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MacKinnon v. Truck Ins. Exchange

Supreme Court of California

August 14, 2003, Filed



 [***231]  [**1207]   MORENO, J.—In this case, we consider the meaning of an exclusionary clause in a comprehensive general liability (CGL) insurance policy that excludes injuries caused by the “discharge, dispersal, release or escape of pollutants.” [****3]  Specifically, we are asked to determine whether that clause, a standard pollution exclusion clause, applies to exclude injury to a tenant resulting from a landlord’s allegedly negligent use of pesticides on his property. We conclude that in order for an exclusionary clause to effectively exclude coverage, it “‘must be conspicuous, plain and clear’” ( Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 271 [54 Cal. Rptr. 104, 419 P.2d 168]), and that the pollution exclusion in question does not plainly and clearly exclude ordinary acts of negligence involving toxic chemicals such as pesticides. Accordingly, we reverse the contrary judgment of the Court of Appeal.


The following facts are undisputed. Truck Insurance Exchange (Truck Insurance) issued a CGL insurance policy to John R. MacKinnon, for the period of April 1996 to April 1997. That policy obligated the insurer to pay “all sums for which [the insured] become[s] legally obligated to pay as damages caused by bodily injury, property damage or personal injury.” The insurer must “pay for damages up to the Limit of Liability when caused by an occurrence arising out of the business [****4]  operations conducted at the insured location.” Under “Exclusions” the policy states: “We do not cover Bodily Injury or Property Damage (2) Resulting from the actual, alleged, or threatened discharge, dispersal, release or escape of pollutants: (a) at or from the insured location.” The terms “Pollution or Pollutants” are defined, in the definitions section at the beginning of the policy, as “mean[ing] any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste materials. Waste materials include materials  [***232]  which are intended to be or have been recycled, reconditioned or reclaimed.”

 [*640]   Jennifer Denzin was a tenant in MacKinnon’s apartment building. She requested MacKinnon to spray to eradicate yellow jackets at the apartment building. MacKinnon hired a pest control company, Antimite Associates, Inc. (Antimite), to exterminate the yellow jackets. Antimite treated the apartment building for yellow jackets on several occasions in 1995 and 1996. On May 19, 1996, Denzin died in MacKinnon’s apartment building.

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31 Cal. 4th 635 *; 73 P.3d 1205 **; 3 Cal. Rptr. 3d 228 ***; 2003 Cal. LEXIS 5692 ****; 2003 Daily Journal DAR 9112; 2003 Cal. Daily Op. Service 7301

JOHN R. MacKINNON et al., Plaintiffs and Appellants, v. TRUCK INSURANCE EXCHANGE, Defendant and Respondent.

Notice:  [****1]  As modified Sept. 17, 2003.

Subsequent History: Later proceeding at MacKinnon v. Truck Insurance Exchange, 2003 Cal. LEXIS 6933 (Cal., Sept. 17, 2003)

Modified and rehearing denied by Mackinnon v. Truck Insurance Exchange, 2003 Cal. LEXIS 7006 (Cal., Sept. 17, 2003)

Prior History: Superior Court of San Bernardino County, No. RCV 42973, Peter H. Norell and Barry L. Plotkin, Judges. Court of Appeal, Fourth Dist., Div. Two, No. E028662.

 MacKinnon v. Truck Ins. Exchange, 95 Cal. App. 4th 235, 115 Cal. Rptr. 2d 369, 2002 Cal. App. LEXIS 353 (Cal. App. 4th Dist., 2002)

Disposition: Reversed.


pollution, coverage, pesticides, environmental, dispersal, irritant, contaminant, accidental, ambiguous, sudden, exclusionary, absurd, paint, connotations, chemicals, literally, spraying, plainly, carbon, dictionary, exposure, italics, yellow

Civil Procedure, Summary Judgment, Motions for Summary Judgment, General Overview, Insurance Law, Commercial General Liability Insurance, Exclusions, Pollution, Judgments, Appeals, Summary Judgment Review, Standards of Review, Standards of Review, De Novo Review, Questions of Fact & Law, Claim, Contract & Practice Issues, Policy Interpretation, Judicial Review, Question of Law, Contracts Law, Defenses, Ambiguities & Mistakes, Contract Interpretation, Intent, Exclusions, Reasonable Expectations, Business Insurance, Property Claims, Pollution, Reasonable Person, Environmental Law, Hazardous Wastes & Toxic Substances, CERCLA & Superfund, Financial Responsibility, Coverage, Real Property Law, Environmental Regulations, Liabilities & Risks, Contractual Relationships, Accidental Injuries, Environmental Claims, Advertising & Personal Injuries, Personal Injuries, Governments, Agriculture & Food