CALOGERO, Chief Justice.
This class action lawsuit arises out of a discharge of hydrocarbons from a Mobil Oil refinery in Chalmette, Louisiana into the Mississippi River in January of 1998. Following the discharge, the hydrocarbons were allegedly drawn into the St. Bernard Parish water system and then distributed to users throughout the parish. The plaintiffs seek compensation from St. Bernard Parish and its insurer, Genesis Insurance Company, among others, for personal injuries allegedly suffered following the consumption and/or use of the allegedly contaminated water. The trial court denied a motion for summary judgment filed by Genesis based upon a total pollution exclusion endorsement in the policy. The Fourth Circuit Court of Appeal thereafter reversed and dismissed the claim against Genesis based on the interpretation of that exclusion by this court in its decision in Ducote v. Koch Pipeline Co., 98-0942 (La.1/20/99), 730 So.2d 432. We granted the writ application of St. Bernard Parish to reexamine our holding in Ducote and to consider its contention that the insurance policy issued by Genesis Insurance covers its potential liability exposure in this case.
The plaintiffs allege that from January 7, 1998 to January 11, 1998, the Mobil Oil Chalmette refinery, which was owned and operated by Mobil Oil Corporation and Chalmette Refining, L.L.C., "experienced discharge(s), spill(s), upset(s) and/or emission(s) of various substances, hazardous and nonhazardous, as a result of overflow or runoff of the contents of its waste water facility" into the Mississippi River. These "substances," it is alleged, were drawn into the St. Bernard Parish water system and, in turn, distributed to at least 6,000 persons within the homes and businesses of St. Bernard Parish.
Although the parties dispute the date that Genesis first began insuring the St. Bernard Parish government, the policy at issue was a commercial general liability insurance policy ("CGL policy") issued by Genesis Insurance Company to St. Bernard Parish that was effective from February 1, 1996 to February 1, 1999. Under the terms of the policy, St. Bernard Parish was self-insured against claims of up to $250,000 and Genesis provided coverage for the next $1,000,000 of liability, per occurrence, for bodily injury or property damage caused by St. Bernard Parish. Additionally, the policy contained an endorsement entitled "Total Pollution Exclusion Endorsement," which provided in its entirety:
This insurance does not apply to:
This exclusion was not part of the original policy, but was adopted and placed in the policy on February 27, 1996.
Following the alleged contamination of their water supply, plaintiffs filed this class action suit against Mobil Oil Corporation and Chalmette Refining, L.L.C. on January 14, 1998. On July 28, 1998, plaintiffs filed a First Supplemental and Amending Petition for Damages adding EPEC Oil Co., formerly known as Tenneco Oil Co., as a defendant because of its alleged ownership and custody of the refinery at issue.
In August of 1999, Genesis filed a motion for summary judgment arguing that there was "no genuine issue of material fact that the total pollution exclusion endorsement contained in the policy of insurance issued to St. Bernard Parish Government excludes coverage for plaintiffs' alleged damages." On November 5, 1999, the trial court denied Genesis's motion for summary judgment and Genesis subsequently applied for a writ from the court of appeal. On March 3, 2000, the Fourth Circuit granted the writ application, reversed the trial court, and dismissed the claim against Genesis Insurance Company. See Doerr v. Mobil Oil Corp., 99-3131, pp. 1-3 (La.App. 4 Cir. 3/3/00), 766 So.2d 562, 562-63. Specifically, the Fourth Circuit rejected the arguments that (1) Ducote's interpretation of pollution exclusions only applied prospectively, (2) this court did not have the benefit of documentation from the Office of Louisiana Commissioner of Insurance when it decided Ducote, and (3) the court should not follow Ducote because it was improperly decided. See id. 99-3131 at 1-2, 766 So.2d at 562-63. In doing so, the Fourth Circuit found that Ducote controlled and required it to find no coverage under the policy. See id. 99-3131 at 1, 766 So.2d at 562. St. Bernard Parish applied for a writ of certiorari to this court which we granted. See Doerr v. Mobil Oil Corp., 00-0947 (La.6/16/00), 763 So.2d 611.
Interpretation of the Insurance Policy
The resolution of this matter turns on the interpretation of the Genesis insurance policy's total pollution exclusion. An insurance policy is an aleatory contract subject to the same basic interpretive rules as any other contract. See La. Civ.Code art. 1912, cmt. e; Magnon v. Collins, 98-2822, p. 6 (La.7/7/99), 739 So.2d 191, 196; Peterson v. Schimek, 98-1712, p. 4 (La.3/2/99), 729 So.2d 1024, 1028; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993).
When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy's terms. See Barber v. Best, 394 So.2d 779, 781 (La.App. 4th Cir.1981). On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy. See Dubois v. Parish Gov't Risk Mgmt. Agency-Group Health, 95-546, p. 5 (La.App. 3 Cir. 1/24/96), 670 So.2d 258, 260; Shaw v. Fidelity & Cas. Ins. Co., 582 So.2d 919, 925 (La.App. 2nd Cir.1991); Landry v. Louisiana Hosp. Serv., Inc., 449 So.2d 584, 586 (La.App. 1st Cir.1984); Barber, 394 So.2d at 781. Importantly, when making this determination, any ambiguities within the policy must be construed in favor of the insured to effect, not deny, coverage. See Yount v. Maisano, 627 So.2d 148, 151 (La. 1993); Garcia v. St. Bernard Parish Sch. Bd., 576 So.2d 975, 976 (La.1991); Breland v. Schilling, 550 So.2d 609, 610 (La.1989); Sherwood v. Stein, 261 La. 358, 362, 259 So.2d 876, 878 (1972).
In this case, the total pollution exclusion purportedly excludes coverage for any injury that "would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape" of any "solid liquid, gaseous, or thermal irritant or contaminant" at any time. As written, the exclusion can be read to exclude coverage for anything from the release of chlorine gases by a conglomerate chemical plant to the release of carbon monoxide from a small business owner's delivery truck. It could be read to exclude injuries resulting from a slip and fall on an oil-slicked beach to a slip and fall on spilled gasoline at a corner service station. As pointed out in Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043 (7th Cir.1992):
The Civil Code is clear that if a contract does not lead to absurd consequences it will be enforced as written. See La. Civ. Code art. 2046. When absurd results are possible from such a reading, however, the contract is ambiguous, and the courts must construe the provision in a manner consistent with the "nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties." La. Civ. Code art. 2053; accord La.Rev.Stat. 22:654. Finally, as pointed out above, insurance policies are construed to effect,
Ducote v. Koch Pipeline Co.
In Ducote, Ramona Ducote and her husband sued Koch Industries, Inc., parent company of Gulf Central Pipeline Company, for injuries received when Ramona Ducote was exposed to anhydrous ammonia. See Ducote v. Koch Pipeline Co., 98-0942, pp. 1-2 (La.1/20/99), 730 So.2d 432, 434-35. Alexander & Ainsworth Contractors were subcontracted to cut the grass along an ammonia transmission line owned and operated by Gulf Central in Avoyelles Parish. See id. 98-0942 at 1, 730 So.2d at 434. Alexander & Ainsworth was insured by First Financial Indemnity Company, and Gulf Central was insured by Commercial Union Insurance Company. See id.
On September 11, 1995, an employee of Alexander & Ainsworth was cutting the grass along the Koch pipeline when his tractor overturned and the blade of the bushhog struck the pipeline, rupturing it. See id. 98-0942 at 2, 730 So.2d at 435. Ramona Ducote sued Koch Pipeline for injures allegedly sustained because of the release of the anhydrous ammonia. In response to Ducote's claim, Koch filed third party demands against Alexander & Ainsworth, First Financial, Commercial Union, and various other entities. First Financial and Commercial Union filed motions for summary judgment seeking to deny coverage based on pollution exclusion clauses in each of their policies. The clauses in Ducote were identical to the exclusion in this case in every respect except for an inconsequential difference in this case, i.e., the final paragraph of the exclusion in this case (the hostile fire exception) was not present in the Ducote exclusions.
This court, in a 4-3 decision, held that the pollution exclusions prevented the Ducotes from recovering from the insurers under their CGL policies. See id. 98-0942 at 5, 730 So.2d at 437. Specifically, the majority reasoned that the language in the first paragraph of the exclusion was unambiguous in its exclusion of any damages or injury and that this preclusion of coverage was explicit. See id. 98-0942 at 4, 730 So.2d at 436. Further, the majority found that nothing in the exclusion limited its applicability to "active industrial polluters or businesses which knowingly emit pollutants over a period of time." Id. Finally, the majority found that the exclusion "applies regardless of whether the release was intentional or accidental, a one-time event or part of an on-going pattern of pollution." Id. 98-0942 at 4-5, 730 So.2d at 437. Therefore, this court found that the pollution exclusion in the insurance policy precluded coverage for the plaintiffs' claims.
Ducote's Application to this Case
As it would not be necessary to reexamine the holding in Ducote if that case did not control the one before us, we must first address the argument by St. Bernard Parish that Ducote is distinguishable. Both in brief and oral argument, the Parish argued that Ducote did not control the present matter because in Ducote an insured's own employee caused the "pollution," whereas in this case a third party
The Ducote court found that pollution exclusions were unambiguous and excluded coverage for injury "which would not have occurred in whole or in part but for the [dispersal] of pollutants at any time." Ducote, 98-0942 at 2, 4, 730 So.2d at 432, 437. Therefore, if Ducote is correct, it is irrelevant who precipitates the alleged pollution event. Coverage for any injuries that "would not have occurred but for the [dispersal] of pollutants" would be excluded.
Finding that Ducote would be dispositive in this case, we turn now to the validity of that ruling and whether that decision should be overruled at this time. We therefore begin with an analysis of the origin of the pollution exclusion itself.
Origin of the Total Pollution Exclusion
As the environmental movement gained momentum in the 1970s, the insurance industry began to offer separate Environmental Impairment Liability policies to cover pollution risks. See Frank P. Grad, Treatise on Environmental Law, § 4A.02[d] (Matthew Bender 1998) (quoting United States General Accounting Office, Hazardous Waste, Issues Surrounding Insurance Availability, Report to Congress October 1987 (GOA/RCED-88-2), at 12)). In doing so, insurers attempted to shift coverage of environmental risks away from commercial general liability policies by introducing what has come to be known as the original general pollution exclusion. That provision excluded coverage for:
9 Lee R. Russ, Couch on Insurance § 127:6 (3rd ed.1997). Over time, many policies began to include a "sudden and accidental" exception to this pollution exclusion: "This exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental." See id. at § 127:8.
By the late 1970s and early 1980s, Congress had enacted new legislation that sought to protect the environment in many ways. See id. at § 127:3. The most significant piece of legislation in this regard was the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). See 42 U.S.C. § 9601 et seq.
By 1986, the "absolute" pollution exclusion had been introduced which omitted from the exclusion the "sudden or accidental"
Id. at § 127:6. Importantly, there is no history in the development of this exclusion to suggest that it was ever intended to apply to anyone other than an active polluter of the environment. Consequently, the intent of this pollution exclusion was not to apply unambiguously "regardless [as the majority stated in Ducote] of whether the release was intentional or accidental, a one-time event or part of an on-going pattern of pollution." Ducote, 98-0942 at 4-5, 730 So.2d at 437. In fact, to give the pollution exclusion the broad reading found in Ducote would contravene the very purpose of a CGL policy, without regard to the realities which precipitated the need for the pollution exclusion—the federal government's war on active polluters.
Commercial General Liability policies are purchased by both large and small business owners in an attempt to protect against losses that may result from unforeseen liability-imposing events or circumstances. As stated in Section I(A)(1)(a) of the policy at issue here, the issuer of a liability policy "will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies." Business owners rely on these policies to protect them against claims and losses which might otherwise force insolvency or prompt serious losses.
Both liability insurers and their insureds have certain expectations regarding issuance of a CGL policy. The liability insurer expects premiums in exchange for a certain level of risk, and the insureds expect to be insulated generally from liability claims. A literal reading of the total pollution exclusions would alter the general scope and expectation of the parties. Consequently, because the pollution exclusion was designed to exclude coverage for environmental pollution only, it should be interpreted so that the clause "will not be applied to all contact with substances that
We have been urged in brief (by the Amicus Insurance Environmental Litigation Association) to avoid the result this majority effects today based on jurisprudence constante. In fact, during oral argument, counsel for Genesis read from an expression of a former justice of this court who warned of the "confusion and turmoil" that may result from this court overruling a prior case. Counsel went so far as to argue that if Ducote were reversed, incredible uncertainty would result because of this court's failure to follow its own precedent. That statement ignores the fundamental difference between a common law judiciary's adhering to stare decisis and our courts' following the civilian principle of jurisprudence constante.
The Civil Code establishes only two sources of law in Louisiana: legislation and custom. See La. Civ.Code art. 1. Within these two categories, legislation is superior to custom and will supercede it in every instance. See La. Civ.Code art. 3. Judicial decisions, on the other hand, are not intended to be an authoritative source of law in Louisiana. See A.N. Yiannopoulos, Louisiana Civil Law System § 35, p. 53 (1977). Consequently, Louisiana courts have frequently noted that our civilian tradition does not recognize the doctrine of stare decisis in our state. See Ardoin v. Hartford Acc't & Indem. Co., 360 So.2d 1331, 1334 (La.1978); Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576, 591 (La. 1975); Carter v. Moore, 258 La. 921, 959, 248 So.2d 813, 829 (1971); Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 296, 236 So.2d 216, 218 (1970), overruled on other grounds, Jagers v. Royal Indem. Co., 276 So.2d 309, 312 (La.1973); City of New Orleans v. Treen, 421 So.2d 282, 285 (La. App. 4th Cir.1982); State v. Placid Oil Co., 274 So.2d 402, 414 (La.App. 1st Cir.1972).
Instead, a long line of cases following the same reasoning within this state forms jurisprudence constante. See Heinick v. Jefferson Par. Sch. Bd., 97-579, p. 4 (La.App. 5 Cir. 10/28/97), 701 So.2d 1047, 1050; City of New Orleans, 421 So.2d at 285. As summarized by this court in Johnson:
Johnson, 256 La. at 296, 236 So.2d at 218. Under the civilian tradition, while a single decision is not binding on our courts, when a series of decisions form a "constant stream of uniform and homogenous rulings having the same reasoning," jurisprudence constante applies and operates with "considerable persuasive authority." James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L.Rev. 1, 15 (1993). Because of the fact that "one of the fundamental rules of [the civil law tradition] is that a tribunal is never bound by the decisions which it formerly rendered: it can always change its mind," 1 Marcel Planiol, Treatise on the Civil Law § 123, (La.
In sum, the chief distinction between jurisprudence constante and stare decisis is this: "A single case affords sufficient foundation for the latter, while a series of adjudicated cases, all in accord, form the basis for the former." Yiannopoulos, supra, at § 35, p. 55. With these principles in mind, a survey of Louisiana's jurisprudence on this issue finds that Ducote, an opinion less than two years old, was the only decision in a nineteen-year history of jurisprudence in this state to require such a strict reading of the pollution exclusion.
History of Pollution Exclusions in Louisiana Courts
The litigation involving pollution exclusions has been relatively frequent over the years in Louisiana. The first Louisiana court to address the applicability of the exclusion was Connor v. Farmer, 382 So.2d 1069, 1070 (La.App. 4th Cir.1980). In Connor, the plaintiff was diagnosed with silicosis following years of exposure to sandblasting materials while on the job, and he subsequently sued his former employers' executive officers as well as their insurers. See id. at 1069. Within the insurance policy at issue in the case was a pollution exclusion clause similar to the one in this case, but the court found that the exclusion did not apply because the injury resulted from the failure to give proper equipment to Mr. Conner, not because of the discharge or escape of pollutants. See id. at 1069-70. More specifically, the court reasoned that the exclusion would be inapplicable "when the pollution is only one of two or more liability-imposing circumstances out of which the injury arises." See id. at 1070.
Similarly, five years later, the same court reversed a trial court's grant of summary judgment based on the pollution exclusion because a genuine issue of material fact remained as to whether the exclusion applied to the facts of the case. See Sellers v. Seligman, 463 So.2d 697, 702 (La. App. 4th Cir.1985). In doing so, the court rejected the literal reading of the pollution exclusion argued for by the insurance company and found:
In Thompson v. Temple, 580 So.2d 1133 (La.App. 4th Cir.1991), the court of appeal established the first true "test" in Louisiana to determine whether or not a pollution exclusion would prevent coverage to an insured. In Thompson, the plaintiffs were overcome one evening by carbon monoxide leaking from a bathroom heater in the home they rented from Katie Temple.
Later that year, the Fourth Circuit expanded on the test in West v. Board of Commissioners, 591 So.2d 1358 (La.App. 4th Cir.1991), in a case involving an investigator who sustained injury because of inhaling chemicals during an investigation into damaged containers of pesticide at his work. The plaintiffs employer was a warehousing company which had agreed to warehouse a pesticide even though some of the storage containers had earlier been damaged. See id. at 1359-60. The Fourth Circuit reasoned that when an insured only incidentally possesses a pollutant in the course of other business, the exclusion does not apply. See id. at 1360. Consequently, the court found that only when the insured is actually a "polluter" would the exclusion apply. See id. at 1361. The court remanded the case to the district court for a determination of that issue of fact. See id.
Similarly, this reasoning was followed in Crabtree v. Hayes-Dockside, Inc., 612 So.2d 249, 252-53 (La.App. 4th Cir.1992), where the defendant was found to be a "polluter" within the meaning of the policy because of his routine and regular transportation of polyvinyl chloride—the substance which caused the damage in the case. Finally, the Third Circuit adopted this reasoning and held that the pollution exclusion could only be enforced if an insured was an active industrial polluter who knowingly emitted pollutants over a period of time. See Avery v. Commercial U. Ins. Co., 621 So.2d 184, 190 (La.App. 3rd Cir. 1993).
Following Avery, this court gave its first interpretation of the application and meaning of the pollution exclusion in Louisiana. In South Central Bell Telephone Co. v. Ka-Jon Food Stores, Inc., 93-2926, p. 1 (La.5/24/94), 644 So.2d 357, 357, vacated on other grounds, (La.9/15/94), 644 So.2d 368, an underground gas tank at the Ka-Jon convenience store leaked and caused damage to subsurface telephone cables owned by South Central Bell.
After documenting the history of pollution exclusions, this court, in Ka-Jon, found that the exclusion in the case was ambiguous as a matter of law because a literal reading of the exclusion could lead
After rendition of the original opinion, State Farm applied for a rehearing arguing several matters. Following our grant of the rehearing application, but prior to oral argument, State Farm filed a "Motion to Vacate and Remand" asserting that the pollution exclusion interpreted in the original opinion may not have been part of the actual policy issued by State Farm to Ka-Jon. See id. 93-2926 at 2, 644 So.2d at 369 (on rehearing). Four months after rendering our original opinion, we vacated all prior judgments and remanded the matter to the district court to determine whether the pollution exclusion interpreted by the court was actually part of the policy. See id.
Despite the fact that Ka-Jon was vacated, its reasoning was adopted by several Louisiana courts following its release.
As pointed out above, Ducote departed from this line of jurisprudence and found that the exclusion was unambiguous and would apply "regardless of whether the release was intentional or accidental, a one-time event or part of an on-going pattern of pollution." Id. 98-0942 at 4-5, 730 So.2d at 437.
In her dissent in Ducote, Justice Kimball also concluded that the pollution exclusion clause was inapplicable under the facts of the case. See id. 98-0942 at 1, 730 So.2d at 438 (Kimball, J., dissenting). First, she found that the pollution exclusion was ambiguous, and therefore the policy should be read to effectuate, not deny, coverage. See id. 98-0942 at 3, 730 So.2d at 439 (Kimball, J., dissenting). Second, because a policy cannot be read in a manner so as to bring about absurd consequences, she reasoned that coverage should be found applicable. See id. 98-0942 at 4-5, 730 So.2d at 440 (Kimball, J., dissenting). Finally, Justice Kimball documented the history of the exclusion and pointed out that it was originally designed to exclude from coverage only that property and personal damage which resulted from traditional forms of pollution. See id. 98-0942 at 6, 730 So.2d at 441 (Kimball, J., dissenting). Consequently, Justice Kimball would have found that the exclusion did not preclude coverage to the claims of the Ducotes.
In light of the fact that Ducote represented a significant departure from the interpretation of pollution exclusion clauses in Louisiana, and, more importantly, because Ducote runs counter to the true intent of the exclusion, we overrule it at this time.
Position of Louisiana Commissioner of Insurance
We believe that a full discussion of the issue in this case would be wanting without
Following a three-year review of pollution exclusions in various comprehensive general liability policies, in 1997 (prior to Ducote), the Louisiana Department of Insurance issued an advisory letter designed to guide insurers in their application of the exclusions. See James H. Brown, Louisiana Commissioner of Insurance, Advisory Letter 97-01, p. 1 (June 4, 1997). The Commissioner noted:
Id. at 1-2 (footnotes omitted). The letter continued by advising insurers that (1) new pollution exclusions should be drafted to address "pollution risks actually posed" and (2) there must be "a reasonable basis for the application of the policy's pollution exclusion." Id. at 3.
Following our decision in Ducote, several insurers questioned whether the Department of Insurance had changed its position on the application of pollution exclusions:
James H. Brown, Louisiana Commissioner of Insurance, Preface to Advisory Letter 97-01, p. 1 (September 1999).
With the history and intent of the pollution exclusion in mind, we will now address the proper interpretation of these pollution exclusions under Louisiana law.
Proper Interpretation of the Total Pollution Exclusion
Ducote held that a pollution exclusion "applies regardless of whether
First, the determination of whether an insured is a "polluter" is a fact-based conclusion that should encompass consideration of a wide variety of factors. In making this determination, the trier of fact should consider the nature of the insured's business, whether that type of business presents a risk of pollution, whether the insured has a separate policy covering the disputed claim, whether the insured should have known from a read of the exclusion that a separate policy covering pollution damages would be necessary for the insured's business, who the insurer typically insures, any other claims made under the policy, and any other factor the trier of fact deems relevant to this conclusion.
Second, the determination of whether the injury-causing substance is a "pollutant" is also a fact-based conclusion that should encompass a wide variety of factors. As pointed out above, there are a variety of substances that could fall within the broad definition of irritants and contaminants as provided in this policy. For example, under pollution exclusions similar to the one at issue here, courts have found "pollutant" to include everything from asbestos, carbon monoxide, gasoline, lead paint, and some pesticides; on the other hand, some courts have found that "pollutants" do not include muriatic acid, styrene resins, and other forms of pesticide. See Russ, supra, at § 127:12 (collecting authorities). Consequently, when making this determination, the trier of fact should consider the nature of the injury-causing substance, its typical usage, the quantity of the discharge, whether the substance was being used for its intended purpose when the injury took place, whether the substance is one that would be viewed as a pollutant as the term is generally understood, and any other factor the trier of fact deems relevant to that conclusion.
Finally, the determination of whether there was "discharge, dispersal, seepage, migration, release or escape" is likewise a fact-based conclusion that must result after a consideration of all relevant
Turning to the court of appeal's ruling in this case on the motion for summary judgment filed by Genesis Insurance Co., we reverse the court of appeal, deny the motion, and remand the case to the district court.
Genesis's Motion for Summary Judgment
The Louisiana Code of Civil Procedure clearly provides that a motion for summary judgment shall be rendered if (1) there is no genuine issue of material fact in dispute and (2) the mover is entitled to judgment as a matter of law. See La.Code Civ. Pro. art. 966(B). Further, the mover has the burden of proving entitlement to summary judgment. See Hardy v. Bowie, 98-2821, p. 5 (La.9/8/99), 744 So.2d 606, 610. As an appellate court, we perform a de novo review of summary judgment rulings. See Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. Under the record before us, Genesis has failed to meet its burden of proving that there are no genuine issues of material fact as to whether St. Bernard Parish is a "polluter," if the hydrocarbons were "pollutants," or that there was a "discharge, dispersal, seepage, migration, release or escape" of the hydrocarbons in this case. Therefore, Genesis Insurance Company's motion for summary judgment will be denied.
In conclusion, Ducote is overruled, and we find that the proper interpretation of the total pollution exclusion in this case is that the exclusion was designed to exclude coverage for environmental pollution only and not for all interactions with irritants or contaminants of any kind. Accordingly, in determinating whether coverage for this incident is excluded by the total pollution exclusion, the district court should consider whether (1) St. Bernard Parish was a "polluter," (2) the hydrocarbons in the allegedly contaminated water were "pollutants," and (3) the distribution of the water through St. Bernard Parish's water system was a "discharge, dispersal, seepage, migration, release or escape," all within the meaning of the policy and its exclusion.
For the foregoing reasons, the decision of the court of appeal is reversed and the district court's ruling reinstated, denying Genesis Insurance Company's Motion for Summary Judgment. The case is remanded to the district court for further proceedings consistent with this opinion.
REVERSED; MOTION FOR SUMMARY JUDGMENT DENIED; REMANDED TO DISTRICT COURT.
TRAYLOR and KNOLL, JJ., dissent for reasons assigned by VICTORY, J.
VICTORY, J. (dissenting).
The majority today needlessly reverses a four-three decision rendered by this Court after much deliberation less than two years ago. The decision in Ducote v. Koch Pipeline Co., 98-0942 (La.1/26/99), 730 So.2d 432, was sound when rendered and is sound today, certainly as applied to the facts of this dispute.
We are all in agreement on the general rules of interpretation regarding contracts of insurance. An insurance policy is a contract between two parties and should be construed using the general rules of contract interpretation. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written and may make no further interpretation in search on the parties' intent. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024. An insurer owes a duty to defend the insured unless the claims made against the insured are clearly excluded from coverage in the policy. C.L. Morris, Inc. v. Southern American Ins. Co., 550 So.2d 828 (La.App. 2d Cir.1989).
In applying those principles, however, it is key to note that an insurer's initial decision as to whether the contract between the parties provides coverage for a given claim and/or requires it to defend the insured must be made at the outset of a case by comparing the particular claim or petition filed against the insured with the terms of the insured's policy. It is incumbent on the insurer to make a good faith determination on that issue in a timely fashion and to advise the insured of its determination. When a carrier decides that coverage for a particular claim is not afforded under the contract between the parties, that determination may be litigated by way of a declaratory judgment action or by motion for summary judgment brought by any of the interested parties.
When a coverage issue is presented on motion for summary judgment, the court must take care to restrict its review to the coverage issue at hand and not become unwittingly entangled in the merits of whether the prospective insured is or is not guilty of the conduct asserted against it. In this special type of summary judgement case, the court is to look at the face of the complaint, the facts alleged therein and the insurance contract at issue in reaching a determination as to whether there is a duty to defend and/or cover a claim. Where the petition alleges a claim and facts which, if true, are excluded from coverage, there is no obligation to defend or cover the claim against the insured. Jackson v. Lajaunie, 270 So.2d 859 (La. 1973); Alert Centre, Inc. v. Alarm Protection Services, Inc., 967 F.2d 161 (5th Cir. 1992).
In this case, Genesis filed a motion for summary judgment arguing that it provided no coverage to the Parish of St. Bernard for the claims asserted by the plaintiffs under the terms and conditions of the Commercial General Liability policy issued to the Parish. That policy contained an endorsement known as the "total pollution exclusion"
This insurance does not apply to:
An examination of the petition filed against the Parish demonstrates that the conduct claimed by the plaintiffs clearly and unambiguously falls within the ambit of the exclusion in question. There are no genuine issues of material fact in dispute as to the issue properly before us.
Plaintiffs clearly alleged that they were damaged because the Parish of St. Bernard supplied water to them that was "contaminated by chemicals and other contaminants and materials. ..." They pleaded, among other things, that the Parish negligently allowed waste water from refineries to enter into the Parish water system, then supplied residents with water contaminated by the waste water from those refineries, failed to monitor the intake of water into the Parish water system, failed to keep injurious substances out of the water supply, and thereby created a public health hazard.
It is respectfully suggested that the majority has fallen into error in this case primarily because it has failed to follow the proper methodology for reviewing the special type of summary judgment that presents a coverage issue. It has failed to review the "total pollution exclusion" relied upon by Genesis in the context of the allegations made in the complaint in this case against this insured.
Not a single line of the majority opinion is devoted to an analysis of the factual allegations made by the plaintiffs. Instead, the majority reviews the wording of the "total pollution exclusion" in a vacuum and concludes that the exclusion is ambiguous because it might lead to absurd consequences under some other hypothetical fact scenarios in some other cases. The majority cites Pipefitters Welfare Educ. Fund v. Westchester Fire Inc. Co., 976 F.2d 1037, 1043 (7th Cir.1992) to bolster its conclusion that a literal reading of the pollution exclusion might lead to absurd consequences in cases where a slip and fall might occur from spilled contents of a bottle of Drano or where an allergic reaction to chlorine in a swimming pool might occur. Were this court faced with such a difficult fact scenario, we might well decide that it is appropriate to review the "total pollution exclusion" as it might apply to those facts.
It is respectfully suggested that had the majority followed that fundamental rule, it would not have launched into unnecessary "interpretation" of the exclusion at issue, it would not have reversed our decision in Ducote, decided on very different facts, and it would not have rendered what amounts to an advisory opinion essentially rewriting the pollution exclusion and then setting out "fact-intensive" criteria that will make it virtually impossible to determine coverage issues by declaratory judgment or summary judgment at the outset of litigation, when they might properly be handled so that the parties can order their affairs and plan for the conduct or settlement of the litigation.
It should be noted that the majority has not directed us to a single case with a fact scenario even remotely similar to the one presented here in which any other state or federal court has concluded that the "total pollution exclusion" is ambiguous or does not apply on facts like those asserted in this case. Yet we need not look far to find a case similar to the one before us today. In Gregory v. Tenn. Gas Pipeline Co., 948 F.2d 203 (5th Cir.1991), a remarkably similar fact scenario was presented. The City of Natchitoches created and maintained a lake that provided a drinking supply for the City as well as fishing and recreational opportunities. Just as in this case, a neighboring industrial concern, Tennessee Gas Pipeline, discharged chemical contaminants into the lake. And just as in this case, numerous citizens brought suit against the City and its Waterworks District asserting various types of damages. The complaint asserted, inter alia, that the City "knew or should have known of the PCB contamination and was negligent in failing to detect the contamination, to warn plaintiffs of the contamination risks or to clean the lake." Id. at 204. The City had a Commercial General Liability policy with the same kind of pollution exclusion found in the Genesis policy we address in this case.
In Gregory, the Fifth Circuit first correctly noted that under Louisiana law, the pleadings alone determine whether the claims absolve the insurer of the broad duty to defend (as well as the duty to cover the claim). The City argued that the pollution complained of occurred upstream as a consequence of the action of Tennessee Pipeline, a third party. It argued that such pollution originating at another location should not fall within the exclusion. The Fifth Circuit refused to read into the "total pollution exclusion" any requirement that the pollution occur at the hands of the insured or that it originate at the insured's property; there was no such language in the policy. Referring to the City's argument the Fifth Circuit concluded, "This contention is sophistry." Id. at 207.
After carefully and properly considering the allegations of the plaintiffs' complaint with reference to the language of the "total pollution exclusion", Chief Judge Clarke upheld the district courts's summary judgment in favor of the insurer holding:
The Fifth Circuit's decision in Gregory, on facts strikingly similar to those presented here, is representative of the growing weight of authority holding that the "total pollution exclusion" is unambiguous and should be applied as written. Courts are increasingly concluding that the exclusion is clear and enforceable even in the face of some of the difficult fact scenarios discussed by the majority.
Fortunately, we do not deal here with a difficult case requiring creative interpretation. This case involves damages alleged by the plaintiffs to have occurred when an industrial water treatment plant (albeit operated by a governmental entity) took contaminated water out of the Mississippi River and introduced that water, still carrying allegedly hazardous chemical contaminants, into the residential drinking water supply of the Parish of St. Bernard. This is as classic a case of a petition alleging active pollution of an environmental character as any court receiving a declaratory judgment action or summary judgment action on coverage is ever likely to see. Had the majority compared the plain words of the total pollution exclusion to the allegations made by the plaintiffs in this case, rather than launching into an exiguous on hypothetical cases, there would have been no ambiguity found, nor any need to revisit Ducote or any other prior decisions of this court or the appellate courts of this state.
The majority essentially rewrites the exclusion and concludes that its application (which it evidently concedes is appropriate in at least some cases) must necessarily turn on three considerations.
The second consideration listed by the majority is that the injury-causing substance must be a "pollutant" within the meaning of the exclusion. The exclusion defines a "pollutant" as a contaminant, including chemicals. The plaintiffs' petition uses those exact terms in its allegation that the Parish introduced hazardous substances into the water supply.
The third consideration set forth by the majority is that there has to have been a dispersal of a pollutant within the meaning of the policy. Again, the plaintiffs clearly assert that the Parish dispersed contaminants throughout the Parish drinking water supply. Certainly that is an environmental concern, another factor the majority suggests as determinative. Thus, even under the considerations set forth by the majority, coverage must be excluded when the question is properly framed as to whether the allegations of the petition fall within the language of the exclusion.
Because the majority fails to appreciate the special nature of the type of summary judgment before us, it then embroiders further on the "three" enumerated coverage considerations and suggests that each cannot be determined until there is a fact finding concerning a whole host of issues, many of which may be relevant to ultimate liability, but would have been unknown and unknowable to the parties at the time of entry into the insuring contract.
Nor can the result reached by the majority today be properly tied to the history of the "total pollution exclusion" or to public policy. The "total pollution exclusion" was not adopted by the insurance industry to further public policy or to make sure that the environment is protected. It was written to narrow the coverage afforded in a CGL policy to protect insurers against catastrophic losses not covered by underwriting. It was written to make sure that insurance carriers would not go bankrupt (with the consequent possible effect on LIGA and like entities in other jurisdictions) and to protect the returns of their stockholders and monies due to other policy holders.
A CGL policy does not necessarily cover all risks that a business may incur, nor do businesses necessarily expect that. Insurance carriers (unless required to do so by a specific state statute) have no obligation to cover all risks within a single policy.
Businesses typically seek the advice of an insurance agent who assists in evaluating the insurance needs of the business so that the proper coverages are purchased in one or more complimentary policies. Such insurance professionals in turn secure professional liability insurance to insure against losses that may be caused because a client fails to buy appropriate coverages when proper advices on insuring the client's needs and coverages available are not given. In the area of insurance provided for municipalities and governmental entities, bids and bid specifications for the insurance desired are generally issued based on the advice of the governmental entities' internal or external insurance consultants. In a business climate especially, insurance carriers are entitled to rely on the businesses with whom they deal to assess their needs and purchase accordingly. In this case, we know that the Parish of St. Bernard had a $250,000 self-insured retention. Moreover, the public telephone directory discloses that it has an "insurance/risk management" office. It can hardly be characterized as an unsophisticated insured.
In sum, the policy language excluding coverage for pollution risks in this case is clear and unambiguous as applied to the facts pleaded by the plaintiffs in this case. A large body of case law exists in other jurisdictions holding that the total pollution exclusion is not ambiguous. We are dealing with an instance of industrial pollution allegedly caused by a Parish which may have been negligent and certainly can be expected to have understood the risk of introducing pollutants into the water system and the potential need for pollution coverage. The fact that its conduct may ultimately be determined to have been negligent rather than intentional is not relevant. Intentional acts are always excluded under general coverage principles. If the Parish was not at fault, it should escape liability altogether on the merits or at least by way of a third-party claim for indemnity. Its relative culpability on the merits, however, has nothing to do with the coverages it did or did not purchase pursuant to the contract of insurance at issue here.
The legislature of this state has recently expressed its will that summary judgment proceedings are designed to secure the just, speedy, and inexpensive determination of actions, that such proceedings are favored, and that they should be construed to accomplish these ends. La.Code Civ. P. art. 966 (amended 1997). The result reached by the majority today effectively rejects that standard and virtually eliminates the prospect of ever resolving coverage cases such as the case at bar by summary judgment. I cannot agree with this result.
Accordingly, I respectfully dissent.
National U. Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 519 n. 3 (Tex.1995).
In fact, the standard explanatory memorandum to regulatory boards on these pollution exclusions stated:
Nancer Ballard & Peter Manus, Clearing Muddy Waters: Anatomy of the Comprehensive General Liability Pollution Exclusion, 75 Cornell L.Rev. 610, 626 (1990) (quoting Insurance Rating Bd., Submission to Ins. Comm'r of W.Va. (May 18, 1970) and citing Insurance Rating Bd., Submission to Kansas Ins. Dept. (May 18, 1970); Mutual Ins. Rating Bur., Submission to Ins. Dept. of N.Y. (July 29, 1970); Insurance Rating Bd., Submission to Ohio Ins. Dept. (May 8, 1970)). Additionally, we cannot ignore the statements made by the Insurance Ratings Board to the Georgia Insurance Department when the pollution exclusion was considered for approval by that agency:
New Castle County v. Hartford Acc't and Indem. Co., 933 F.2d 1162, 1198 n. 65 (3rd Cir.1991) (quoting Letter from R. Stanley Smith, Manager of the IRB, to the Georgia Insurance Dept. dated June 10, 1970).