In this insurance coverage action, Brey and Katrina Barrett, as assignees of Atlanta Gas Light Company “AGL”, appeal from the trial court’s orders dismissing their claims against AGL’s excess-liability insurer, National Union Fire Insurance Company of Pittsburgh “National Union”, and Garner and Glover Company, the insurance broker who procured the National Union insurance policy. The Barretts argue that the trial court erred in holding: i that natural gas constitutes a “pollutant,” as that term is defined in the Policy; and ii that Mr. Barrett’s injuries “arose out of” the release or dispersal of natural gas, as opposed to the negligence of AGL’s employees. We agree and therefore reverse the trial court’s orders of dismissal. We review a trial court’s order dismissing a plaintiff’s complaint de novo, and will affirm the same only where i the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted therein and ii the defendant establishes that the plaintiff could not possibly introduce evidence sufficient to warrant a grant of the relief sought. In making this analysis, we view all of the plaintiff’s well-pleaded material allegations as true, and view all denials by the defendant as false, noting that we are under no obligation to adopt a party’s legal conclusions based on these facts. Citations and punctuation omitted. Love v. Morehouse College .1 So viewed, the record shows that in July 2001, Brey Barrett was an employee of Coosa Valley Contractors, Inc. “CVC”, a company that installs natural-gas pipelines. CVC had entered into a Pipeline Construction Agreement with AGL, under which CVC agreed to install, or to assist AGL with the installation of, main gas lines, service gas lines, and gas meters. On July 2, 2001, Barrett was assisting two AGL employees with the installation of three taps on a main gas line that had been installed by CVC.2 These taps were apparently comprised of several pieces, including a valve and a completion plug. During the installation of the third and final tap on the line, an AGL employee lost the completion plug when it fell into the valve. To retrieve the completion plug, AGL employees used a device known as a “looking glass.” This device bolted to the gas line, through which natural gas was flowing; the user then looked through the device and, using a rod with a hook attached, attempted to hook the completion pug and pull it from the valve. To be able to see the completion plug, however, it was necessary to eliminate glare by blocking light from shining on the looking glass and then using a flashlight to see the fallen object. The two AGL employees working with Barrett each tried unsuccessfully to retrieve the completion plug. The first employee made two separate attempts, with each attempt lasting approximately 15 minutes. In between these two attempts, the second employee also tried, for approximately 15 minutes, to extract the completion plug. Following these unsuccessful attempts, Barrett went into the excavation ditch where the gas line was located and, after approximately two hours, extracted the completion plug. While he was working to retrieve the completion plug, Barrett was covered by a rain poncho to prevent glare on the looking glass, and he took only two to three short breaks. Over the course of the two hours, natural gas accumulated under the rain poncho, creating an oxygen-deficient atmosphere. As a result of his exposure to this atmosphere, Barrett suffered a permanent and disabling brain injury.
Barrett and his wife sued AGL in January 2003, alleging that his injuries resulted from the negligent and reckless conduct of AGL’s employees. Specifically, the Barretts alleged that Barrett was under the supervision of both of the AGL employees working on the tap installation and that each of these employees “had obtained the highest level of safety training offered by AGL.” This training included instruction on how to test for oxygen levels, the requirement that respirators or supplied air be used in confined spaces where natural gas might accumulate, and how to use such respirators or supplied air. Barrett, however, had never received any safety training regarding working with “live” gas and “had always been told that natural gas would not hurt him.” All of the AGL witnesses deposed in the underlying lawsuit testified that the use of respirators and supplied air was required in a confined area. Additionally, the Barretts’ expert witness testified that AGL’s failure to test for oxygen levels in the excavation ditch and to consider that ditch a “confined area,” once there had been prolonged exposure to natural gas, constituted negligence, and showed a reckless indifference towards the safety and welfare of those working in the ditch.
