates, Inc., the general contractor; and Brian Murtaugh, a Kelran project superinten[599]*599dent. Kelran and Murtaugh joined Euclid Chemical Company, the manufacturer of Euco Floor Coat, as an additional defendant.

Madison was insured under a commercial general liability policy issued by Harleysville. The policy contained a clause requiring Harleysville to defend Madison in any lawsuit that fell within the parameters of coverage. Madison informed Harleysville of the accident shortly after it occurred. Harleysville denied coverage and refused to defend on the basis of the policy’s pollution exclusion clause,1 which reads as follows

2. Exclusions.

This insurance does not apply to:

f.(l) “Bodily injury” or “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;
(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....

The policy defines “pollutants” as

any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals [600]*600and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Harleysville maintained that Euco Floor Coat was a pollutant -within the meaning of the policy. Madison then filed the present declaratory judgment action to resolve the issue of whether Harleysville was contractually obligated to provide coverage. Both parties moved for summary judgment.

The trial court denied Harleysville’s motion for summary-judgment and entered summary judgment in favor of Madison. In the opinion in support of its order, the trial court considered first the meaning of the term “pollutant” in the context of a pollution exclusion clause. After noting that the appellate courts of the Commonwealth had not yet addressed the issue, the trial court chose to adopt the interpretation set forth by the intermediate appellate court of North Carolina in West American Ins. Co. v. Tufco Flooring, 104 N.C.App. 312, 409 S.E.2d 692, appeal dismissed as improvidently granted, 332 N.C. 479, 420 S.E.2d 826 (1992).

In that case, Tufco, a floor resurfacing business, used a styrene monomer resin in the course of resurfacing the floors in certain areas of a Perdue chicken processing plant. Vapors or fumes from the resin allegedly contaminated chicken stored in a nearby cooler. Relying on a pollution exclusion clause similar to the one at issue here, the insurer, West American, refused to provide coverage for Perdue’s claim against Tufco. The trial court granted summary judgment to Tufco and Perdue in their declaratory judgment action against West American. The Court of Appeals affirmed, reasoning, in pertinent part, that

Tufco did not bring the vapors or fumes which invaded the chicken to the Perdue plant. Rather, Tufco brought an unadulterated, pure raw material, styrene monomer resin, in one-gallon metal cans with screw-on caps. When this raw material was brought onto the site, it was neither an “irritant [nor a] contaminant.” It was a raw material used by Tufco in its normal business activity of resurfacing floors. Yet, to be a “pollutant” under the exclusion, a substance [601]*601brought onto the site must be precisely that, an “irritant or contaminant.”

Id. at 322, 409 S.E.2d at 698.

Similarly, the trial court declared in the present case, what Madison brought to the work site was not vapors or fumes but a pure raw material, Euco Floor Coat, which was contained in covered, one-gallon cans. Far from being an unwanted “irritant” or “contaminant,” the court reasoned, Euco Floor Coat was a necessary tool of Madison’s trade; in fact, Madison’s contract with Kelran required it to use such a curing compound. Therefore, the trial court concluded that the policy’s definition of “pollutants” was clear and unambiguous and did not extend to the substance at issue, Euco Floor Coat.

Although the trial court could have rested its decision that the exclusion did not apply upon that conclusion alone, it also considered whether there had been a discharge, dispersal, or similar action of the allegedly polluting substance for the purposes of the exclusion. Again the trial court turned to Tufco for guidance. According to the North Carolina court,

[t]he operative policy terms of the pollution exclusion clause imply that there must be a discharge into the environment before coverage can be properly denied. The operative terms in the version of the pollution exclusion clause at issue in this case are “discharge,” “dispersal,” “release,” and “escape.” While they are not defined in the policy, the terms “discharge” and “release” are terms of art in environmental law and include “escape” by definition and “dispersal” by concept.

Id. at 324, 409 S.E.2d at 699 (footnote excluded). Although the absolute version of the pollution exclusion clause, unlike its predecessor, did not include language specifying a discharge of pollutants “into or upon land, the atmosphere or any water course or body of water ...,” the court was convinced by its review of the exclusion’s history that the omission was of no moment.

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

Related

Bodman, G. v. Mendelson, H. & M.
Superior Court of Pennsylvania, 2025
Wintersteen, M., Aplt. v. Truck Ins. Exchange
Supreme Court of Pennsylvania, 2020
Kurach, K., Aplt. v. Truck Ins. Exchange
Supreme Court of Pennsylvania, 2020
J.A. Galante v. Moniteau School District
Commonwealth Court of Pennsylvania, 2020
Est. of Theodore R. Flint v. Giansante, L.
Superior Court of Pennsylvania, 2019
Justice, S., Aplt. v. Trooper Lombardo
208 A.3d 1057 (Supreme Court of Pennsylvania, 2019)
Com v. UPMC, Appeal of Com. by A.G.
208 A.3d 898 (Supreme Court of Pennsylvania, 2019)
Hershey Creamery Co. v. Liberty Mut. Fire Ins. Co.
386 F. Supp. 3d 447 (M.D. Pennsylvania, 2019)
Limandri v. Allstate Ins. Co.
379 F. Supp. 3d 400 (E.D. Pennsylvania, 2019)
The Cincinnati Ins. Co. v. Selective Ins. Co.
Superior Court of Pennsylvania, 2017
York Development v. Atlantic Wireless
Superior Court of Pennsylvania, 2017
William Penn School District v. Pennsylvania Department of Education
170 A.3d 414 (Supreme Court of Pennsylvania, 2017)
Applecross Club v. Pulte Homes of PA.
Superior Court of Pennsylvania, 2017
William Smith v. Steckman Ridge LP
590 F. App'x 189 (Third Circuit, 2014)
Lenau, N. v. Co-Exprise, Inc.
102 A.3d 423 (Superior Court of Pennsylvania, 2014)
State Farm Fire & Cas. Co. v. Dantzler
Nebraska Court of Appeals, 2013

Cite This Page — Counsel Stack

Bluebook (online)
735 A.2d 100, 557 Pa. 595, 1999 Pa. LEXIS 2139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madison-construction-co-v-harleysville-mutual-insurance-pa-1999.