South Carolina Insurance Reserve Fund v. East Richland County Public Service District

789 S.E.2d 63, 417 S.C. 149, 2016 S.C. App. LEXIS 32
CourtCourt of Appeals of South Carolina
DecidedMarch 23, 2016
DocketAppellate Case No. 2014-000728; No. 5393
StatusPublished
Cited by1 cases

This text of 789 S.E.2d 63 (South Carolina Insurance Reserve Fund v. East Richland County Public Service District) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Carolina Insurance Reserve Fund v. East Richland County Public Service District, 789 S.E.2d 63, 417 S.C. 149, 2016 S.C. App. LEXIS 32 (S.C. Ct. App. 2016).

Opinion

McDonald, j.

East Richland County Public Service District (the District) appeals the circuit court’s order finding the South Carolina Insurance Reserve Fund (the Fund) owed no duty to defend or indemnify the District, arguing the circuit court erred in concluding (1) the policy exclusion relied upon by the Fund did not conflict with the provisions of the South Carolina Tort Claims Act, and (2) the Fund had no duty to defend or indemnify the District. We affirm.

FACTS

In 2010, Coley Brown filed a complaint against the District for inverse condemnation, trespass, and negligence. The complaint alleged the District had installed a sewage force main and an air relief valve on Brown’s street, and the valve released offensive odors on his property multiple times a day. Brown made repeated requests to the District to remedy the problem but, despite the District’s attempts, the odor never subsided. The stench ultimately caused Brown to buy a new piece of property and move, but he was unable to sell the old property. The District tendered the complaint to the Fund pursuant to its insurance policy (the Policy), but the Fund denied coverage.

Pursuant to the Policy, the Fund is legally obligated to pay damages resulting from “[pjroperty [djamage to which this applies caused by an occurrence.” The policy defines “occurrence” as “an accident, including continuous or repeated exposure to conditions, which result[s] in personal injury or property damage neither expected nor intended from the standpoint of the insured.”

The Policy defines property damage as:

[153]*153(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or
(2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

Pursuant to Exclusion (f) (the pollution exclusion), no coverage exists for:

... personal injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritant, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental!.]

In March 2011, the Fund filed a complaint against the District seeking a declaratory judgment that the Fund had no duty to defend or indemnify the District in the Coley Brown matter. The Fund denied coverage based on the pollution exclusion as well as the Fund’s position that the damages alleged by Brown did not qualify as “property damage” caused by an “occurrence.” The District counterclaimed, seeking its own declaratory judgment that the Fund had a duty to defend and indemnify the District. In June 2011, the District and the Fund filed cross motions for summary judgment.

The circuit court held a non-jury trial in June 2012. The District’s executive director and former maintenance superintendent, Larry Brazell, testified the force main at issue was installed in 1999 or 2000 and was approved by the Department of Health and Environmental Control (DHEC). The main was installed as part of a larger project that also included two nearby pump stations. The pump stations were designed to turn on and pump sewage through the force main when the sewage inside their collection wells reached a certain level. Brazell explained it was impossible to know when the pumps would turn on during a given day but posited that they could turn on once per hour or ten times per hour depending on the area’s water usage or weather. Brazell testified that when the pumps activated, the air in the force main lines was forced out [154]*154through an “air vacuum valve.” Brazell stated that if this air was not released, the sewer lines would explode.

Brazell further explained the sewage odor itself was usually the result of naturally-occurring hydrogen sulfide — which smells like rotten eggs — and methane. The District was not required by DHEC to control or contain either of these gases. In response to the complaints, however, the District made various attempts to remedy the odors, including using a chlorine-based chemical, installing charcoal filters, and eventually using a granulated chemical media. In May 2010, the District took steps to modify the air relief valve in front of Brown’s house so that any air released from the valve would be dispersed in smaller amounts. However, Brazell explained the air relief valve was designed to force air containing hydrogen sulfide into the environment when the pumps came on and that such emissions generally happened multiple times per day. Nevertheless, Brazell offered some testimony that the situation at Brown’s residence was unique because of the magnitude of the odor, the lack of prior odor complaints in the area, and the District’s use of novel corrective measures to mask or eliminate the odors.

The circuit court subsequently ruled the Policy’s terms controlled whether the Fund was required to defend the underlying action. Specifically, the court found the Policy’s exclusion barring the inverse condemnation claim was valid and enforceable. As to the negligence and trespass claims, the court found the pollution exclusion's reference to gases and fumes encompassed the offensive odors delineated in Brown’s complaint. The court also determined the discharges of offensive odors were included within the District’s ordinary operations; thus, the pollution exclusion’s exception was inapplicable. Finally, the court found there was no ambiguity between the policy’s definition of “occurrence” and the pollution exclusion. Therefore, the court determined the Fund owed no duty to defend or indemnify the District in the underlying case.1 The District subsequently filed a Rule [155]*15559(e), SCRCP, motion to alter or amend the court’s judgment, which the circuit court denied.

STANDARD OF REVIEW

“The standard of review in a declaratory judgment action is determined by the underlying issue or issues.” Horry Cty. v. Ins. Reserve Fund, 344 S.C. 493, 497, 544 S.E.2d 637, 639 (Ct.App.2001). “The determination of legislative intent is a matter of law.” Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 228, 612 S.E.2d 719, 722 (Ct.App.2005). “An action to ascertain whether coverage exists under an insurance policy is an action at law.” Horry, 344 S.C. at 497, 544 S.E.2d at 640. “In an action at law, this court will not disturb the [circuit] court’s findings unless they are without any reasonable evidentiary support.” Id.

ANALYSIS

I. CONFLICT WITH THE TORT CLAIMS ACT

The District first argues the pollution exclusion is void because it conflicts with provisions of the South Carolina Tort Claims Act2 (The Act) requiring coverage for the underlying causes of action. Specifically, the District argues the Act requires the Fund to provide coverage for all risks for which immunity has been waived under the Act.

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Related

S.C. Ins. Reserve Fund v. E. Richland Cnty. Pub. Serv. Dist. & Coley Brown
813 S.E.2d 873 (Supreme Court of South Carolina, 2018)

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Bluebook (online)
789 S.E.2d 63, 417 S.C. 149, 2016 S.C. App. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-carolina-insurance-reserve-fund-v-east-richland-county-public-scctapp-2016.