Mountain States Mut. Cas. Co. v. Roinestad

2013 CO 14

Petitioner: Mountain States Mutual Casualty Company,

v. Respondents: Christopher Roinestad and Gerald Fitz-Gerald and Tim Kirkpatrick, d/b/a Hog's Breath Saloon & Restaurant.

Supreme Court Case No. 10SC853

Supreme Court of the State of Colorado

February 25, 2013

Certiorari to Colorado the Court of Appeals

Court of Appeals Case No. 09CA2179

Judgment Reversed

en banc

Attorneys for Petitioner:

Wilson Elser Moskowitz Edelman & Dicker LLP

Joseph F. Bermudez

Jessica C. Collier

Denver, Colorado

Attorneys for Respondents Christopher Roinestad and Gerald Fitz-Gerald:

Killian & Davis, P.C.

J. Keith Killian

Damon Davis

Grand Junction, Colorado

No appearance by or on behalf of Tim Kirkpatrick.

Attorneys for Amicus Curiae The Colorado Trial Lawyers Association:

Roberts Levin Rosenberg, P.C.

Bradley A. Levin

Denver, Colorado

Leventhal, Brown & Puga, P.C.

David P. Mason

Denver, Colorado

Attorneys for Amicus Curiae Complex Insurance Claims Litigation Association:

Springer & Steinberg, P.C.

JoAnne M. Zboyan

Denver, Colorado

Attorneys for Amicus Curiae United Policyholders:

Reed Smith LLP

James M. Davis

Chicago, IL

JUSTICE EID delivered the Opinion of the Court.

¶1 Respondents Christopher Roinestad and Gerald Fitz-Gerald were overcome by poisonous hydrogen sulfide gas while cleaning a large grease clog in a sewer near the Hog's Breath Saloon & Restaurant ("Hog's Breath"). The district court concluded that Hog's Breath caused respondents' injuries by dumpingsubstantial amounts of cooking grease into the sewer, thereby creating a five- to eight-foot grease clog and consequent build-up of hydrogen sulfide gas. On summary judgment, the district court found Hog's Breath liable under theories of negligence and off-premises liability, and entered a damage award in respondents' favor.

¶2 Hog's Breath carried a commercial general liability policy issued by Petitioner Mountain States Mutual Casualty Company ("Mountain States"), which sought a ruling that it had no obligation to indemnify Hog's Breath. It argued that Hog's Breath's conduct fell within the policy's pollution exclusionclause, which excluded coverage for bodily injury arising out of the discharge of pollutants from the premises of an insured. The insurance policy defined pollutants as any solid, liquid, gaseous, or thermal irritant or contaminant, or waste. The district court agreed with Mountain States, concluding that the pollution exclusion clause was unambiguous and that the dumping of substantial amounts of cooking grease into the sewer constituted a discharge of a pollutant under the policy's pollution exclusion clause.

¶3 The court of appeals reversed. It held that that the terms of the pollution exclusion clause were ambiguous and that its application to cooking grease-a common everyday waste product—could lead to absurd results and negate essential coverage. Roinestad v. Kirkpatrick,No. 09CA2179, slip op. at 18 (Colo. App. Oct. 14, 2010) (selected for official publication).

¶4 We now reverse. While we are mindful of the concerns expressed by the court of appeals, we find them inapplicable here. In this case, the restaurant discharged enough cooking grease into the sewer system to create a five- to eight-foot clog that led to a dangerous buildup of toxic gas-conduct that violated a city ordinance prohibiting the discharge of a pollutant in an amount that creates an obstruction to the sewer flow. We agree with the district court that, under the circumstances of this case, the discharge of cooking grease amounted to the discharge of a pollutant. Accordingly, we conclude that the pollution exclusion clause bars coverage in this case.

I.

¶5 On October 1, 2003, respondents Christopher Roinestad and Gerald Fitz-Gerald were working on the sewer system in La Junta when they discovered a grease clog in a manhole near Hog's Breath, a sole proprietorship run by Tim Kirkpatrick. Fitz-Gerald attempted to clean the clog by inserting a water jet tool down the manhole and was overcome by hydrogen sulfide gas¹ in the process. He lost consciousness and fell into the manhole. Roinestad attempted to rescue Fitz-Gerald, but was also overcome by the hydrogen sulfide gas. Both men suffered injuries from the hydrogen sulfide exposure.

¶6 Post-accident investigations revealed grease approximately five- to eight-feet deep in the space beneath the manhole adjacent to Hog's Breath. In addition, there were large amounts of cooking oil on the ground around a sewer cleanout on the property where Hog's Breath was located. The sewer cleanout drained directly toward the manhole where the grease clog was discovered, and the grease in the manhole was consistent with the grease discovered at the cleanout. No other commercial entity's sewer fed into the sewer system upstream of the Hog's Breath, which suggested that no other business had contributed to the grease found in the manhole near the Hog's Breath. In support of this conclusion, a Hog's Breath employee testified that Kirkpatrick instructed Hog's Breath employees to dump greasy water down the cleanout—which employees did regularly.

¶7 Respondents sued Kirkpatrick (d/b/a Hog's Breath) on September 29, 2005, alleging negligence, negligence per se, and off-premises liability. The negligence per se claims were based on several La Junta city ordinances in effect at the time, including city ordinance 13.12.250(b), entitled "Restricted Discharges to Sewers," which says,

(b) Substances which are prohibited are: (3) Solid or viscous pollutants² in amounts which will cause obstruction to the flow in the [Publicly Owned Treatment Works "POTW")] or other interference with the operation of the POTW... (5) Pollutants which result in the presence of toxic gases, vapor or fumes within the POTW in a quantity that may cause acute worker health and safety problems.³

¶8 After respondents filed the lawsuit, Kirkpatrick notified his liability insurer, Mountain States, who had renewed a commercial general liability policy (the "insurance policy" or "policy") issued to Hog's Breathin 2003 that contained a pollution exclusion clause stating,

This insurance does not apply to: . . . . f. Pollution

(1) "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants: (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured; . . . .

Pollutants means 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.

¶9 Mountain States initially defended Kirkpatrick under a reservation of rights. Eventually, however, it brought a declaratory judgment action in federal court asserting that it had no duty to defend Kirkpatrick based on the pollution exclusion clause. Mountain States Mut. Cas. Co. v. Kirkpatrick,No. 06-CV-00221, 2007 WL 2506640 (D. Colo. Aug. 30, 2007) (unpublished order). The federal court found Mountain States had no duty to defend because "underthe plain meaning of the words and in the context of the facts and circumstances alleged in the Underlying Lawsuit . . . . [t]he grease and oil, in the quantities allegedly at issue," are contaminants and therefore pollutants. Id. at *4.⁴

¶10 Thereafter, Mountain States did not defend Kirkpatrick. On summary judgment, the state trial court found Kirkpatrick liable for respondents' injuriesbecause Hog's Breath dumped greasy water in the sewer in great enough amounts to cause the sewer clog, which in turn created a buildup of hydrogen sulfide gas. After a one-day trial on damages, respondents obtained a monetary judgment against Kirkpatrick and were awarded costs.

¶11 Apparently unable to collect from Kirkpatrick, respondents served a writ of garnishment on Mountain States. When it reappeared in state court, Mountain States moved for summary judgment asserting it had no duty to indemnify based on the pollution exclusion and the federal court's ruling. The trial court granted Mountain States' summary judgment motion, finding the pollution exclusion barred coverage. Respondents appealed.

¶12 In a published opinion, the court of appeals reversed and remanded the case with directions. Roinestad, No. 09CA2179, slip op. at 18. It held that the terms of the pollution exclusion clause were ambiguous and that its application to cooking grease-a common everyday waste product-could lead to absurd results and negate essential coverage. Id. The court of appeals reversed the district court and remanded the case with directions to enter judgment for respondents and to enforce the writ of garnishment. We granted certiorari,⁵ and now reverse the court of appeals' decision.

II.

¶13 Because this case was decided on summary judgment, our review of legal questions is de novo. Brodeur v. Am. Home Assur. Co., 169 P.3d 139, 146 (Colo. 2007). We also review insurance contract interpretation questions de novo. Compass Ins. Co. v. City of Littleton,984 P.2d 606, 613 (Colo. 1999).

¶14 The question here is whether the pollution exclusion clause at issue, which states that the insurance policy "does not apply to . . . bodily injury . . . arising out of the actual . . . discharge . . . of pollutants. . . from any premises" occupied by an insured, (emphasis added), excludes the conduct that occurred in this case. Respondents do not dispute that cooking grease was "discharged" from the restaurant in quantitieslarge enough to create the sewer clog, nor do they dispute their injuries "arose out" ofsuch a discharge. Rather, the contested issue is whether the discharge of cooking grease under the circumstances of this case amounted to a discharge of a "pollutant" so as to fall within the pollution exclusion clause.

¶15 Mountain States' policy defines pollutants as "any solid, liquid, gaseous or thermal irritant or contaminant,including smoke, vapor, soot,...