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Court of Appeals of Colorado, Division Two
October 14, 2010, Decided
Court of Appeals No. 09CA2179
[*573] In this case, we must determine whether a pollution exclusion clause in an insurance policy issued by defendant Mountain States Mutual Casualty Company (insurer) to Tim Kirkpatrick, doing business as Hog's Breath Saloon and Restaurant (Hog's Breath), bars coverage for injuries suffered by plaintiffs, Christopher Roinestad and Gerald Fitz-Gerald, as a result of the negligent dumping of cooking oil and grease by Hog's Breath. On cross-motions for summary judgment, the district court granted summary judgment to the insurer, holding that the pollution exclusion clause precluded coverage.
We conclude that the pollution exclusion [**2] clause is ambiguous when applied to the cooking oil and grease at issue here. Accordingly, construing the ambiguous exclusion against the insurer and in favor of coverage, as we must, we reverse the judgment and remand with instructions that the district court enter judgment in favor of plaintiffs.
As part of their routine cleaning of the kitchen at Hog's Breath, Hog's Breath employees poured greasy water into the sewer drain outside the bar. Over time, the grease built up in the city's sewer system.
In early October 2003, as part of a citywide rehabilitation of the sewer lines, plaintiffs were working to clean out the sewer line near Hog's Breath, but not on its property. As pertinent here, Fitz-Gerald was standing over a manhole located downstream of Hog's Breath, using a jet hose to clear a clog of grease in the sewer line. Plaintiffs smelled hydrogen sulfide when they opened the manhole, and when the clog broke free, they noticed that the odor had increased dramatically. Before he could move away, Fitz-Gerald lost consciousness and fell into the manhole.
Roinestad radioed for help from other employees and then entered the manhole to try to help Fitz-Gerald. He too, however, [**3] was overcome by the hydrogen sulfide fumes and passed out.
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300 P.3d 571 *; 2010 Colo. App. LEXIS 1508 **; 2010 WL 4008895
Christopher Roinestad and Gerald Fitz-Gerald, Plaintiffs-Appellants, v. Tim Kirkpatrick, d/b/a Hog's Breath Saloon & Restaurant, Defendant, and Mountain States Mutual Casualty Company, Defendant and Garnishee-Appellee.
Subsequent History: Modified and rehearing denied by Roinestad v. Kirkpatrick, 2010 Colo. App. LEXIS 1711 (Colo. Ct. App., Nov. 18, 2010)
Writ of certiorari granted in part and denied in part Mt. States Mut. Cas. Co. v. Roinestad, 2011 Colo. LEXIS 375 (Colo., May 9, 2011)
Reversed by Mt. States Mut. Cas. Co. v. Roinestad, 296 P.3d 1020, 2013 Colo. LEXIS 166 (2013)
Prior History: [**1] Otero County District Court No. 05CV153. Honorable M. Jon Kolomitz, Judge.
Mt. States Mut. Cas. Co. v. Kirkpatrick, 2007 U.S. Dist. LEXIS 67420 (D. Colo., Aug. 30, 2007)
Disposition: JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.
insurer, pollutant, grease, cooking oil, pollution exclusion, coverage, hydrogen sulfide, ambiguous, contaminant, courts, plaintiffs', sewer, insurance policy, summary judgment, district court, discharged, reasons, site, reasonable interpretation, injuries, premises, provisions, disposal, irritant, impure, liquid
Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Insurance Law, Policy Interpretation, Ambiguous Terms, General Overview, Claim, Contract & Practice Issues, Judicial Review, Ordinary & Usual Meanings, Construction Against Insurers, Coverage Favored, Exclusions, Liability & Performance Standards, Good Faith & Fair Dealing, Indemnification