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Firemen's Ins. Co. v. Kline & Son Cement Repair, Inc.

United States District Court for the Eastern District of Virginia, Richmond Division

February 13, 2007, Decided ; February 13, 2007, Filed

CIVIL NO. 3:06CV425



This matter is a declaratory judgment action that is before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1) on cross-motions for total or partial summary judgment (docket entry nos. 13, 15, and 18). 1 See 28 U.S.C. § 2201 et seq. Jurisdiction is invoked pursuant to 28 U.S.C. § 1332(a). Co-Defendant R.J. Smith General Contracting, Inc. ("R.J. Smith") contracted with Defendant Kline & Son Cement Repair, Inc. ("Kline") to apply an epoxy sealant to a concrete [**2]  floor as part of a renovation project of a warehouse. Co-Defendant Patricia Lewis ("Lewis") has asserted a personal injury claim against both R.J. Smith and Kline alleging that she developed respiratory problems as a result of inhaling fumes from the sealant applied by Kline. (Compl. P 8.) The insurer of R.J. Smith and Kline, Firemen's Insurance Company of Washington, D.C. ("Firemen's"), asks this Court to declare that it has no duty to defend or indemnify the Defendants in Lewis' personal injury claim pursuant to a Total Pollution Exclusion clause provided for in the Policy. (Compl. PP 18-25; Firemen's Br. Supp. Mot. Summ. J. ("Firemen's Br.") at 4-7.) R.J. Smith and Kline counter that Lewis' claim is covered by the Policy because the Total Pollution Exclusion clause is ambiguous as applied to the facts of this case, and therefore must be construed against Firemen's in favor of coverage. (Kline's Br. Supp. Mot. Summ. J. ("Kline's Br.") at 4-10 (docket entry no. 14); R.J. Smith's Mem. Supp. Mot. Part. Summ. J. ("R.J. Smith's Mem.") at 5-9 (docket entry no. 16.)) The matter has been extensively briefed and the Court has entertained oral argument. The case is therefore "ripe" for resolution.  [**3]  For the reasons set forth herein, Firemen's motion is GRANTED and the Defendants' motions are DENIED.

Undisputed Facts and Material Inferences

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474 F. Supp. 2d 779 *; 2007 U.S. Dist. LEXIS 23208 **


Prior History: Firemen's Ins. Co. v. Kline & Son Cement Repair, Inc., 2007 U.S. Dist. LEXIS 12609 (E.D. Va., Feb. 12, 2007)


insured, pollutant, pollution exclusion, fumes, coverage, sealant, chemicals, ambiguous, parties, unambiguously, dispersal, floor, injuries, irritant, declaratory judgment, inhalation, environmental, contaminant, migration, seepage, courts, epoxy, third-parties, settlement, warehouse, exposure, heating, liquid, justiciable, eurathane

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Genuine Disputes, Legal Entitlement, Judgments, Evidentiary Considerations, Need for Trial, Motions for Summary Judgment, Cross Motions, Burdens of Proof, Nonmovant Persuasion & Proof, Insurance Law, Remedies, Declaratory Judgments, General Overview, Constitutional Law, The Judiciary, Case or Controversy, Justiciability, Case & Controversy Requirements, Federal Declaratory Judgments, Obligations of Parties, Insurers, Allegations in Complaints, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Business Insurance, Commercial General Liability Insurance, Actual Controversy, Discretionary Jurisdiction, Judicial Officers, Judges, Discretionary Powers, Discretionary Jurisdiction, Factors, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Choice of Law, Forum & Place, Claim, Contract & Practice Issues, Policy Interpretation, Contract Formation, Policy Delivery, Contracts Law, Contract Interpretation, Evidence, Allocation, Exclusions, Burdens of Proof, Ambiguous Terms, Construction Against Insurers, Reasonable Expectations, Plain Language