United Fire & Casualty Co. v. Titan Contractors Service, Inc., No. 13-1307 (8th Cir. 2014)
Annotate this CaseUnited filed a declaratory judgment action against Titan, seeking a declaration that United did not owe a duty to defend or indemnify Titan against a pending state-court lawsuit because the policy's absolute pollution exclusion barred coverage for the claims raised in the lawsuit. Titan counter-claimed for relief. The district court granted Titan's motion and denied United's, entering a judgment declaring that United owed a duty to defend and indemnify Titan against the state-court lawsuit. The court concluded that an ordinary person of average understanding purchasing the policy would consider TIAH, an acrylic concrete sealant, to fall unambiguously within the policy's definition of "pollutant." Because the district court premised its denial of United's motion for summary judgment exclusively on the erroneous conclusion that TIAH does not constitute a pollutant, the court vacated the district court's order. The court declined to direct the entry of summary judgment in favor of United. The court remanded for further proceedings.
Court Description: Civil case - Insurance. In a declaratory judgment action raising the issue of whether coverage and defense were barred by the "absolute pollution exclusion" in the commercial general liability policy issued to defendant, an ordinary person of average understanding purchasing the policy would consider TIAH, an acrylic concrete sealant, to fall unambiguously within the policy's definition of a pollutant; the district court erred in finding TIAH was not a pollutant, and its order granting summary judgment to defendant is vacated; the court would not enter summary judgment for the insurer, however, as defendant has raised an issue, which, if correct, would render the absolute pollution exclusion in the policy inapplicable. Judge Bright, dissenting.
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