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Farm Family Casualty Co. v. Cumberland Insurance Co. Inc.

Superior Court of Delaware, Kent

October 2, 2013

FARM FAMILY CASUALTY COMPANY, As Subrogee of M. Virginia Richardson and As Assignee of KNICELEY'S INC., Plaintiff,
v.
CUMBERLAND INSURANCE COMPANY, INC., a foreign corporation, DOWNES INSURANCE ASSOCIATES, INC., a Delaware corporation, HARRINGTON INSURANCE AGENCY, INC., Individually and as successor-in-interest to Downs Insurance Associates, Inc., and Marve AGENCY, INC., a Delaware corporation, Defendants.

Submitted: June 6, 2013

Upon Consideration of Defendant Cumberland's Motion For Summary Judgment GRANTED

Michael R. Abbott, Esq., and David C. Malatesta, Esq., Kent & McBride, Wilmington, Delaware. Attorneys for Plaintiffs.

Krista R. Samis, Esq., Eckert, Seamans, Cherin & Mellott, Wilmington, Delaware. Attorney for Defendant Marvel Agency, Inc.

Kashif I. Chowdhry, Esq, Parkowski, Guerke & Swayze, Dover, Delaware. Attorney for Defendant Downes Insurance Associates, Inc.,

James S. Yoder, Esq., and Sean A. Meluney, Esq., White & Williams, Wilmington, Delaware. Attorneys for Defendant Harrington Insurance Agency.

Stephen P. Casarino, Esq., Casarino, Christman, Shalk, Ransom & Doss, Wilmington, Delaware. Attorney for Cumberland Insurance Company.

OPINION

VAUGHN, President Judge

This motion involves a dispute with an insurer regarding a total pollution exclusion clause contained in a commercial general liability policy. The insurer, defendant Cumberland Insurance Co. ("Cumberland"), relied on the exclusion when it denied coverage for a negligence lawsuit filed against its insured. The lawsuit alleged that the insured negligently failed to remove lead paint from a residence, resulting in injuries to a child. In the case sub judice, plaintiff Farm Family Casualty Insurance Co. ("Farm Family" or "Plaintiff") asserts, among other things, that Cumberland was wrong to deny coverage because the total pollution exclusion does not apply to lead-based injuries. Before the Court is Cumberland's motion for summary judgment.

FACTS

As mentioned, the precursor to this action was an underlying lawsuit where a child, Jose LaTorre ("LaTorre"), suffered serious personal injuries and impairment caused by lead poisoning.[1] The child's injuries resulted from exposure to lead paint located within a rental property owned by M. Virginia Richardson ("Richardson").

In November 2004, it was discovered that LaTorre had an elevated blood-lead level. On December 13, 2004, after an inspection of the home indicated the presence of lead-based paint, the Delaware Division of Public Health ordered Richardson to reduce the levels of lead paint present on the property to bring them into compliance with state standards. Richardson hired Kniceley's, Inc. ("Kniceley"), a licensed lead abatement company, to handle the situation. According to the agreement between Richardson and Kniceley, the company was required to:

(1) remove all windows and doors, strip all paint and reinstall; (2) abate or encapsulate all friction points on window wells, aprons and doorway frames; (3) strip all baseboards and stairways (newel post, stingers, spindles) and lead blocked; (4) window sills inside and outside were to be stabilized; (5) the laundry room was to be stripped of lead paint and lead blocked; (6) Kniceley was also to address all items listed on lead report; (7) remove all hazardous waste on a daily basis; and (8) Batta Environmental Associates, Inc. ("Batta")[2] was to perform dust wipes to ensure the Premises was lead free following the completion of Kniceley's responsibilities.[3]

Kniceley performed the work in February and March of 2005, and on March 11, 2005, subcontractor Batta informed Richardson that the work had been completed and that the premises had been "cleared for lead dust."[4] On August 30, 2005, LaTorre again tested positive for high blood-lead levels.[5] The State's subsequent inspection confirmed that lead dust and paint were still present in the house.

A representative of LaTorre filed a lawsuit against Richardson on May 11, 2006. Richardson filed a third-party complaint against Kniceley and Batta on May 20, 2008 that sought contribution for their negligent failure to properly remove the lead-based paint from her home, resulting in injuries to LaTorre. It is not clear from LaTorre's complaint, Richardson's complaint or from the record now before the Court exactly how LaTorre was injured by the lead paint—i.e. whether he ingested paint chips, inhaled lead dust or was exposed to the lead in some other way.

From November 11, 2004 to November 11, 2005, Kniceley was the named insured under a commercial general liability insurance policy issued by Cumberland (the "Policy").[6] The Policy provides:

We 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. We will have the right and duty to defend the insured against any "suit" seeking those damages[.]
This insurance applies to "bodily injury" or "property damage" only if . . . [t]he "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory" [and] [t]he "bodily injury" or "property damage" occurs during the policy period.[7]

The parties do not dispute that Richardson's claim against Kniceley falls within the scope of the Policy's general coverage provisions. Thus, Cumberland was required to provide coverage to Kniceley for Richardson's ...


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