RaceTrac Petroleum, Inc. v. Ace American Insurance

841 F. Supp. 2d 1286, 2011 WL 7090812, 2011 U.S. Dist. LEXIS 152613
CourtDistrict Court, N.D. Georgia
DecidedApril 4, 2011
DocketNo. 1:10-cv-2162-WSD
StatusPublished
Cited by1 cases

This text of 841 F. Supp. 2d 1286 (RaceTrac Petroleum, Inc. v. Ace American Insurance) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RaceTrac Petroleum, Inc. v. Ace American Insurance, 841 F. Supp. 2d 1286, 2011 WL 7090812, 2011 U.S. Dist. LEXIS 152613 (N.D. Ga. 2011).

Opinion

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Defendant ACE American Insurance Company’s (“Ace”) Motion to Dismiss [11].

I. BACKGROUND

Plaintiff RaceTrac Petroleum, Inc. (“RaceTrac”) is a Georgia corporation that operates itself, or leases to third-parties, more than 500 retail locations in the southeastern United States, to sell gasoline, food, and other convenience items. (Compl. ¶ 1). Ace is a Pennsylvania corporation that provides commercial general liability insurance products to corporate clients. (Id. ¶ 2).

RaceTrac seeks a declaratory judgment that a commercial general liability insurance policy it purchased from Ace provides coverage for two lawsuits filed against RaceTrac by two employees who allege personal injuries resulting from benzene poisoning caused by overexposure to gasoline vapor at work.

A. The Policy

This action involves an “Excess Commercial General Liability Policy” that RaceTrac purchased from Ace, originally covering the period June I, 2005, to June 1, 2006, and renewed to cover the period June 1, 2006, to June 1, 2007 (collectively, the “Policy”). (Id. ¶6 & Exs. A-B (the “Original Policy” & “Renewal Policy”)).1 [1288]*1288Under the Policy, Ace agrees to “pay the insured for the ‘ultimate net loss’ in excess of the ‘retained limit’ shown in the Declarations that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” (Original Policy § I.A. l.a).

The Policy restricts coverage for certain types of injuries, including injuries arising from pollution (the “Pollution Exclusion”). A subsection in the body of the Policy disclaims coverage for injuries or liabilities arising out of or related to pollution. (Original Policy §§ I.A.2.Í, V.14). Endorsement 9 replaces that exclusion with an identical exclusion, but allowing coverage for damages arising from pollution released by the heat, smoke, or fumes of a hostile fire. Endorsement 9 provides:

[This insurance does not apply to:] Any injury, damage, expense, cost, loss, liability or legal obligation arising out of or in any way related to pollution, however caused.
Pollution includes the actual, alleged or potential presence in or introduction into the environment of any substance if such substance has, or is alleged to have, the effect of making the environment impure, harmful, or dangerous. Environment includes any air, land, structure or the air therein, watercourse or water, including underground water.
This exclusion does not apply to: “bodily injury” or “property damage” caused by heat, smoke or fumes from a hostile fire....
A hostile fire means one which becomes uncontrollable or breaks out from where it was intended to be.

(Original Policy, endorsement 9).

B. The Underlying Lawsuits

On April 13, 2009, Jacqueline Sheree Bunns (“Bunns”) filed a personal injury lawsuit against RaceTrac and others in the Circuit Court of Tishomingo County, Mississippi. (Compl. Ex. D (Complaint, Bunns v. Detsco, Inc., No. 09-0057 (Miss. Cir. Ct. Tishomingo Cnty.)) (the “Bunns Complaint”)). On April 14, 2009, Lisa R. Williams (‘Williams”), represented by the same attorney as Bunns, filed in the same court as Bunn’s action, a nearly identical personal injury lawsuit against RaceTrac and others (collectively, the “Underlying Lawsuits”). (Compl. Ex. E (Complaint, Williams v. Detsco, Inc., No. 09-0059 (Miss. Cir. Ct. Tishomongo Cnty.)) (the Williams Complaint”)).

The Underlying Lawsuits allege that Bunns and Williams (the “Underlying Plaintiffs”) worked at a gas station that RaceTrac had leased to a third-party to operate. (Bunns Compl. at 3; Williams Compl. at 2). They allege that other defendants in the Underlying Lawsuits performed renovations on the gas station, after which the Underlying Plaintiffs noticed “an extremely unusual odor” inside the premises. (Bunns Compl. at 3; Williams Compl. at 2). The odor lasted “several weeks and months.”

The Underlying Plaintiffs began experiencing unusual health problems. Their conditions worsened with the Underlying Plaintiffs experiencing “nose bleeds, dizziness, severe headaches, chest pains, breathing problems, fatigue, abdominal pain, bleeding from [their] ears, and loss of finger nails and toe nails.” (Bunns Compl. at 3; Williams Compl. at 2-3). They eventually experienced hair loss, changed voices, and chemical sensitivity. (Bunns Compl. at 3; Williams Compl. at 3). As a result of these health problems, Bunns and Williams allege they have been unable to [1289]*1289work and that they have incurred substantial medical expenses. (Bunns Compl. at 4; Williams Compl. at 3-4).

Medical tests allegedly revealed that Bunns and Williams were exposed to high levels of benzene, which they describe as “a highly toxic, flammable liquid that is not commonly dispensed in service stations and [which] presents a serious health hazard when exposed to humans in large quantities.” (Bunns Compl. at 3; Williams Compl. at 3). The Underlying Plaintiffs allege that negligent renovations of the RaceTrac location where they worked caused “lines to be routed into a console in or about the cash register[ ] which caused fumes to be inhaled by the Plaintiff[s] on a daily basis.” (Bunns Compl. at 4; Williams Compl. at 3). Bunns and Williams also allege the possibility that RaceTrac delivered benzene to the gas station instead of gasoline, exposing Bunns and Williams to excessive levels of benzene. (Bunns Compl. at 4; Williams Compl. at 3). Bunns seeks fifty million in damages, and Williams seeks forty million. (Bunns Compl. at 5; Williams Compl. at 4).

Benzene is typically present in small amounts in unleaded gasoline, including the gasoline that is delivered and sold at gas stations. (Compl. ¶ 43). Although the Underlying Plaintiffs allege that benzene was delivered to the gas station in place of gasoline, RaceTrac alleges that discovery in the Underlying Lawsuits has revealed that the Underlying Plaintiffs’ claims are in fact based on exposure to gasoline fumes from ordinary unleaded gasoline. (Compl. ¶¶ 45-46).

C. The Current Dispute

Bunns and Williams commenced the Underlying Lawsuits in April 2009. RaceTrac provided Ace with details of the Underlying Lawsuits soon thereafter, and updated Ace as the litigation progressed. (Compl. ¶ 37). The Policy was in effect during the time the Underlying Plaintiffs sustained their injuries. (Compl. ¶ 33).

On March 11, 2010, Ace disclaimed any coverage under the Policy for liability related to the Underlying Lawsuits. Ace claimed that benzene is a pollutant and that the Underlying Plaintiffs’ alleged injuries “arise out of’ or are “related to” the presence of benzene in the air. (Compl. ¶ 40). Based on the Pollution Exclusion, Ace concluded that no coverage exists for the Underlying Lawsuits.

On July 13, 2010, RaceTrac filed its Complaint in this Court.

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841 F. Supp. 2d 1286, 2011 WL 7090812, 2011 U.S. Dist. LEXIS 152613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/racetrac-petroleum-inc-v-ace-american-insurance-gand-2011.