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Subject: August 10 2006 LBL Weekly Law Resume

Low, Ball & Lynch’s

WEEKLY LAW RESUME

August 10, 2006  Issue  By: Ray Coates

 

Coverage - Pollution Exclusion - Dirt and Rock

 

Ortega Rock Quarry v. Golden Eagle Insurance Corp.

(July 27, 2006)

 

Court of Appeal, Fourth District

 

The application of the pollution exclusion after recent Supreme Court cases leaves open for interpretation the meaning of the word “pollution.” This case applies it to dirt and gravel.

 

Ortega Rock Quarry operated a rock quarry business. A creek ran through the quarry land that Ortega had leased. After heavy storms, the creek overflowed and washed out an access road on the leased property. To maintain access to the quarry, Ortega placed fill dirt from the quarry along the road.

 

The Environmental Protection Agency (“EPA”) issued an administrative order to Ortega, alleging that the fill resulted in an unauthorized discharge of fill material into the creek. It issued an administrative order demanding that Ortega cease its fill operations and submit a restoration plan. The EPA contended that the dirt and rocks that Ortega placed into the creek were pollutants within the meaning of the Clean Water Act. Ortega assisted in the development of a restoration plan. The EPA directed Ortega to implement it. In addition, the lessor of the land filed a civil lawsuit against Ortega, alleging that Ortega had damaged its property.

 

Golden Eagle Insurance Company (“GEIC”) issued a general commercial liability policy and an excess policy to Ortega. Ortega was also insured under a general commercial liability policy issued by Continental Casualty Company. Ortega tendered to its insurers, and the insurers denied defense and indemnity. Ortega sued for breach of contract and other claims. The trial court granted summary judgment and summary adjudication in favor of the insurers. Ortega appealed.

 

The Court of Appeal affirmed. First, following established law, the Court held the insurers had no duty to defend the EPA proceedings because they were not “suits” within the meaning of the policies. The duty to defend and indemnify applies to lawsuits filed against an insured, not administrative proceedings.

 

As to the action filed by the lessor, as well as the EPA proceeding, the Court held the total pollution exclusion in the policies applied. The Court noted the Clean Water Act defined pollutants as “dredged spoil, solid waste, . . . sludge . . . ”. The Court held that State and Federal environmental laws provide insight into the scope of the definition of pollution, even though not specifically incorporated in those policies. The Court noted that natural dirt and rocks are pollutants within the meaning of the Clean Water Act when placed in waters of the United States in  violation of that Act.

 

Ortega argued that, since the policy defined “pollutants,” only those irritants or contaminants listed in the policy were excluded. The Court rejected that contention, and held that the items listed in the exclusion were not intended to be exclusive, and did not limit the items included within its scope. The Court concluded that the exclusion was not ambiguous and applied to the natural dirt and rocks, which were defined as pollutants under the Clean Water Act. The Court therefore concluded that it properly applied to Ortega’s activities. The judgment was therefore affirmed.

 

COMMENT

 

This opinion should be read for its discussion of the pollution exclusion, as well as the application in this case. Its holding that the exclusion is not limited to the defined pollutants set forth in the policy will also be of great import.

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