Continental Cas. Co. v. City ofJacksonville, No. 3:04-cv-1170-HES-MCR, 2009 WL 2436678 (M.D. Fla. Aug. 7, 2009)
The court denoted that the issue of address was a small part of a large and contentious litigation spanning over a number of years and that all claims asserted in the case, except those at bar, had been settled.
The underlying suit was won against the City of Jacksonville, brought as a class action alleging excessive exposure to elevated levels of toxic heavy metal such as lead, mercury, arsenic, dioxin and furnas, carcinogenic polycyclic aromatic hydrocarbons (PAHs), hazardous polychlorinated biphenyls (PCBs), and other toxic contaminants. Id. at *1.
In the Fourth Amended Complaint by Williams, DCSB who owned portions of Brown’s Sump Site, a former garbage dump that received municipal incinerator ash and municipal solid waste from the City of Jacksonville between the late 1940's and the 1960's was sued. The dump site had been the location for construction of the Mary Macleod Bethune Elementary School in 1957 as well as founding residential housing. The carrier denied a defense duty based on the pollution exclusion.
The court found the exclusion at issue barring pollution coverage for bodily injury and property damage discharge, dispersal and release unambiguous.
The court found that the exclusion addressed fraud claims including both passive and active polluters. It determined that the issue as to whether DCSB’s conduct was negligent dependant on its response of the recognition of environmental pollution.
The application of the pollution exclusion to insured non-polluter was hardly novel, nor did it matter that the exclusion was applied to a party that did not “discharge” pollution as the “arise out of” language was sufficient to reach same. Nor was the :sudden and accidental exception” implicated. There was no specific facts evidencing a grounds for estoppel in this case.
The personal injury coverage was also rejected because actions for inverse condemnation, nuisance and trespass are not equivalent to wrongful entry or eviction within the meaning of this section.
“Wrongful entry” or “eviction,” require some sort of impingement of the possessory rights of the residents neighboring the Site. City of Delray Beach, 85 F.3d at 1534.
Id. at *10.
As a matter of law, that no environmental contamination was covered.
