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Above it All Roofing & Construction, Inc. v. Security National Insurance Co.

United States District Court, N.D. Oklahoma

January 5, 2018

ABOVE IT ALL ROOFING & CONSTRUCTION, INC., Plaintiff,
v.
SECURITY NATIONAL INSURANCE COMPANY, Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL JUDGE

         This matter comes before the court for decision on the issue of insurance coverage. Plaintiff Above It All Roofing & Construction, Inc. and defendant Security National Insurance Company have each filed briefs and supplemental briefs on the issue. [Docs. #24, 26');">26, 31, 32');">32].

         I. Stipulated Facts

         The parties do not dispute that Security National issued a commercial general liability insurance policy, designated policy no. NA107340101, to Above It All for an effective period of January 7, 2015 to January 7, 2016. Nor do the parties dispute the terms of that policy. See [Doc. #24, p. 2');">p. 2 ¶¶ 1-3; Doc. #24-8');">8');">8');">8');">8');">8');">8');">8');">8');">8');">8');">8');">8');">8');">8');">8]. The policy includes the following relevant policy provisions:

COMMERCIAL GENERAL LIABILITY COVERAGE FORM, CG 00 0112 07
SECTION I - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. 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. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result. But:
***
2. Exclusions
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.”
***
SECTION V - DEFINITIONS
***
3. “Bodily injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
***
15. “Pollutants” mean 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.
***
17. “Property damage” means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.
***
FORM 49-0101 07 11
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CHANGES IN COMMERCIAL GENERAL LIABILITY
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. Exclusion 2.f of SECTION I - COVERAGES, COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY is replaced by the following:
Pollution
(1) “Bodily injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at any time.
***
D. Additional Exclusions applicable to COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY and COVERAGE B. PERSONAL AND ADVERTISING INJURY LIABILITY
This insurance does not apply to:
1. Punitive or Exemplary Damage
If a “suit” is brought against the insured for damages covered by this policy, seeking both compensatory and punitive or exemplary damages, we will afford a defense to such action. We will not have an obligation to pay for any costs, interests or damages attributable to punitive or exemplary damages. This exclusion does not apply in any state where such endorsement is expressly prohibited by state law or insurance department regulations.
2. Asbestos
Bodily injury”, “property damage”, or “personal and advertising injury” arising out of:
a) The use of asbestos in constructing or manufacturing any good, product or ...

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