Kerr-McGee Corporation f/k/a Kemira, Inc. was sued by Alvin Finch, an employee of Tek-Wal Industrial Contractors, Inc., for injuries suffered while working on the premises of Kerr-McGee when another subcontractor’s employee negligently caused him to become exposed to the unintended release of the industrial chemical titanium tetrachloride wholly within the Kerr-McGee’s plant and without any escape of the industrial chemical into the environment caused or contributed to by Tek-Wal. Kerr-McGhee settled with Finch and sued Tek-Wal, among others, for indemnification under its construction contract with Tek-Wal to recover such expenses; however, Tek-Wal filed bankruptcy. Tek-Wal was insured by Georgia Casualty & Surety Company, and Georgia Casualty brought this declaratory judgment action to determine whether or not its total pollution exclusion endorsement applied. This exclusion stated “this insurance does not apply to ‘bodily injury’ or ‘property damage’ which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.” The exclusion defined pollutant to ” mean any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.” The trial court granted summary judgment to Georgia Casualty, holding that the pollution exclusion applied and that there was no ambiguity in the exclusion. We reverse the grant of summary judgment, because the exclusion under the facts of this case was ambiguous in that “ discharge, dispersal, seepage, migration, release or escape of pollutants” is ambiguous by not specifying where such must occur or who has caused it to result in non covered damages.
The exclusion states that “discharge, dispersal, seepage, migration, release or escape of pollutants at any time” is excluded; this limits where the pollution occurs to atmosphere, water, or soil, which is the external environment to the chemical plant. However, in specifying release to atmosphere, soil, and water, the exclusion does not specify where in regard to a chemical plant: inside the plant, outside the plant, under the plant, or anywhere within the plant in an uncontained state where there is no threat or escape of pollutants into the atmosphere, soil, or water.
