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September 22, 1997


Appeal from the Circuit Court of Cook County. Honorable Edwin M. Berman, Judge Presiding.

Rehearing Denied October 28, 1997. Released for Publication November 10, 1997.

The Honorable Justice Gallagher delivered the opinion of the court. Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: Gallagher

The Honorable Justice GALLAGHER delivered the opinion of the court:

This consolidated appeal raises an issue of first impression in Illinois: whether the standard pollution exclusion found in general liability policies precludes coverage for personal injuries arising out of a minor's ingestion of lead paint and plaster chips inside his family's apartment.

The undisputed facts follow. Defendant Lawrence Willis, when he was two years old, lived with his mother, defendant Gloria Willis, in an apartment located at 8141 South Kingston in Chicago, Illinois (the premises). The apartment is the subject of a trust whereby defendant American National Bank & Trust Company (the Bank) is the legal owner of the premises and defendant Katalina Stringfield is the beneficial owner. Plaintiff sold Stringfield a general liability insurance policy covering the premises. The policy was in force from October 2, 1990 through October 2, 1992. Lawrence Willis and his family were tenants on the premises from approximately June 24, 1989 to June 24, 1991.

On March 10, 1994, Gloria Willis filed a lawsuit on behalf of her son against several entities, including Stringfield and the Bank. The complaint alleged that Lawrence Willis sustained lead poisoning due to his consumption of lead-based paint and plaster that had chipped, flaked, broken and fallen away from various exposed surfaces of the premises.

On June 17, 1994, plaintiff brought the present action, seeking a declaratory judgment that it had no duty to defend or indemnify Stringfield in Gloria Willis' action against her. Plaintiff included as defendants, Stringfield, the Bank, Lawrence Willis and his mother Gloria Willis, all of whom were parties in the original lawsuit filed by Gloria Willis. Plaintiff alleged, among other things, in an amended complaint filed on March 30, 1995, that insurance coverage was precluded by the pollution exclusion provision contained in the insurance policy issued to Stringfield. That provision states, in pertinent part, that the insurance did not apply:

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

(a) at or from premises owned, rented or occupied by the name insured[.]"

The policy defines "pollutants" 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."

On October 4, 1995, plaintiff filed its motion for summary judgment, which was granted by the trial court on December 19, 1995. On January 17, 1996, Gloria and Lawrence Willis filed their notice of appeal; on January 18, 1996, Stringfield and the Bank filed their notice of appeal. The appeals were subsequently consolidated. Our review of the trial court's summary judgment ruling, because it involves an issue of law, is de novo. See, e.g., Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333, 662 N.E.2d 397, 214 Ill. Dec. 831 (1996).

In Illinois, when an insurer relies upon an exclusionary clause in an insurance policy to deny coverage, the applicability of the clause must be clear and free from doubt because any doubts as to coverage will be resolved in favor of the insured. Economy Preferred Insurance Co. v. Grandadam, 275 Ill. App. 3d 866, 869, 656 N.E.2d 787, 212 Ill. Dec. 190 (1995). "If the words in the policy are unambiguous, a court must afford them their plain, ordinary, and popular meaning. [Citation.] However, if the words in the policy are susceptible to more than one reasonable interpretation, they are ambiguous [citation] and will be construed in favor of the insured ***." (Emphasis omitted.) Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108-09, 607 N.E.2d 1204, 180 Ill. Dec. 691 (1992). The determination of whether certain language is ambiguous rests upon whether it is susceptible to more than one reasonable interpretation. Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179, 620 N.E.2d 355, 189 Ill. Dec. 387 (1993).

We start our analysis by looking at the pivotal term "pollutant." As noted previously, the policy defines "pollutant" as an "irritant" or "contaminant." These terms were examined by the seventh circuit in Pipefitters Welfare Educational Fund v. Westchester Fire Insurance ...

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