REBECCA BEACH SMITH, District Judge.
This case comes before the court on the defendant insurers', Citizens Insurance Company of America ("Citizens") and Hanover Insurance Company ("Hanover"), Motion for Partial Summary Judgment ("Motion"), filed February 1, 2011. See Docket # 31. For the reasons which follow, the court GRANTS the insurers' Motion.
This Opinion once again concerns the installation of Chinese drywall at two developments in the Hampton Roads area, Cromwell Park at Salem ("Cromwell Park") and The Hampshires at Greenbriar ("The Hampshires"). These housing developments were built by Dragas Management Corp. ("DMC"). As general contractor, DMC executed a subcontract agreement with Porter-Blaine Corp. ("Porter-Blaine")/ a local drywall contractor, for the provision and installation of the drywall in all the units at both developments. Some of the drywall Porter-Blaine procured and installed at The Hampshires and Cromwell Park was manufactured in China. The Chinese drywall was installed in seventy-four (74) of the
The Chinese drywall contained levels of elemental sulfur approximately three hundred seventy-five (375) times greater than representative samples of domestic drywall. As a result, it caused property damage to the homes by damaging and corroding metal components, including HVAC coils, wiring, copper piping, and electronics. For example, the houses with Chinese drywall experienced a failure rate of over thirty percent (30%) of the air conditioning coils. By contrast, in homes with domestic drywall, the failure rate was less than one percent (1%). Homes with Chinese drywall exhibited pitting of copper piping, blackening of wiring, and corrosion of metal objects inside the home. In addition, many homeowners reported a bad, rottenegg smell. All parties agree that the source of the corrosion and damage was reduced sulfur gases, including hydrogen disulfide, carbon disulfide, and carbonyl sulfide.
DMC discovered the problem with the Chinese drywall in early 2009 and requested that Porter-Blaine remediate all the damage to the homes and replace the drywall. Porter-Blaine refused, and DMC undertook the remediation at its own cost, removing and replacing the drywall, the affected structural components, and the damaged personal property.
During the relevant time period, Porter-Blaine carried both commercial general liability (CGL) insurance and an umbrella excess liability (umbrella) policy. Porter-Blaine's CGL policy, policy number ZBR 7905525, was provided by Citizens.
Porter-Blaine's umbrella policy, policy number UHR 7917898, was provided by Hanover.
Both the Citizens and Hanover policies contained certain exclusions from coverage. Importantly for this case, the 2007-2008 and 2008-2009 Citizens CGL policies, as well as all the Hanover umbrella policies, contained an absolute pollution exclusion. The two Citizens policies in question excluded from coverage:
See Mem. Supp. Mot. Summ. J., Ex. 1, Makimoto Decl., Ex. 1-C & Ex. 1-D (2007-2008 & 2008-2009 Citizens CGL policies). "Pollutants" is defined as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed." Id.
The 2005-2006 Hanover umbrella policy excluded from coverage:
See Mem. Supp. Mot. Summ. J., Ex. 2, Makimoto Decl., Ex. 2-C (2005-2006 Hanover umbrella policy). "Pollutants" is defined as "any solid, liquid, gaseous or thermal irritant or containment, including but not limited to smoke, vapor, soot, fumes, acids, alkalis, chemicals, radioactive materials, hazardous biological agents or waste. Waste includes materials to be recycled, reconditioned or reclaimed." Id.
The 2006-2007, 2007-2008, and 2008-2009 Hanover umbrella policies excluded from coverage:
See Mem. Supp. Mot. Summ. J., Ex. 2, Makimoto Decl., Ex. 2-D 2-E, & 2-F (2006-2007, 2007-2008, & 2008-2009 Hanover umbrella policies). "Pollutants" is defined as "any solid, liquid, gaseous or thermal irritant or containment, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed." Id. "Pollution cost or expense" is defined as:
Id. Overall, then, the policies define "pollutants" in the same way
On November 3, 2010, DMC filed suit in this court under diversity jurisdiction, seeking to enforce the $4,900,000 arbitration award against Porter-Blaine's insurers. Citizens and Hanover filed the instant Motion on February 1, 2011. DMC
Summary judgment is appropriate when a court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir. 1985). A party opposing a motion for summary judgment may not rest on the pleadings alone, but must instead show that "specific, material facts exist that give rise to a genuine triable issue." Hagan v. McNallen (In re McNallen), 62 F.3d 619, 623-24 (4th Cir.1995). In essence, the nonmovant must present evidence "on which a [trier of fact] could reasonably find" for the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Such facts must be presented in the form of exhibits and sworn affidavits. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir.1993) ("A motion for summary judgment may not be defeated by evidence that is `merely colorable' or `is not sufficiently probative.'" (quoting Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505)).
On summary judgment, the court is not to "weigh the evidence and determine the truth of the matter." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, a failure by a plaintiff to rebut a defendant's motion with sufficient evidence will result in summary judgment when appropriate. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (finding district courts have an "affirmative obligation ... to prevent `factually unsupported claims and defenses' from proceeding to trial." (citing Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548)).
Citizens and Hanover have moved for partial summary judgment, seeking a declaration that the Citizens CGL policies for the periods of 2007-2008 and 2008-2009, as well as all the Hanover umbrella policies, bar recovery of the judgment for the costs of remediating the property damage to the homes because of the absolute pollution exclusion. The insurers argue that the exclusion is non-ambiguous and clearly prevents coverage for damage to the homes caused by the reduced sulfur gases from the defective drywall. DMC responds with three contentions: (1) the exclusion is ambiguous and should be construed against the insurer; (2) the exclusion is substantively unreasonable and should be construed in favor of coverage;
Turning first to the issue of ambiguity, the court must initially determine whether all of the exclusions in the different policies may be construed together or if any substantive difference requires them to be interpreted individually. The two Citizens CGL policies at issue, as well as the 2006-2007, 2007-2008, and 2008-2009 Hanover umbrella policies, all contain the same language, and thus there is no question that they may be interpreted together. The one policy that contains different language is the 2005-2006 Hanover umbrella policy. Where all of the other policies provide that what is excluded is "`Bodily 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 2005-2006 Hanover umbrella policy excludes "[a]ny liability or expense arising out of or contributed to in any way by the actual, alleged or threatened discharge, dispersal, seepage, migration, release, escape or existence of pollutants at any time in any location." Compare, e.g., Mem. Supp. Mot. Summ. J., Ex. 2, Makimoto Decl., Ex. 2-D, 2-E, & 2-F (2006-2007, 2007-2008, & 2008-2009 Hanover umbrella policies) to Mem. Supp. Mot. Summ. J., Ex. 2, Makimoto Decl., Ex. 2-C (2005-2006 Hanover umbrella policy) (emphasis added). Thus, the 2005-2006 Hanover policy in question is broader than the other absolute exclusions, because the harm is not limited to "bodily injury" or "property damage" but instead includes "any liability or expense." The part of the exclusion dealing with causation appears to be materially the same, because the 2005-2006 Hanover policy denies coverage for any injury "contributed to in any way" by pollutants, while the rest of the policies deny coverage for injury caused "in whole or in part" by the "actual, alleged, or threatened" release of pollutants. Therefore, the court concludes, as an initial matter, that all of the exclusions in the various policies may be considered together, because, if an injury is excluded under the standard language of all the policies, except the 2005-2006 Hanover umbrella policy, then it would certainly be so excluded under that policy given its greater breadth.
Virginia law is well-settled with regard to the interpretation of insurance contracts and exclusions, and this court sitting in diversity is bound to apply it.
City of Chesapeake v. States Self-Insurers Risk Retention Grp., Inc., 271 Va. 574, 628 S.E.2d 539, 541 (2006).
Under Virginia law, a term of a contract is considered ambiguous "when it may be understood in more than one way or when it refers to two or more things at the same time." Granite State Ins. Co. v. Bottoms, 243 Va. 228, 415 S.E.2d 131, 134 (1992). An exclusion is not considered ambiguous merely because the parties disagree as to its meaning, Plunkett v. Plunkett, 271 Va. 162, 624 S.E.2d 39, 42 (2006), nor does the conclusion reached by other jurisdictions as to ambiguity have any bearing on the question under Virginia law. City of Chesapeake, 628 S.E.2d at 541-42. Thus, Virginia law construes the contract strictly to effectuate the intentions of the parties, giving terms their plain meaning, and declining to read in an ambiguity or meaning the parties did not intend. Floyd v. Northern Neck Ins. Co., 245 Va. 153, 427 S.E.2d 193, 196 (1993); see also Firemen's Ins. Co. of Washington, D.C. v. Kline & Son Cement Repair, Inc., 474 F.Supp.2d 779, 788 (E.D.Va.2007) ("Virginia strictly adheres to the `plain meaning' rule: where an agreement is complete on its face and is plain and unambiguous in its terms, the court is not at liberty to search for its meaning beyond the instrument itself because the writing is the repository of final agreement between the parties." (internal quotation marks and citation omitted)). However, in interpreting exclusions to insurance coverage, the burden is on the insurer to prove the exclusion applies, and courts are to construe the terms of exclusions strongly against the insurer. Transcon. Ins. Co. v. RBMW, Inc., 262 Va. 502, 551 S.E.2d 313, 318 (2001).
The court thus turns to the interpretation of the exclusion in question and the question of whether it is ambiguous. This case is not the first to present this issue for determination as regards the pollution exclusion under Virginia law; indeed it is not even the first to do so in this district with regard to the exclusion's application to Chinese drywall. See Nationwide Mut. Ins. Co. v. Overlook, L.L.C., 785 F.Supp.2d 502, 2011 WL 1988396 (E.D.Va. May 13, 2011) (Davis, J.); TRAVCO Ins. Co. v. Ward, 715 F.Supp.2d 699 (E.D.Va.2010) (Doumar, S.J.); see also Proto v. Futura Grp., L.L.C., No. CL09-2455, slip. op., 2011 WL 2595637 (Va.Cir.Ct. May 6, 2011). Initially, and while the court does not find it decisive, the court notes that in all the cases it located that concern the pollution exclusion, no court, save one, the weight of which precedent is in question, has ever found the exclusion ambiguous.
The leading case on the pollution exclusion is the Virginia Supreme Court's decision in City of Chesapeake, 628 S.E.2d 539. In that case, a group of women sued the City of Chesapeake, claiming that exposure to trihalomethanes ("THMs") in the water supply caused them to have miscarriages. The case initially went before the Virginia Supreme Court on liability, and the court held that the suit was barred by sovereign immunity. The City then sought to recover the cost of its substantial legal fees spent litigating that case from its insurer. The City's insurer argued that recovery was barred by the pollution exclusion
DMC argues that City of Chesapeake does not resolve the pollution exclusion issues in this case and instead provides only minimal guidance because it does not speak to whether the pollution exclusion extends to all pollution or to only traditional environmental pollution. In essence, DMC claims that because City of Chesapeake concerned a chemical in the water supply, which would be considered traditional, large-scale environmental pollution, the case offers no guidance here where the type of harm is different than normal environmental pollution.
Given that conclusion, DMC argues that if that is the case, then the pollution exclusion is overly broad and thus ambiguous such that it should be construed against the insurers. In making this argument, DMC relies on two Virginia Supreme Court cases, Virginia Farm Bureau Mutual Insurance Co. v. Williams, 278 Va. 75, 677 S.E.2d 299 (2009), and Granite State Insurance Co. v. Bottoms, 243 Va. 228, 415 S.E.2d 131 (1992), as well as a
In Williams, the Virginia Supreme Court again found a policy ambiguous and construed it in favor of coverage. In that case, the issue was the amount recoverable under an auto insurance policy that provided two different limits of the amount recoverable per person per accident. The court held that the "disparity in the stated limits of liability for `each person' manifests an ambiguity regarding the extent of the total coverage for `each person' under the policy." Williams, 677 S.E.2d at 303. Thus, given the internal inconsistency in the policy, the court construed it in favor of the higher amount.
This court finds neither of these cases on point with the facts here. First, contrary to DMC's argument, the court does not find that the pollution exclusion is so broad as to be ambiguous. The exclusion itself provides no coverage for "`bodily 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," though DMC's main quarrel seems to be with the definition of "pollutant" itself: "any-solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." The court, like the other Virginia courts to consider this issue, finds that the definition of pollutant is plain, unambiguous, and not overly broad.
Therefore, this court finds that the absolute pollution exclusion is not ambiguous and will enforce the plain meaning of its terms.
As this court will enforce the pollution exclusion as written, the next question to be addressed is whether the Chinese drywall under these facts was a "pollutant" as defined by the policy. Citizens and Hanover argue that the drywall was the source of the reduced sulfur gases which were a pollutant because they were a contaminant, as evidenced by the damage they inflicted on the homes. DMC responds that drywall, which is made out of gypsum, is a naturally occurring substance that often can contain sulfur. Thus, it is not a pollutant, because it is used every day around the country to build houses.
"Pollutant" is defined in the policies as "any solid, liquid, gaseous or thermal irritant or containment, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed." See Mem. Supp. Mot. Summ. J., Ex. 1, Makimoto Decl., Ex. 1-C & Ex. 1-D (2007-2008 & 2008-2009 Citizens CGL policies); id., Ex. 2, Makimoto Decl., Ex. 2-D, 2-E, & 2-F (2006-2007, 2007-2008, & 2008-2009 Hanover umbrella policies).
At the outset, the court agrees with DMC that drywall itself, no matter where
Likewise, courts considering whether reduced sulfur gases are pollutants have looked to their effects. Overlook found that the gases were both irritants and contaminants because they caused health issues in the inhabitants of the homes where the Chinese drywall was installed, as well as extensive property damage to the homes. Overlook, 785 F.Supp.2d at 530-31, 2011 WL 1988396, at *26. TRAVCO employed this same reasoning. TRAVCO, 715 F.Supp.2d at 718.
Therefore, the court finds that the reduced sulfur gases from the drywall were a pollutant under the policies.
The final issue the court must decide is whether the pollutant reduced sulfur gases were the result of discharge, dispersal, seepage, migration, release or escape. Citizens and Hanover argue that this is a question with an obvious answer: If the parties agree that the drywall had elevated levels of elemental sulfur, that the drywall
The policy does not define "discharge, dispersal, seepage, migration, release or escape," so the court again looks to the ordinary meaning of the words to interpret the policy, as have the other Virginia courts to consider this issue. E.g., Overlook, 785 F.Supp.2d at 518-19, 2011 WL 1988396, at *13; Kline, 474 F.Supp.2d at 798. Of the terms relevant to this case, "discharge" means "to relieve of a charge, load, or burden," Webster's Third New International Dictionary 644, "disperse" means "to cause to break up and go in different ways," id. at 653, and "release" means "to set free from restraint, confinement, or servitude," id. at 1917. Each of these terms carries some element of movement.
In its response to the insurers' Motion, DMC submitted as an exhibit the report of Gerald 0. Davis, P.E. See Mem. Opp. Mot. S.J. Ex. 2, Docket # 56. Mr. Davis is an expert hired by DMC to investigate the causes of the property damage at the two developments. In his report, Mr. Davis concluded that the damage to the homes was traceable to the Chinese drywall and was caused by reduced sulfur compounds. Id. at 12. In addition, the parties, as recounted above, agreed that the Chinese drywall was defective and caused the damage. The court, therefore, finds this to be a clear case of dispersal, discharge, or release. While it is not certain the exact process by which the elemental sulfur moved from the drywall into the atmosphere in gas form, it is clear that somehow it did so move. When the parties agree that the source of the sulfur was the drywall and that the reduced sulfur gases caused the damage, there is no need to go through the academic exercise of determining the exact method of mobility when it is clear that the sulfur, somehow, moved out of the drywall and into the air.
Therefore, in sum, the court finds the pollution exclusion is not ambiguous and the reduced sulfur gases in this case were a pollutant that dispersed into the atmosphere causing the property damage. Recovery under the 2007-2008 and 2008-2009 Citizens CGL policies and all of the Hanover excess policies is thus barred by the exclusion.
Accordingly, the court