Regan Heating and Air Conditioning, Inc. v. Arbella Protection Insurance Company, Inc.

Supreme Court of Rhode Island·Decided January 27, 2023·No. 20-170·Published

Opinion

January 27, 2023

Supreme Court

No. 2020-170-Appeal.

(PC 15-4811)

Regan Heating and Air Conditioning, :

Inc.

v. :

Arbella Protection Insurance Company, :

Inc., et al.

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Supreme Court

No. 2020-170-Appeal.

(PC 15-4811)

Regan Heating and Air Conditioning, :

Inc.

v. :

Arbella Protection Insurance Company, :

Inc., et al.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Chief Justice Suttell, for the Court. The plaintiff, Regan Heating and Air Conditioning, Inc., appeals from a Superior Court judgment in favor of the defendant, Arbella Protection Insurance Company, Inc., following the denial of its motion for summary judgment and the grant of the defendant’s motion for summary judgment. On appeal, the plaintiff contends that the hearing justice committed multiple errors warranting reversal of the judgment. Accordingly, the plaintiff asks this Court to vacate the hearing justice’s entry of summary judgment in favor of the defendant and remand the matter to the Superior Court for entry of summary judgment in favor of the plaintiff on several counts and for further proceedings. For the reasons set forth herein, we vacate the judgment of the Superior Court.

I

Facts and Travel

We glean the underlying facts of this case from plaintiff’s complaint, the submissions of the parties, and the transcript.

The plaintiff is a company that sells and services residential heating and air-conditioning systems. The plaintiff is a long-standing customer of Christopher & Regan Insurance, Inc. (C&R),1 an independent insurance agency with whom plaintiff consulted prior to purchasing insurance to protect it from risks associated with its business. Based on the information provided by C&R, plaintiff purchased two policies from defendant; the one relevant to this matter is Arbella Commercial Package policy number 8500026770 (the policy). The policy provided coverage to plaintiff from December 1, 2014, to December 1, 2015.

On or about May 12, 2015, plaintiff was in the process of removing an older heating system and installing a new heating system for non-party Robert O’Donnell at O’Donnell’s home in Glocester, Rhode Island (the property). That evening, O’Donnell discovered 170 gallons of home heating oil in his basement; his complaint alleged that the oil leak resulted in property damage. O’Donnell filed suit

1 C&R was also named as a defendant in the complaint; however, it is not a party to this appeal. We additionally note that plaintiff and C&R are of no relation, despite sharing a similar name.

against plaintiff alleging negligence and demanding remediation from the property damage.

The plaintiff thereafter demanded that defendant defend and indemnify plaintiff against O’Donnell’s claim. In a letter dated June 11, 2015, counsel for defendant notified plaintiff that O’Donnell’s claim was not covered under the policy. The letter stated that the loss was “not a covered occurrence” pursuant to the total endorsement because, according to defendant, it was “clear under Rhode Island law that ‘oil’ is a pollutant” defined in the policy and, therefore, the total endorsement excluded coverage.

The relevant policy provisions are as follows. First, contained in the policy is the definition of “pollutants.” Under the policy, “‘Pollutants’ mean 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.”

The policy also includes a pollution exclusion. That section is “modifie[d]”

by and, in effect, replaced by the “Total Pollution Exclusion Endorsement” (the total endorsement):

“This insurance does not apply to:

“f. Pollution

“(1) ‘Bodily Injury’ or ‘property damage’ 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.

“(2) Any loss, cost or expense arising out of any:

“(a) Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of ‘pollutants’; or

“(b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of, ‘pollutants’.”

The first portion of the pollution exclusion—specifically, subparagraph (1)(a)—is also “modifie[d]” by the “Amendment of Pollution Exclusion – Exception for Building Heating Equipment” (the limited endorsement):

“This insurance does not apply to:

“POLLUTION

“(1) ‘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.

However, Subparagraph (a) does not apply to ‘bodily injury’ if sustained within a building and caused by smoke, fumes, vapor or soot from equipment used to heat that building.”

The parties dispute the effect of each of these modifications on the policy.

The plaintiff filed its complaint against defendant and C&R on November 3, 2015, alleging breach of contract, common law and statutory bad faith, and requesting specific performance and a declaratory judgment against defendant.2 The defendant filed motions for summary judgment in June 2016 and June 2018.3 The defendant argued that it was entitled to summary judgment on all counts “because the underlying loss is precluded from coverage by the unambiguous language of” the policy. Specifically, defendant submitted that the total endorsement precludes coverage because, defendant alleges, that endorsement states that the policy “does not apply to * * * ‘property damage’ which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, disbursal, seepage, migration, release or escape of ‘pollutants’ at any time.” (Emphasis added.) According to defendant, the home heating oil involved in the

2 The plaintiff’s bad-faith claims against defendant were severed from the other claims by order dated May 12, 2016. 3 The defendant’s two motions for summary judgment appear to be the same, however, the June 18, 2018 motion is missing the second page, which should contain the signature of counsel for defendant.

underlying incident was a pollutant because “[o]il, by its very nature, constitutes a liquid contaminant consistent with th[e] definition” of pollutant found in the policy.

In support of its motion, defendant highlighted the Legislature’s definition of pollutant in G.L. 1956 chapter 12 of title 464 and the Supreme Judicial Court of Massachusetts’s opinion in McGregor v. Allamerica Insurance Company, 868 N.E.2d 1225 (Mass. 2007), which held that “spilled oil is a classic example of pollution, and a reasonable insured would understand oil leaking into the ground to be a pollutant.” McGregor, 868 N.E.2d at 1228.

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Regan Heating and Air Conditioning, Inc. v. Arbella Protection Insurance Company, Inc., (R.I. 2023).

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