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Cook v. Evanson

August 19, 1996

HEIDI SUE COOK, A SINGLE WOMAN, AND MARILYN KEETON AND RONALD KEETON, HUSBAND AND WIFE, APPELLANTS,
v.
JEROME EVANSON AND JANE DOE EVANSON, HUSBAND AND WIFE, D/B/A ADNIL DESIGN CONTRACTOR, DEFENDANTS, AMERICAN STATES INSURANCE COMPANY, RESPONDENT.



Superior Court County: Whatcom. Superior Court Cause No: 92-2-01036-1. Date filed in Superior Court: December 22, 1994. Superior Court Judge Signing: Hon. Michael Moynihan.

Petition for Review Denied April 2, 1997,

Written by: Hon. Walter E. Webster. Concurred by: Hon. Faye C. Kennedy; Hon. Anne L. Ellington

The opinion of the court was delivered by: Webster

WEBSTER, J. -- Appellants Heidi Cook and Marilyn Keeton sustained respiratory injuries from exposure to fumes from a concrete sealant negligently applied by Adnil Design Contractor (Adnil). At issue is whether a pollution exclusion clause in Adnil's commercial liability policy precludes coverage for the injuries. Because the exclusion clause unambiguously covers the injuries, we affirm the summary judgment order in favor of Adnil's insurer, American States Insurance Company.

FACTS

Adnil contracted to pressure wash and apply a sealant known as White Roc 10 to the exterior of the building where appellants worked. The contractors did not seal off a six- by eight-foot fresh air intake, which drew air into the building's HVAC system. White Roc 10 fumes entered the building, requiring evacuation. The appellants suffered serious respiratory damage when the fumes entered their workspaces.

The Material Safety Data Sheet describes White Roc 10 as a "respiratory irritant." The manufacturer's information also warns that the product may cause respiratory irritation, among other problems, and that the vapor should not be inhaled. Use of the product requires adequate ventilation and equipment, including an approved organic vapor respirator. Adnil's employees covered their faces with Vaseline and wore coveralls, gloves, hats, boots, and respirators while using the product.

Adnil had a commercial general liability policy through American States. Jerome Evanson, Adnil's vice president, did not read the policy or inquire whether it would cover specific types of injuries. In a deposition, he indicated that his goal was to obtain the least expensive coverage that would satisfy the state's licensing requirements.

The appellants sued Adnil's owners, Jerome and Linda Evanson, for damages sustained when Adnil "negligently allowed toxic vapors from the White Roc 10 [to] enter the HVAC system." They obtained default judgments totaling $392,725.06 when the Evansons failed to appear. They then commenced an action against American States to collect on the judgment. The appellants and American States both moved for summary judgment on the single question of whether a pollution exclusion clause in Adnil's liability policy precluded coverage. The trial court determined that the injuries fell within the exclusion and granted American States's motion for summary judgment.

Discussion

Pollution Exclusion Clause

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review summary judgment orders de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wash. 2d 715, 722, 853 P.2d 1373 (1993).

The interpretation of insurance policies is a question of law. American Star Ins. v. Grice, 121 Wash. 2d 869, 874, 854 P.2d 622 (1993). When the language is clear and unambiguous, we must enforce the contract as written. McMahan & Baker, Inc. v. Continental Casualty, 68 Wash. App. 573, 578, 843 P.2d 1133 (1993). A policy is ambiguous if the language, on its face, is fairly susceptible to two different reasonable interpretations. Greer v. Northwestern Nat'l Ins., 109 Wash. 2d 191, 200, 743 P.2d 1244 (1987).

We interpret insurance policies as the average person would and give undefined terms their plain, ordinary, and popular meaning. Queen City Farms v. Central Nat'l Ins., 126 Wash. 2d 50, 77, 882 P.2d 703 (1994). We also give policies a practical and reasonable interpretation, not one that would lead to absurd results. McMahan & Baker, 68 Wash. App. at 578. In doing so, it is appropriate to consider that the average purchaser of a comprehensive general liability policy would expect broad coverage for liability arising from business operations. See Queen City, 126 Wash. 2d at 78. An insurer may limit its liability so long as it does so with clear language. Teague ...


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