Bentz v. Mutual Fire, Marine & Inland Insurance

WILNER, Judge. We have before us a declaratory judgment action raising an issue of insurance coverage. Those kinds of actions, unfortunately, are not rare. This is an uncommon action, however, in terms of both the issue involved and the manner in which it comes to us.

Background The plaintiffs are Robert and Elizabeth Bentz. On June 18, 1982, they purchased a home in Falling Water, West Virginia and shortly thereafter moved all of their possessions into it and began to live there. Before moving in, they engaged Wayne J. French, a pesticide applicator licensed in Maryland and West Virginia and trading as French’s Termite & Pest Control, to treat their new home. ⁵²⁷ They allege that on June 17, 1982 and again on April 6, 1983, Mr. French’s son, Ricky French, acting as an agent of his father or the company, “negligently, carelessly and recklessly made an application of toxic pesticide chemicals to the Premises.” Specifically, they contend that these toxic chemicals “were openly sprayed upon interior environmental surfaces and openly applied to exterior portions of the Premises” and that “[s]uch manner of application” violated Federal, Maryland, and West Virginia laws, permanently destroyed “the Premises as suitable for use as a residential dwelling,” destroyed the personal property located therein, and exposed the occupants to serious health hazard. The Bentzes allege further that (1) both Maryland and West Virginia law requires all licensed pesticide applicators to maintain liability insurance for injury and damage arising from the use or misuse of pesticides and that no applicator’s license may issue unless a certificate of insurance is filed with the State Department of Agriculture, the licensing agency; (2) in 1981, French 1 applied to Wright-Gardner Insurance, Inc. (Wright-Gardner), an insurance agency located and licensed in Maryland, for a policy that would comply with Maryland and West Virginia law; and (3) Wright-Gardner procured for French a policy from Mutual Fire, Marine & Inland Insurance Company (Mutual Fire) and certified the issuance of that policy to the State Department of Agriculture.

The nub of the Bentzes’ complaint is in the final four averments — that they sued French in the Circuit Court for Washington County to recover for their personal injuries and property damage, that Mutual Fire denied that its policy covered the claim and refused to defend French, that French has a meritorious cause of action against either Mutual Fire to declare and enforce his rights under the ⁵²⁸ policy or against Wright-Gardner for breach of contract and negligence in failing to procure a proper policy, and that French “has co-extensively assigned to Plaintiffs all of his rights, interests, and causes of action to proceed against [Mutual Fire and Wright-Gardner] to obtain a judicial Declaration of [their] duties and liabilities ... pursuant to the said policy of insurance or the application, issuance, and/or sale thereof and has authorized Plaintiffs to institute this declaratory judgment action against Defendants to obtain a judicial Declaration of rights, duties, and liabilities aforesaid.” Upon these averments, the Bentzes did indeed sue Mutual Fire and Wright-Gardner in the Circuit Court for Washington County seeking (1) in Count I, a declaratory judgment that French is an insured under the policy with respect to the claim made by the Bentzes and that Mutual Fire is obligated to defend the claim and pay any judgment rendered against French, and (2) in Counts II and III, a declaratory judgment that Wright-Gardner breached its contract with French to procure a policy that would cover the Bentzes’ claim, that it is liable to French and the Bentzes for any judgment obtained by the Bentzes, and that it is obligated to defend French against the claim made by the Bentzes. 2 Both defendants moved to dismiss the complaint on the grounds that the Bentzes lacked the legal capacity to bring the action, that they failed to join a necessary party (French), and that the complaint failed to set forth a justiciable controversy. In a Memorandum entered October 15, 1985, the court held that (1) by reason of the assignment from French, the Bentzes were entitled to bring the action against both defendants and that French was not a neces ⁵²⁹ sary party, (2) there was no coverage under the Mutual Fire policy and thus no justiciable controversy as to that company, (3) a justiciable controversy was stated under Count II with respect to Wright-Gardner, and (4) as Count III was duplicative of Count II, it should be dismissed. An accompanying order dismissed Counts I and III without leave to amend. No declaratory judgment of any kind was entered.

Following the failure of a motion for reconsideration filed by the Bentzes, they voluntarily dismissed Count II — the only one left alive — and brought this appeal. The Issues The appellees have apparently acquiesced in the court’s determination that, by reason of the assignment from French, the Bentzes have the capacity and authority to maintain this action against them. That has not been raised as an issue in this appeal, and we therefore do not address it. The Bentzes contend that the policy language in question is ambiguous and that, properly construed, it provides coverage.

They also urge, as an alternative, that they stated a good cause of action against Wright-Gardner based on negligence and that the court erred in dismissing it. Wright-Gardner, for obvious reasons, supports the Bentzes in their claim against Mutual Fire, but on different grounds than those pressed by the Bentzes. The policy is one of Manufacturers’ and Contractors’ Liability Insurance. In the “coverage” section, Mutual Fire agreed to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage “to which this insurance applies, caused by an occurrence----” (Emphasis added.) The term “occurrence” is defined in the policy as meaning “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” ⁵³⁰ Mutual Fire’s position is grounded on a “Pollution and Contamination Exclusion,” which states, in relevant part: “This policy shall not apply to personal injury or property damage arising out of the discharge, dispersal, release or escape of: (1) [sjmoke vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental____” (Emphasis added.) The insurer contends that the Bentzes’ claim arises from the intentional discharge of a toxic chemical by French in the course of his treatment of the home, that the discharge was neither sudden nor accidental, and that the exclusion rather than the exception to it applies.

The Bentzes, reading the exception in light of the definition of “occurrence,” contend that the discharge was both sudden and accidental and that the exception therefore does apply. Wright-Gardner takes a broader view of the matter. Though acknowledging that a number of courts have engaged in the exercise of deciding whether a particular discharge is “sudden” or “accidental,” it urges that the exclusion was never intended to apply to situations such as this. In a nutshell, its position is that “the pollution exclusion applies [only] to active polluters and not to insureds who apply pesticides to individual homes.” Discussion As a preliminary matter, we note that, even though convinced that no coverage was afforded under the policy, the court should not have dismissed Count I but should, instead, have entered a declaratory judgment articulating and implementing its construction of the policy.

See Mauzy v. Hornbeck, 285 Md. 84 , 400 A.2d 1091 (1979) and cases cited therein. Whether there is coverage under the Mutual Fire policy, at least with respect to an obligation of the insurer to ⁵³¹ defend, depends on two things: the relevant provisions of the policy and the averments of the Bentzes’ action against French. With respect to the policy, Maryland follows the rule that “[ijnsurance policies, being contractual, are construed as other contracts.” Bond v. Pennsylvania Nat’l Mut., 289 Md. 379, 384 , 424 A.2d 765 (1981). Words are given their customary and normal meaning.

Although this State has not subscribed to any special rule construing policies most strongly against the insurer, if there is an ambiguity in the policy it is usually construed against the insurer because, in most instances, the insurer drafted the policy, and, under normal contract law, the draftsman takes the consequences of the ambiguity he drafted. See National Grange Mut. Ins. v. Pinkney, 284 Md. 694, 705 , 399 A.2d 877 (1979). Unfortunately, the complaint filed against French does not appear to be in the record and is certainly not in the record extract.

Our knowledge of the underlying claim for which coverage is sought comes only from the allegations in the declaratory judgment complaint, namely, that the pesticide chemicals were “openly sprayed upon interior environmental surfaces and openly applied to exterior portions of the Premises,” that such manner of application was negligent, careless, reckless, and in violation of State and Federal law, and that it damaged or destroyed the real and personal property and caused injury to the occupants of the home. Although we would have preferred to have the underlying complaint before us, these characterizations of it do at least reveal three important things, directly or inferentially: (1) that the damage was apparently limited to the Bentzes property; (2) that it arose from the very kind of operation— the application of pesticide to a customer’s property pursuant to a contract with that customer — that a Manufacturers’ and Contractors’ liability policy is intended to cover; and (3) although the actual application of the pesticide was ⁵³² intentional, the harm was not intentional but arose from the “fact” that the pesticide was applied in a negligent or reckless manner. We are informed that the pollution exclusion clause was introduced as an endorsement in 1970 and began to be included as part of the standard Comprehensive General Liability Policy in 1973. See 2 R. Long, The Law of Liability Insurance, § 11.09[5] (1990).

See also Note, The Pollution Exclusion Clause Through the Looking Glass, 74 Geo.LJ. 1237 (1986), tracing in greater detail the history of coverage for pollution claims from “accident” based policies through “occurrence” based policies and the efforts to limit coverage through specific exclusions. The Maryland Insurance Commissioner did not permit a pollution exclusion clause until 1983. 3 There appear to have been two basic versions of the early exclusion clause — the Standard ISO (Insurance Services Office) clause, which is the one found in the Mutual Fire policy, and the “Travelers” clause, which tracks more the language of the definition of “occurrence” and applies the exclusion where the discharge “is either expected or intended from the standpoint of any insured.” See B. Ostrager and T. Newman, Handbook on Insurance Coverage Disputes § 8.02[b] (1989). The “Travelers” clause says nothing about “sudden and accidental” discharges. Id.

We mention this difference because both clauses have been the subject of judicial construction, and it is important, when considering the holdings of the courts and the language used by them, to keep in mind what it was they were ⁵³³ construing. It is the construction of the ISO clause that is most pertinent to us. 4 The pollution exclusion clause, together with the exception contained in it, can cover a wide variety of circumstances — contamination of land and structures on which the substance is stored, seepage or dispersal of substances onto neighboring property or into wells, aquifers, or sewerage systems, actual dumping of hazardous substances, the escape of gases into the air from the site of storage or use, the unintended dispersal of substances through otherwise lawful spraying operations. Each of these circumstances, and others not mentioned, has its own set of sub-circumstances, in terms of whether the discharge was deliberate, careless, or entirely innocent, whether it was foreseeable or unforeseeable, and how, why, and over what period of time it occurred. This too must be taken into account in considering how the clause is to be interpreted and applied.

Most of the cases involving the ISO clause have centered on whether the discharge at issue was sudden and accidental. That, we presume, is because unless the discharge fell within that category, the claim would likely fall within the exclusion and not be covered. Two basic approaches have emerged. Some courts have looked only to the exclusionary clause, found the words “sudden and accidental” to be unambiguous, and have given them their ordinary meaning.

Where the discharge continued for any appreciable period of time, therefore, or was deliberate or foreseeable, it was not regarded as sudden and accidental and the claim arising ⁵³⁴ from it was not covered. See, for example, U.S. Fidelity and Guar. v. Star Fire Coals, Inc., 856 F.2d 31 (6th Cir.1988); Fireman’s Fund Ins. Companies v. Ex-Cell-O Corp., 702 F.Supp. 1317 (E.D.Mich.1988); American Motorists Ins. Co. v. General Host Corp., 667 F.Supp. 1423 (D.Kan.1987); also cases cited in those cases and in B. Ostrager and T. Newman, supra, § 8.02[c].

That, of course, is the position urged by Mutual Fire. They note not only that the underlying complaint by the Bentzes fails to allege specifically that the discharge was sudden and accidental (something we are unable to verify) but that it could not under the circumstances be sudden and accidental. The discharge itself was deliberate, they urge, and apparently continued throughout the time French was engaged in treating the premises. Other courts have found the terms ambiguous on a variety of grounds.

Some compare the “sudden and accidental” exception to the definition of “occurrence,” which, in nearly all policies issued after 1966, measures the extent of general coverage and includes the continuous or repeated exposure to conditions resulting in injury or damage “neither expected nor intended from the standpoint of the insured.” The New Jersey courts, for example, have “consistently interpreted that exclusion to constitute the equivalent of an occurrence and to eliminate coverage only