The Louisiana Department of Environmental Quality v. Tidewater Landfill LLC & the Louisiana Fruit Company

Opinion

THE LOUISIANA * NO. 2020-CA-0334 DEPARTMENT OF ENVIRONMENTAL QUALITY * COURT OF APPEAL

VERSUS * FOURTH CIRCUIT

TIDEWATER LANDFILL LLC * STATE OF LOUISIANA & THE LOUISIANA FRUIT COMPANY, ET AL *

* *******

DLD DYSART, J., DISSENTS.

I respectfully dissent from the majority’s finding that the trial court erred in

granting summary judgment. As ruled by the trial court, I feel that the pollution

exclusion contained in the policy of insurance issued by Gray Insurance Company

to Tidewater Landfill, LLC, and Environmental Operators, LLC, excludes

coverage for the claims set forth in this lawsuit. Therefore, I would find that the

grant of summary judgment, dismissing Gray Insurance Company from this

lawsuit, was proper.

The claims set forth by the Louisiana DEQ in this lawsuit pertain to

Tidewater’s alleged failure to comply with rules and regulations relating to its

operation of a landfill, which resulted in, inter alia, the migration of leachate from

the landfill onto neighboring properties and to waterways within the State.

Furthermore, DEQ alleged that Tidewater failed to close the landfill in accordance

with various laws and regulation, obligations for which Tidewater is now

financially incapable of meeting.

DEQ’s lawsuit, entitled “Petition for Mandatory Injunction to Abate

Continuing Nuisance,” asserted several causes of action. These include a

mandatory injunction mandating that Tidewater comply with solid waste

regulations and all orders from DEQ to properly close the landfill and thereafter provide post-landfill closure care of the site. The lawsuit also alleged that

Tidewater, as a solidary obligor along with the site’s owner, has a duty “to abate

the continuing nuisance.”1

The CGL policy in question was in effect from January 1, 1993 through

January 1, 1996. The insuring agreement of Gray’s policy provided that Gray

would pay for damages because of “bodily injury” or “property damage” to which

the insurance applies. The policy contains a “Total Pollution Exclusion

Endorsement.” The exclusion pertinent to this case bars coverage for “ ‘[b]odily

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.” The exclusion also bars coverage for

“[a]ny loss, cost or expense arising out of any: (a) [r]equest, demand or order 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)

[c]laim 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 or pollutants.”

It seems abundantly clear that the claims set forth in this lawsuit would not

have arisen absent “the actual, alleged or threatened discharge, dispersal, seepage,

migration, release or escape of pollutants.” Accordingly, it is clear that the claims

set forth in this suit fall squarely within the pollution exclusion and are thus,

1 That nuisance was described in the Petition as “Tidewater[’s] continu[ing] to allow leachate from the Landfill to run into waters of the state and the Landfill has not been sloped in a manner that would ensure stability. The Landfill is a nuisance and a danger to human health and the environment.”

By way of an amending Petition, the DEQ further elaborated on the nuisance as follows:

The nuisance condition continues as long as the Landfill does not properly prevent the infiltration of water into the waste. Tidewater and Louisiana Fruit continue to allow leachate from the Landfill to run into waters of the state causing damage. The Landfill is a present and continuing nuisance and danger to neighboring properties of the landfill. excluded from coverage under Gray’s insurance policy. Further, giving due

consideration to the pollution exclusion in light of the factors set forth in Doerr v.

Mobil Oil Corp., 20-0947 (La. 12/19/00), 774 So.2d 119, opinion corrected on

reh’g, 20-0947 (La. 3/16/01), 782 So.2d 573, leads to the conclusion that the

DEQ’s claims, while potentially recoverable against Tidewater, are not covered by

Gray’s insurance policy. The Doerr Court reiterated our long-standing

jurisprudential rule what where “a contract does not lead to absurd consequences it

will be enforced as written.” Id., 774 So.2d at 124.

In this case, the pollution exclusion is unambiguous and should be applied as

written to exclude the claims of the DEQ in this matter. I would, therefore, affirm

the trial court’s grant of summary judgment in favor of Gray Insurance Company.