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10/05/95 ECONOMY PREFERRED INSURANCE COMPANY v.

October 5, 1995

ECONOMY PREFERRED INSURANCE COMPANY, A CORPORATION, PLAINTIFF-APPELLEE,
v.
JUDI A. GRANDADAM, NATHAN D. GRANDADAM, A MINOR, BY HIS MOTHER AND NEXT FRIEND, JUDI A. GRANDADAM, NICHOLAS W. GRANDADAM, A MINOR BY HIS MOTHER AND NEXT FRIEND, JUDI A. GRANDADAM, JAIME A. PIANO, ROBERT J. SCHOFIELD, A MINOR BY HIS FATHER AND NEXT FRIEND, JAIME A. PIANO, AND BRANDY J. PIANO, A MINOR, BY HER FATHER AND NEXT FRIEND, JAIME A. PIANO, DEFENDANTS-APPELLANTS, AND JOHN A TWARDOWSKI AND MARY E. TWARDOWSKI, DEFENDANTS.



Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois, No. 93 MR 15. Honorable Robert L. Carter, Judge, Presiding.

Released for Publication November 14, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Kent Slater, Justice Justice Slater delivered the opinion of the court: Stouder, P.j., and Breslin, J., concur.

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

Plaintiff, Economy Preferred Insurance Company (Economy), brought a declaratory judgment action, seeking a determination that the pollution exclusion clause in a homeowners and personal liability insurance policy precluded coverage for alleged damage to a home and injuries to its occupants caused by mercury being spilled in the home. Plaintiffs and defendants in the underlying suit were joined together as defendants in the declaratory judgment action. After the defendants filed their response, Economy moved for judgment on the pleadings. The circuit court granted the motion, finding that the pollution exclusion unambiguously precluded coverage for the underlying claim. We affirm.

On May 21, 1992, Judi Grandadam and a number of members of her household filed suit against John and Mary Twardowski. Their complaint alleged that on October 11, 1991, the Twardowski's minor son, Tim, removed a container of Mercury from the Twardowski home and brought it to the Grandadam home. The complaint further alleged that "in the course of playing with said mercury, the same became spilled in and scattered about the interior of the residence."

The complaint was in seven counts. The first count alleged property damage to the home; the other six counts were for personal injuries suffered by members of the household. All of the counts alleged various negligent acts on the part of the Twardowskis. The complaint described mercury as being toxic to human beings, and stated that "when unconfined and dispersed, [mercury] is readily transported by air and by touch and it is readily absorbed into the body through the air and through the skin, as a result of touching contaminated objects." The Twardowskis tendered defense of the claim to Economy.

Economy then filed a complaint for declaratory judgment, alleging it had no duty to defend the claim, because of a pollution exclusion clause in the liability policy it issued to the Twardowskis. The exclusion was worded as follows:

"SECTION II - EXCLUSIONS

2. Coverage E - Personal Liability, does not apply to:

g. any:

(1) bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.

The policy defines a "pollutant" as any "solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed." The parties to this appeal agree that mercury is a pollutant. Economy asserted in its complaint that it had no duty to defend because the Grandadams were alleging damage or injury as a proximate result of the discharge, dispersal, release, or escape of a pollutant. After the Twardowskis and Grandadams answered the complaint, Economy moved for judgment on the pleadings.

Following a hearing, the circuit court granted Economy's motion. The judge concluded that the phrasing of the exclusion was unambiguous, and stated that he was not going to read any additional requirements or exceptions into the plain language of the exclusion. The defendants now appeal, claiming that the trial court ...


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