motion for summary judgment is therefore granted.
As the complaint itself alleges, Steuben seeks coverage for "counterclaims and potential liability for a cleanup of petroleum products present on the premises due to a massive oil spill ..." Complaint P 5. One of the defendants in the underlying action, W.W. Griffith Oil Co. ("Griffith"), alleged in its counterclaims that Steuben was the owner of the spur that was the source of the petroleum, and that all the other parties to the action, including Steuben, were responsible for the spill and liable to Griffith. Wendorff Aff. Ex. 23 PP 48, 53-77. Another defendant, Sun Pipe Line Co., Inc., made similar allegations; see Wendorff Aff. Ex. 24 PP 36, 38-53.
The only basis upon which plaintiff opposes defendant's motion is its contention that the pollution exclusion clause is ambiguous under the facts of this case because by its terms it applies to the "discharge, dispersal, release or escape of pollutants ... at or from any premises [Steuben] own[s], rent[s] or occup[ies] ..." Wendorff Aff. Ex. 1. Plaintiff contends that in the underlying action, it alleges that the discharge of petroleum occurred not at or from Steuben's property, but from a pipe underneath a nearby state highway.
This contention fails for two reasons. First, Steuben's complaint in the underlying action alleges simply that the defendants in that action "contaminated the premises of the plaintiff... by dumping some 100,000 gallons of fuel/petroleum onto plaintiff's premises." Wendorff Aff. Ex. 22 P 9. It does not allege a discharge occurring on some other property.
Even if that were the gist of plaintiff's claim, however, it still plainly falls squarely within the pollution exclusion. The exclusion's reference to the "discharge, dispersal, release or escape of pollutants ... at or from any premises" that Steuben owns, rents or occupies gives no indication that the source of the pollution must be located on plaintiff's property. In fact, the policy's use of the phrase "at or from" plaintiff's property indicates precisely the opposite; if the exclusion were intended to apply only to discharges emanating from Steuben's property, it would have sufficed to use only the word "from."
Plaintiff, then, is essentially equating "at" with "from." Such an interpretation would render the word "at" superfluous, and would hardly comport with the principle that the policy should be construed with reference to "common speech." M.H. Lipiner & Son, 869 F.2d at 687. See State of New York v. Amro Realty Corp., 936 F.2d 1420, 1428 (2d Cir. 1991) ("We decline to obligate an insurer to extend coverage based on a reading of the complaint that is linguistically conceivable but tortured and unreasonable"). Regardless of where the petroleum emanated, the fact remains that there has occurred a dispersal of petroleum at plaintiff's property, and claims arising from that dispersal are expressly excluded from coverage under the policies.
Moreover, "it is appropriate to construe the standard pollution exclusion clause in light of its general purpose, which is to exclude coverage for environmental pollution." Stoney Run Co. v. Prudential-LMI Comm. Ins. Co., 47 F.3d 34, 37 (2d Cir. 1995); see also Rapid-American, 80 N.Y.2d at 654 (purpose of clause is "to exclude coverage for environmental pollution"). There is no logical reason why the clause would differentiate between pollution originating on the insured's property and pollution entering that property from an external source.
Plaintiff's reliance on Incorporated Village of Cedarhurst v. Hanover Ins. Co., 89 N.Y.2d 293, 653 N.Y.S.2d 68, 675 N.E.2d 822 (1996), is misplaced. In Cedarhurst, the plaintiff village had been sued for property damage and personal injuries allegedly caused by the overflow of raw sewage from the municipal sewer system. In a 4-3 decision, the court held that the village's insurer could not disclaim coverage under a pollution exclusion, since the "risk of liability faced by the Village allegedly arose from the flood-like character of the discharge rather than its 'polluting' character ..." Id. at 300. In the case at bar, however, it is very definitely the "polluting" character of the petroleum that has given rise to the underlying action and counterclaims.
As the New York Court of Appeals, construing a similar pollution exclusion, stated in Town of Harrison v. National Union Fire Ins. Co. of Pittsburgh, Pa., 89 N.Y.2d 308, 653 N.Y.S.2d 75, 675 N.E.2d 829 (1996), I can "detect no ambiguity regarding the scope of the pollution exclusions" in this case. Id. at 316. "It is evident that coverage is unavailable for any claim involving the discharge or dispersal of any waste, pollutant, contaminant or irritant regardless of the cause or source of that claim," and "therefore, coverage is unambiguously excluded for claims generated by the dumping of waste materials onto [plaintiff's] property ..., irrespective of who was responsible for those acts" or where the pollutants came from. Id. (citations omitted).
Defendant's motion for summary judgment (Item 8) is granted, and the complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
September 3, 1997.