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Nautilus Ins. Co. v. Jabar

United States Court of Appeals for the First Circuit

August 30, 1999, Decided

No. 98-2158

Opinion

 [*28]  TORRUELLA, Chief Judge. Plaintiff-appellant Nautilus Insurance Company ("Nautilus") appeals from the district court's entry of summary judgment in favor of its insured, defendant-appellee Michael G. Jabar, d/b/a Mike's Roofing Company ("Jabar"). In the underlying action, Nautilus sought a declaratory judgment from the district court that it was not obligated to defend and/or indemnify Jabar [**2]  in connection with a civil action filed against Jabar by Lisa and Stephen Varano ("the Varanos"). The district court granted summary judgment in favor of Jabar on the ground that the total pollution exclusion clause relied upon by Nautilus to deny coverage was ambiguous as a matter of law.

BACKGROUND

On or about June 3, 1997, the Varanos commenced a civil action against Jabar in the United States District Court for the District of Maine alleging that in February and March of 1995 Lisa Varano was exposed to hazardous fumes discharged by roofing products used by Jabar to repair  [*29]  the roof at Lisa Varano's place of employment. The complaint alleges that due to the inhalation of these fumes, Lisa Varano now suffers from occupational asthma. In their complaint, the Varanos sought damages to compensate them for Lisa's personal injuries and for Stephen's loss of consortium. The complaint does not allege, nor has Nautilus ever suggested, that Jabar in any way misused the roofing products that are alleged to have caused Lisa Varano's injuries.

At the time of Lisa's exposure to the fumes, Jabar was insured under a commercial lines insurance policy issued by Nautilus. Jabar notified Nautilus [**3]  of the suit against him, and Nautilus undertook his defense, under a reservation of rights.

Eventually, Nautilus concluded that it was not obligated to defend or indemnify Jabar in connection with the Varanos' claims due to the existence of a total pollution exclusion clause in Jabar's policy. This clause excludes coverage for:

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188 F.3d 27 *; 1999 U.S. App. LEXIS 20803 **; 30 ELR 20026; 49 ERC (BNA) 1507

NAUTILUS INSURANCE COMPANY, Plaintiff, Appellant, v. MICHAEL G. JABAR, d/b/a MIKE'S ROOFING CO., Defendant, Appellee. LISA A. VARANO AND STEPHEN M. VARANO, Appellees. STERN COMPANY, INC., Appellee.

Prior History:  [**1]  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. D. Brock Hornby, U.S. District Judge.

Disposition: Affirmed.

CORE TERMS

pollution exclusion, coverage, district court, ambiguous, environmental pollution, pollutant, insured, irritant, summary judgment, contaminant, bodily injury, environmental

Civil Procedure, Appeals, Standards of Review, De Novo Review, Insurance Law, Commercial General Liability Insurance, Exclusions, Pollution, Summary Judgment Review, General Overview, Standards of Review, Contracts Law, Defenses, Ambiguities & Mistakes, Policy Interpretation, Ambiguous Terms, Claim, Contract & Practice Issues, Question of Law, Reasonable Expectations, Reasonable Person, Construction Against Insurers, Coverage Favored, Exclusions