City of Delray Beach v. Agricultural Insurance

United States Court of Appeals,

Eleventh Circuit.

No. 95-4284.

CITY OF DELRAY BEACH, FLORIDA, Plaintiff-Counter Defendant-
Appellant,

Lawrence A. Razette, John J. Razette, Intervenor-Plaintiffs,

v.

AGRICULTURAL INSURANCE CO., Mission Insurance Co., Mission
National Insurance Co., Mission American Insurance Co., Aetna
Casualty & Surety Co., Hartford Accident and Indemnity Co., Century
Indemnity Company, Continental Insurance Company, Pacific Employers
Insurance Co., American Centennial Insurance Co., Universal
Security Insurance Co., Mutual Fire, Marine & Inland Insurance Co.,
Defendants-Intervenor Defendants-Appellees,

Illinois Insurance Exchange, Transco Syndicate # 1, Ltd.,
Defendants-Intervenor-Defendants Counter-Claimants-Appellees.

June 25, 1996.

Appeal from the United States District Court for the Southern
District of Florida (No. 91-8281-CV-SM), Stanley Marcus, Judge.

Before HATCHETT, Circuit Judge, FAY, Senior Circuit Judge, and
WOOD*, Senior Circuit Judge.

HATCHETT, Circuit Judge:

We affirm for all the reasons stated in the district court's

order dated September 9, 1994, granting summary judgment in favor

of the appellees and against the City of Delray Beach. We attach

the order as an "Appendix."

APPENDIX

CITY OF DELRAY BEACH, Plaintiff,

v.

AGRICULTURAL INSURANCE COMPANY, MISSION INSURANCE COMPANY, AETNA
CASUALTY AND SURETY COMPANY, HARTFORD ACCIDENT AND INDEMNITY

*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
COMPANY, ILLINOIS INSURANCE EXCHANGE, CALIFORNIA INSURANCE COMPANY,
CONTINENTAL INSURANCE COMPANY, PACIFIC EMPLOYERS INSURANCE COMPANY,
AMERICAN CENTENNIAL INSURANCE COMPANY, UNIVERSAL SECURITY INSURANCE
COMPANY, MUTUAL FIRE, MARINE & INLAND INSURANCE COMPANY, AND
TRANSCO SYNDICATE # 1, LTD., Defendants.

CASE NO. 91-8281-CIV-MARCUS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

ORDER

THIS CAUSE comes before the Court upon (1) Defendant Transco

Syndicate # 1, Ltd. and Illinois Insurance Exchange's (collectively

"Transco Syndicate") motion for summary judgment, filed July 6,

1992; and (2) California Union Insurance Company's ("California

Union") motion for summary judgment, filed on November 18, 1993.

As to the first motion, United States Magistrate Judge Stephen T.

Brown, upon an order of reference, issued a Report and

Recommendation on September 27, 1993, recommending that Transco

Syndicate's motion for summary judgment be granted. Plaintiff, the

City of Delray Beach, timely filed an objection to the Report and

Recommendation. Among a number of issues raised in the motions,

the parties present the following issue of first impression under

Florida law: whether the "personal injury endorsements" contained

in the Defendants' comprehensive general insurance policies provide

coverage for the environmental contamination that occurred in this

case. For the reasons that follow, we conclude, as a matter of

law, that the moving parties' CGL policies do not provide such

coverage under Florida law. Accordingly, Transco Syndicate's

motion for summary judgment is GRANTED and California Union

Insurance Company's motion for summary judgment is GRANTED.

I.
 The factual and procedural background of the motions for

summary judgment filed in this matter are not in dispute. On April

21, 1988, in a separate action, the City of Delray Beach brought

suit in the Circuit Court of the Fifteenth Judicial Circuit in and

for Palm Beach County, Florida, against a number of defendants for

allegedly polluting the city's water supply. See City of Delray

Beach v. Aero-Dri Corp., et al., Case No. 88-3672-AJ. It appears

that the Defendants failed to dispose of their waste solvents at a

proper disposal facility and polluted the ground water through the

discharge of those solvents. The City of Delray Beach alleged a

continuous and systematic pattern of improper waste disposal and

contamination of the city's drinking water. A jury returned a

verdict in the case for the City in the amount of $8,697,488.00 for

past and future compensatory damages.

The City of Delray Beach now brings this cause of action

against numerous insurers, alleging that these insurance companies

provided various amounts of coverage to the defendants in the

underlying state court action. Three of the defendant insurance

companies here have filed motions for summary judgment arguing that

as a matter of law their insurance policies do not provide coverage

for the cause of action in the underlying state case. Defendants

Transco Syndicate # 1, Ltd., and Illinois Insurance Exchange

jointly wrote three commercial general liability insurance policies

insuring two of the defendants in the underlying state court

action: (1) Policy # DOL02250, providing primary coverage of

$500,000 for the period of October 1, 1985 through October 1, 1986;

(2) Policy # DOL07567, providing primary coverage of $1,000,000 for
the period of October 1, 1986 through October 1, 1987; and (3)

Policy # DOL104251, providing excess coverage of $1,000,000 for the

period of October 1, 1987, through October 1, 1988. California

Union issued one policy that is at issue in this case, Policy No.

2204 EPO 01287, providing coverage for a policy period from October

1, 1987 through October 1, 1988.

Transco Syndicate and California Union have filed separate

motions for summary judgment asking this Court to find, as a matter

of law, that they do not owe any coverage under the above-stated

insurance policies to the City of Delray Beach for liability

incurred by the defendants in the underlying state court action.

In short, the insurance companies argue that the "pollution

exclusion clauses" contained in their respective comprehensive

general liability insurance policies preclude coverage to their

insureds for any liability for the environmental contamination that

occurred in this case. Plaintiff has responded that Transco

Syndicate and California Union are liable on the following

independent grounds: (1) the pollution exclusion clauses contained

in the comprehensive general liability insurance policies do not

preclude coverage to the insureds for the environmental

contamination that occurred in this case; and (2) that even if the

pollution exclusion clauses do generally preclude coverage, the

insurance companies separately owe coverage under "personal injury

endorsements" contained in each of the policies.

Procedurally, this Court referred Transco Syndicate's motion

for summary judgment to United States Magistrate Judge Stephen T.

Brown for a Report and Recommendation. Based upon the Supreme
Court of Florida's recent ruling in Dimmitt Chevrolet, Inc. v.

Southeastern Fidelity Insurance Corp., 636 So.2d 700 (Fla.1993),

reh'g denied, March 31, 1994, the Magistrate Judge issued a Report

and Recommendation in which he recommended that the motion for

summary judgment be granted in favor of the Defendants as to both

theories of recovery that the Plaintiff had asserted. We now

consider both motions for summary judgment together.

II.

The standard to be applied in reviewing summary judgment

motions is stated unambiguously in Rule 56(c) of the Federal Rules

of Civil Procedure:

The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.

It may be entered only where there is no genuine issue of material

fact. Moreover, the moving party has the burden of meeting this

exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

In applying this standard, the Eleventh Circuit has explained:

In assessing whether the movant has met this burden, the
courts should view the evidence and all factual inferences
therefrom in the light most favorable to the party opposing
the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608;
[Environmental Defense Fund v.] Marsh, 651 F.2d [983] at 991
[ (5th Cir.1981) ]. All reasonable doubts about the facts
should be resolved in favor of the non-movant. Casey
Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602
(5th Cir.1981). If the record presents factual issues, the
court must not decide them; it must deny the motion and
proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture
& Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211,
1213 (5th Cir.1969). Summary judgment may be inappropriate
even where the parties agree on the basic facts, but disagree
about the inferences that should be drawn from these facts.
 Lighting Fixture & Elec. Supply Co., 420 F.2d at 1213. If
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.
Impossible Electronics [Techniques, Inc. v. Wackenhut
Protective Systems, Inc.], 669 F.2d [1026] at 1031 [ (5th
Cir.1982) ]. Croley v. Matson Navigation Co., 434 F.2d 73, 75
(5th Cir.1970).

Moreover, the party opposing a motion for summary
judgment need not respond to it with any affidavits or other
evidence unless and until the movant has properly supported
the motion with sufficient evidence. Adickes v. S.H. Kress &
Co., 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at
991. The moving party must demonstrate that the facts
underlying all the relevant legal questions raised by the
pleadings or otherwise are not in dispute, or else summary
judgment will be denied notwithstanding that the non-moving
party has introduced no evidence whatsoever. Brunswick Corp.
v. Vineberg, 370 F.2d 605, 611-12 (5th Cir.1967). See Dalke
v. Upjohn Co., 555 F.2d 245, 248-49 (9th Cir.1977).

Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368-69 (11th

Cir.1982); see also Amey, Inc. v. Gulf Abstract & Title, Inc., 758

F.2d 1486, 1502 (11th Cir.1985), cert. denied, 475 U.S. 1107, 106

S.Ct. 1513, 89 L.Ed.2d 912 (1986).

The United States Supreme Court has recently provided

significant additional guidance as to the evidentiary standard

which trial courts should apply in ruling on a motion for summary

judgment:

[The summary judgment] standard mirrors the standard for a
directed verdict under Federal Rule of Civil Procedure 50(a),
which is that the trial judge must direct a verdict if, under
the governing law, there can be but one reasonable conclusion
as to the verdict. Brady v. Southern R. Co., 320 U.S. 476,
479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.

2505, 2511, 91 L.Ed.2d 202 (1986). The Court in Anderson further

stated that "[t]he mere existence of a scintilla of

APPENDIX—Continued

evidence in support of the position will be insufficient; there
must be evidence on which the jury could reasonably find for the

[non-movant]." Id at 252, 106 S.Ct. at 2512. In determining

whether this evidentiary threshold has been met, the trial court

"must view the evidence presented through the prism of the

substantive evidentiary burden" applicable to the particular cause

of action before it. Id at 254, 106 S.Ct. at 2513. If the

non-movant in a summary judgment action fails to adduce evidence

which would be sufficient, when viewed in a light most favorable to

the non-movant, to support a jury finding for the non-movant,

summary judgment may be granted. Id at 254-55, 106 S.Ct. at 2513-

14.

In another recent case, the Supreme Court has declared that a

non-moving party's failure to prove an essential element of a claim

renders all factual disputes as to that claim immaterial and

requires the granting of summary judgment:

In our view, the 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. In such a
situation, there can be "no genuine issue as to any material
fact," since a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party is
"entitled to judgment as a matter of law" because the
nonmoving party has failed to make a sufficient showing on an
essential element of her case with respect to which she has
the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,

2552-53, 91 L.Ed.2d 265 (1986).

III.

A.

Under Florida law, a number of general rules govern our
interpretation of the insurance policies in question, particularly

as to whether any ambiguities exist in the policies' language. To

begin, where the essential facts of the case are not in dispute, it

is appropriate for the district court to interpret an insurance

contract to determine whether any ambiguities exist as to coverage

as a matter of law. Gulf Tampa Drydock Co. v. Great Atlantic Ins.

Co., 757 F.2d 1172, 1174 (11th Cir.1985) (applying Florida law)

(determined on motion for summary judgment); Jones v. Utica Mut.

Ins. Co., 463 So.2d 1153 (Fla.1985) (interpretation of policy

appropriate where no dispute over the facts). An "ambiguity"

exists in an insurance policy only when a term or provision in that

policy is susceptible to two or more differing, reasonable

interpretations—one resulting in coverage and one resulting in

exclusion. Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d

1379, 1381 (11th Cir.1993) (applying Florida law) (citing Weldon v.

All Am. Life Ins. Co., 605 So.2d 911, 915 (Fla. 2d DCA 1992)).

Furthermore, this Court must interpret the provisions at issue

in an insurance policy in the context of the entire policy. As the

Eleventh Circuit has observed:

[i]n Florida, a court must construe every insurance contract
according to the entirety of its terms and conditions. A
court should construe each sentence in connection with other
provisions of the policy to arrive at a reasonable
construction that accomplishes the intended purpose of the
parties. Haenal v. United States Fidelity & Guar. Co., 88
So.2d 888 (Fla.1956).

APPENDIX—Continued

International Ins. Co. v. Johns, 874 F.2d 1447, 1456 (11th

Cir.1989); see also Reid v. State Farm Fire & Casualty Co., 352

So.2d 1172 (Fla.1977).
 In determining whether an ambiguity exists, we are to assess

first the natural or plain meaning of the policy language in

dispute. Dahl-Eimers, 986 F.2d at 1382 (citing Landress Auto

Wrecking Co. v. United States Fidelity & Guar. Co., 696 F.2d 1290,

1292 (11th Cir.1983) (applying Florida law)). Although an

insurance contract may often be a complex instrument, it does not

follow that an analysis of that contract conducted in order to

fully comprehend its meaning implies any ambiguity. Alpha

Therapeutic Corp. v. St. Paul Fire & Marine Ins. Co., 890 F.2d 368,

370 (11th Cir.1989) (citing State Farm Fire & Casualty Co. v.

Oliveras, 441 So.2d 175, 178 (Fla. 4th DCA 1983)). It is true that

an ambiguity, when found, is to be construed strictly in favor of

the insured. Rigel v. National Casualty Co., 76 So.2d 285, 286

(Fla.1954). However, where no ambiguity exists, the court is

restricted from creating one through the addition of a meaning

which is not present in the terms of the policy. Excelsior Ins.

Co. v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979).

B.

The first issue raised in the motions for summary judgment is

whether or not, as a matter of law, the "pollution exclusion

clauses" contained in the comprehensive general liability insurance

policies of the two Defendants preclude coverage to their insureds

for liability for the environmental contamination that occurred in

this case. While this issue was hotly contested in Florida as

recently as eighteen months ago, the Supreme Court of Florida has

now essentially resolved it in favor of the insurer.

This issue of whether coverage exists under the bodily injury
or property damage provisions of a comprehensive general liability

policy has been difficult for courts around the country to decide,

and perhaps none more so than the Supreme Court of Florida.

Originally, in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity

Insurance Co., No. 78, 293, 1992 WL 212008 (Fla. September 3,

1992), the Court, in a 4-3 vote, held that the 1973 CGL pollution

exclusion clause did not preclude coverage for liability arising

out of environmental contamination as a matter of law. This

decision essentially offered the following three holdings: (1) the

term "sudden and accidental" as used in the pollution exclusion is

susceptible to more than one meaning, including "abrupt and

immediate" and "unexpected and unintended"; (2) divergence among

jurisdictions in the construction of the pollution exclusion clause

was indicative of the ambiguity inherent in the exclusion; and,

(3) the drafting history of the pollution exclusion clause cut in

favor of finding coverage (due in large part to misrepresentations

allegedly made to Florida's Insurance Commissioner at the time that

it was submitted for approval with the State). Id.

However, in July of 1993, the Supreme Court of Florida

withdrew the earlier opinion and reversed its position in Dimmitt

Chevrolet, Inc. v. Southeastern Fidelity Insurance Co., 636 So.2d

700 (Fla.1993), to conclude that as a matter of law the pollution

exclusion clause precludes coverage for environmental contamination

liability. In this opinion, the Supreme Court of Florida

essentially held the following: (1) the drafting history of the

pollution exclusion clause has support on both sides and does not

resolve the issue; and (2) the term "sudden and accidental" is not
ambiguous—"[a]s expressed in the pollution exclusion clause, the

word sudden means abrupt and unexpected." Id. at 703-706. As the

Court concluded:

In the final analysis, we construe this policy to mean that
(1) basic coverage arises from the occurrence of unintended
damages, but (2) such damages as arise from the discharge of
various pollutants are excluded from basic coverage, except
that (3) damages arising from the discharge of these
pollutants will fall within the coverage of the policy where
such discharge is sudden and accidental.

Id. at 705 (citing Liberty Mut. Ins. Co. v. Triangle Indus., Inc.,

957 F.2d 1153 (4th Cir.), cert. denied, 506 U.S. 824, 113 S.Ct. 78,

121 L.Ed.2d 42 (1992)).

While six of the seven Justices held to the same position as

in the original opinion, Justice Grimes reversed his stance to

favor the argument that the pollution exclusion clause precludes

coverage for environmental damages liability. Justice Grimes wrote

a concurrence that, in full, states:

I originally concurred with the position of the dissenters in
this case. I have now become convinced that I relied too much
on what was said to be the drafting history of the pollution
exclusion clause and perhaps subconsciously upon the social
premise that I would rather have insurance companies cover
these losses rather than parties such as Dimmitt who did not
actually cause the pollution damage. In so doing, I departed
from the basic rule of interpretation that language should be
given its plain and ordinary meaning. Try as I will, I cannot
wrench the words "sudden and accidental" to mean "gradual and
accidental," which must be done in order to provide coverage
in this case.

Id. at 706 (Grimes, J., concurring).

Based upon this newer opinion in Dimmitt Chevrolet, Magistrate

Judge Brown recommends that the motions for summary judgment be

granted as to the issue of the bodily injury and property damage

provisions. Specifically, the Magistrate Judge recommended that

"[g]iven the plain and ordinary meaning of the exclusions in these
policies, it was clearly the intent of the parties to exclude

coverage for the cause of action in the underlying litigation."

Rep. & Rec., p. 6. Recognizing that there are a number of

differences in the language of the various pollution exclusion

clauses used by Transco Syndicate and California Union, the

Magistrate Judge further observed:

The plaintiff, utilizing supreme lawyer ingenuity attempts to
create an ambiguity by pointing out that each of the clauses
contains different words. The issue is not the words used,
but rather their meaning. One of us may say that six plus one
equals seven. Another of us may say five plus two equals
seven. Yet a third may say four plus three equals seven. We
have all reached the same conclusion traveling different
paths. It is insignificant to this court that merely because
different words were used there must be an ambiguity here,
somewhere. Furthermore, the issue is not whether this is an
absolute exclusion, but whether it is clear and [un]ambiguous
that the exclusionary clauses herein intended to eliminate
coverage for the activities alleged in the underlying action.

Id. at 6-7.

In both its objection to the Magistrate Judge's Report and

Recommendation concerning the Transco policies and in response to

California Union's motion for summary judgment, Plaintiff concedes

the difficulty of the position it takes. For instance, in its

response to California Union's motion for summary judgment,

Plaintiff states:

Obviously, the Plaintiff is bound to recognize the status of
Florida law to the extent that Florida law controls the
outcome of the instant litigation. Although the City of
Delray Beach does not agree with the [Florida] Supreme Court's
opinion on rehearing, and believes that the original opinion
should have remained applicable, the Plaintiff must accept the
current state of the law on that issue as the Florida Supreme
Court has decided it.

Pltff.'s Resp. to Cal. Union's Mot.Summ.Judgm. at 2.

We agree fully with the position of the Magistrate Judge (and

the concession on the part of Plaintiff) as to the issue of
coverage under the bodily injury and property damages provisions of

the comprehensive general liability policies: the Supreme Court of

Florida has laid the issue to rest in Dimmitt Chevrolet, Inc. v.

Southeastern Fidelity Insurance Co., 636 So.2d 700 (Fla.1993).

Accordingly, on this particular issue, the motions for summary

judgment filed by Transco Syndicate and California Union are

GRANTED.

C.

Accordingly, we turn to the issue on which the parties focus

their attention, the issue of whether the "personal injury

endorsements" contained in the Defendants' comprehensive general

insurance policies provide coverage for the environmental

contamination that occurred in this case.

The issue can be presented most clearly by using one of the

insurance policies at issue as an example. In particular, we focus

on the policy that all of the parties agree creates the greatest

possibility of coverage in this matter: Transco Syndicate's Policy

# DOL02250. Exclusion S of that policy, the "pollution exclusion"

clause, provides:

This insurance does not apply to bodily injury or property
damage arising out of the discharge, disbursal, release or
escape of smoke, 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 water course or body of water.

The "personal injury endorsement" reads:

"Personal Injury" means injury arising out of one or more of
the following offenses committed during the policy period

1. false arrest, detention, imprisonment, or malicious
prosecution;

2. wrongful entry or eviction or other invasion of the
 right of private occupancy;

3. a publication or utterance

(a) of a libel or slander or other defamatory or
disparaging material, or

(b) in violation of an individual's right of
privacy, except publications or utterances in the
course of or related to advertising, broadcasting,
publishing or telecasting activities conducted by
or on behalf of the named insured shall not be
deemed personal injury.

By its terms, the pollution exclusion clause does not apply to

coverage under the personal injury endorsement, but only to "bodily

injury" or "property damage" coverage. Therefore, if the personal

injury endorsement insures against the risk of environmental

contamination, then the pollution exclusion clause will not negate

that coverage. In order for the defendant insurer to be liable

under the personal injury endorsement, however, the actions on

which the underlying claims against the insureds are based must

constitute one or more of the listed offenses.

Unlike a general insurance policy, where coverage is stated in
very broad terms and subject to clearly defined exceptions (as
is the case in the bodily injury and property damage coverage
of defendants' policies), the personal injury coverage is
"buil[t] from the ground up and affords coverage only for
defined risks.'

County of Columbia v. Continental Ins. Co., 189 A.D.2d 391, 595

N.Y.S.2d 988, 991 (1993) (quoting Martin v. Brunzelle, 699 F.Supp.

167, 171 (N.D.Ill.1988)), aff'd, 83 N.Y.2d 618, 612 N.Y.S.2d 345,

634 N.E.2d 946 (1994). The plaintiffs argue that the insureds'

failure to properly dispose of waste solvents and subsequent

pollution of drinking waters comprises a "wrongful entry or

eviction or other invasion of the right of private occupancy." We

disagree.
 First, the listed offenses under paragraph two of the personal

injury endorsement require an interference with private occupancy.

Both "wrongful entry" and "eviction" imply an interference with

possessory rights. County of Columbia v. Continental Ins. Co., 595

N.Y.S.2d at 991; Barry R. Ostrager, Special Insurance Coverage

Issues Arising Out of Hazardous Waste/Environmental Clean-Up

Litigation, in Handbook on Insurance Coverage Disputes § 10.05 (5th

ed. 1992). Where, as here, no intent to occupy the property has

been shown, and indeed no interference with possession has

occurred, there can be neither wrongful entry nor eviction.

Plaintiff's analysis requires that the term "other invasion of the

right to private occupancy" lack such a requirement. However,

[u]nder the doctrine of "ejusdem generis," when an enumeration
of specific things is followed by some more general word or
phrase, then the general word or phrase will usually be
construed to refer to things of the same kind or species as
those specifically enumerated. This doctrine is actually an
application of the broader maxim "noscitur a sociis" which
means that general and specific words capable of analogous
meaning when associated together take color from each other so
that the general words are restricted to a sense analogous to
the specific words.

Thomas v. City of Crescent City, 503 So.2d 1299, n. 2 (Fla. 5th DCA

1987). Thus, when read in context, the phrase "other invasion of

the right of private occupancy" means an offense tantamount to

wrongful entry or eviction and requires an impingement upon

possessory rights. Therefore, the environmental damage at issue in

this case does not amount to any of the listed offenses under the

personal injury endorsement.

Second, the enumerated offenses under the personal injury

endorsement all relate to the violation of private rights. Here,

there is no indication that the insureds are "threatened with
liability for interfering with property owners' or occupants'

rights of private occupancy." Harrow Products, Inc. v. Liberty

Mut. Ins. Co., 833 F.Supp. 1239, 1246 (W.D.Mich.1993). Because

there is no charge against the insureds by a private occupant of

the city's water supply, there can be no "invasion of the right of

private occupancy." See id. Plaintiff urges this Court to

consider the decision in City of Edgerton v. General Casualty Co.,

172 Wis.2d 518, 493 N.W.2d 768 (Ct.App.1992), rev'd in part on
1
other grounds, 184 Wis.2d 750, 517 N.W.2d 463 (1994). In

Edgerton, the Wisconsin Court of Appeals found coverage for a

similar pollution of water supplies under an identical personal

injury endorsement. However, the Wisconsin courts have been more

receptive to finding environmental contamination coverage by

insurance carriers than have the Florida courts. Compare Dimmitt

Chevrolet, Inc. v. Southeastern Fidelity Ins. Co., 636 So.2d 700

(Fla.1993) (holding that the expression "sudden and accidental" in

a pollution exclusion clause is unambiguous and conveys a temporal

element), with Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456

N.W.2d 570 (1990) (holding that the phrase "sudden and accidental"

in a pollution exclusion clause has no temporal requirement).2

1
In reversing this decision in part, the Wisconsin Supreme
Court explicitly declined to decide the personal injury issue as
unnecessary to their holding. As Plaintiff asserts, the court of
appeals' opinion remains the sole statement of Wisconsin law on
the personal injury question. Pl.'s Notice of Subsequent Case
History, at 2. However, the Wisconsin Supreme Court opinion
roundly criticizes the approach taken by the court of appeals,
leaving doubt as to the Wisconsin Supreme Court's view of the
personal injury portion of the decision rendered by the lower
court.
2
In addition, one Florida trial court considering the
personal injury issue did find that personal injury coverage will
Furthermore, the court of appeals in Edgerton relied on a Wisconsin

statute for its conclusion that private occupancy rights existed in

the public water supply. 493 N.W.2d at 781. Thus, this Court is

not convinced that Edgerton is persuasive with respect to Florida

law.

Moreover, this Court finds itself bound by the straightforward

mandate of Leek v. Reliance Insurance Co., 486 So.2d 701 (Fla. 4th

DCA 1986). The circumstances of that case neatly parallel those in

the present action. In that case, the Leeks were sued for property

damages after they hired a service to cut the tops of a neighbor's

trees which dropped pine needles onto the Leeks' property. The

Leeks then filed a third party complaint for coverage against their

insurer. The policies at issue provided coverage for property

damage, but contained the following exclusion: "We will not pay

for property damage: b. caused intentionally by any insured who is

13 years of age or older...." Id. at 703. In addition, the

policies included coverage for personal injury, defined, in

relevant part, as: "invasion of privacy, wrongful eviction or

wrongful entry...." Id. "The complaint against the Leeks

specifically alleged both trespass and wrongful entry.

Nonetheless, the court held that the Leeks were not covered under

their policy, stating:

not include environmental damage. In Florida Department of
Environmental Regulation v. Chemairspray, Inc., No. 85-5527
(Fla.Cir.Ct. May 23, 1994), the court, relying on Leek v.
Reliance Insurance Co., 486 So.2d 701 (Fla. 4th DCA 1986), held
that pollution damage could not fit within coverage for personal
injury. While we recognize that this decision is merely
persuasive, it is indicative of the Florida courts' receptiveness
to such claims for coverage.
 Had this been an action for injury arising out of an insured
tortious act; namely, wrongful entry, we would [ ] have been
compelled to reverse here....

But it is not a claim for personal injury, raising echoes
of the old saw that if my aunt were a man, she would be my
uncle. Nowhere in the [first insurer's] policy is there any
language, with respect to damage to the property of others,
which would neutralize the specific exclusion for intentional
acts of the insured which occasion damage to others' property.
Similarly, the [second insurer's] policy insures against
injury; and as its counsel argues in his brief:

"Simply put, one cannot "injure' property any more than
one can "damage' a person."

Stated another way by [second insurer's] counsel at oral
argument, personal injury is injury to a person.

Id. at 704. Similarly, in this case, neither is there an exception

to remove the damage in this action from the pollution exclusion

clauses in these policies, nor can this environmental damage be

considered personal injury.

Finally, as we have stated, we "must construe every insurance

contract according to the entirety of its terms and conditions."

International Ins. Co. v. Johns, 874 F.2d at 1456. In addition,

this Court agrees with the reasoning in Titan Corp. v. Aetna

Casualty and Surety Co., 22 Cal.App.4th 457, 27 Cal.Rptr.2d 476

(1994),3 that no clause should be interpreted in a manner which

eviscerates any other provision. Id. at 485-86. The analysis

urged by Plaintiffs would result in precisely such a negation of

the pollution exclusion clauses contained in these policies. The

type of environmental contamination present in this case would fall

squarely within the coverage for property damage in this policy

3
The opinion in this case has been followed and its
reasoning commended in Staefa Control-Systems, Inc. v. St. Paul
Fire & Marine Insurance Co., 847 F.Supp. 1460, 1474
(N.D.Cal.1994) (Patel, J.).
were it not expressly excepted by the pollution exclusion.

Stretching the personal injury endorsement to cover risks

specifically insured under the property damage provisions would

essentially render the pollution exclusion meaningless. Id.;

County of Columbia v. Continental Ins. Co., 595 N.Y.S.2d at 991;

O'Brien Energy Sys. v. American Employers' Ins. Co., 427 Pa.Super.

456, 629 A.2d 957 (1993), appeal denied, 537 Pa. 633, 642 A.2d 487

(1994).

The resolution of the many issues surrounding insurance

coverage for pollution-related environmental contamination has

effected a sharp division among the courts around this nation.

Despite the desire to shift the costs of clean-up to the deep

pockets of insurers, the Florida courts have shown reluctance to

distort the plain language and structure of insurance policies and

the intentions of the parties contracting for insurance coverage.

See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Co., 636

So.2d at 706 (Grimes, J., concurring). Accordingly, we agree with

the interpretation of personal injury coverage offered by the court

in Titan Corp. v. Aetna Casualty & Surety Co., 27 Cal.Rptr.2d at

486. Relying on Leek v. Reliance Insurance Co., 486 So.2d 701

(Fla. 4th DCA 1986), the Titan court "interpret[ed] the coverage

afforded by the personal injury portion of the policy as being

limited to damages other than the injury to realty which an

occupier of land may suffer when his quiet enjoyment of occupancy

is disturbed." Titan, 27 Cal.Rptr.2d at 486. Therefore, as a

matter of law, this personal injury endorsement will not cover the

environmental contamination presented in this case. Accordingly,
with respect to Transco Syndicate's Policy # DOL02250, the motion

for summary judgment filed by Transco Syndicate is GRANTED.

D.

Also at stake in this litigation for Transco Syndicate are two

additional policies issued to the insureds covering the time period

from October 1, 1986, through October 1, 1988. In addition, a

single policy was issued to the insureds by California Union

covering the period from October 1, 1987 to October 1, 1988. These

remaining three policies are susceptible to the same analysis given

with respect to Transco Syndicate's Policy # DOL02250. The second

policy issued by Transco Syndicate (Policy # DOL07567) and the

California Union policy (Policy # 2204 EPO 01287) use the same

definition of personal injury. The relevant portion provides

coverage for injury due to "[w]rongful entry into, or eviction of

a person from, a room, dwelling or premises that the person

occupies"—a more limited definition with regard to wrongful

entry-type offenses than that given in Transco Syndicate's Policy

# DOL02250. Even in a leading case finding coverage under policy

language identical to that in Transco Syndicate's Policy #

DOL02250, the court found no duty to indemnify for damage from

pollutants under language identical to that found in these two

policies. See Titan Holdings Syndicate v. City of Keene, 898 F.2d

265, 272 (1st Cir.1990). Again, the offenses of wrongful entry and

eviction cannot be inflated to reach the acts of pollution present

in this case; the damages complained of are not personal injuries,

and this Court will not interpret these insurance contracts in such

a way that the pollution exclusion clauses are rendered
meaningless. Therefore, as a matter of law, the insurers owe no

coverage with respect to these personal injury endorsements.

Finally, the third policy issued to the insureds by Transco

Syndicate (Policy # DOL104251) contains a blanket pollution

exclusion pertaining to all coverage—including personal injury:

ABSOLUTE POLLUTION EXCLUSION SUPERSEDING AND REPLACING ANY AND
ALL PROVISIONS TO THE CONTRARY.

Regardless of any provision of this policy or of any
applicable underlying policies of insurance it is understood
and agreed that: the policy shall not apply to any liability
arising out of the discharge, dispersal, release or escape of
smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals,
liquids or gases, waste materials or other irritants,
contaminants or pollutants into or upon the land, the
atmosphere or any water course or body of water, whether such
discharge is sudden, accidental, or otherwise. (emphasis
added).

Thus, as a matter of law, regardless of the coverage provided in

the personal injury endorsement, liability for the environmental

contamination present in this case will fall within the pollution

exclusion, and no coverage exists under this policy for this

environmental damage. See Dimmitt Chevrolet, Inc. v. Southeastern

Fidelity Ins. Corp., 636 So.2d 700. Accordingly, with respect to

Transco Syndicate's policies # DOL104251 and # DOL07567 and

California Union's Policy # 2204 EPO 01287, the motions for summary

judgment filed by Transco Syndicate and California Union are

GRANTED.

Accordingly, it is hereby ORDERED and ADJUDGED that Defendant

Transco Syndicate's motion for summary judgment is GRANTED, and

Defendant California Union's motion for summary judgment is

GRANTED. Defendants Transco Syndicate and California Union shall

submit proposed orders for final summary judgment within ten (10)
days from the date of this Order.

DONE AND ORDERED in Miami, this 9th day of September, 1994.

/s/ Stanley Marcus
STANLEY MARCUS

UNITED STATES DISTRICT JUDGE