Submitted January 14, 2014.
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For United Fire & Casualty Company, Plaintiff - Appellant: Mary Adina Johnson, David Karl Simkins, Wuestling & James, Saint Louis, MO.
For Titan Contractors Service, Inc., Defendant - Appellee: Nicholas Joseph Garzia, Patrick J. Kenny, Armstrong & Teasdale, Saint Louis, MO; Cynthia Juedemann, Russell F. Watters, Brown & James, Saint Louis, MO.
Before GRUENDER, BRIGHT, and MELLOY, Circuit Judges. BRIGHT, Circuit Judge, dissenting.
GRUENDER, Circuit Judge.
United Fire and Casualty Company (" United" ) brought this declaratory judgment action against Titan Contractors Services, Inc. (" Titan" ), and Titan counterclaimed for declaratory relief. United appeals the district court's grant of summary judgment in favor of Titan on United's claim and Titan's counterclaim, as well as the district court's denial of United's motion for summary judgment. For the reasons discussed below, we vacate and remand.
Titan provides construction-cleanup services, including cleaning and sealing concrete floors. At all relevant times, Titan was insured under a commercial general liability insurance policy provided by United. The policy excluded from coverage " '[b]odily injury' or 'property damage' which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of 'pollutants' at any time." The policy defines " pollutant" as " any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." This provision, typically denominated the " absolute pollution exclusion," appears in many commercial general liability insurance policies. See William P. Shelley & Richard C. Mason, Application of the Absolute Pollution Exclusion to Toxic Tort Claims: Will Courts Choose Policy Construction or Deconstruction?, 33 Tort & Ins. L.J. 749, 752-53 & n.13 (1998).
In March 2009, three women brought negligence claims against Titan in Illinois state court. They alleged that on April 20, 2007, Titan applied TIAH, an acrylic concrete sealant, to the floor in a portion of the office park in which they worked. Because Titan failed to ventilate its worksite properly, the TIAH infiltrated the women's office. They were exposed to TIAH
and developed significant physical ailments, including acute chemically-induced asthma and ...