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LEGAL

Insurer Had Duty to Defend in Lead Paint Lawsuit * n insurance company had the duty to defend an insured The trial court denied Lititz’s motion for summary judg- property owner in a lawsuit involving alleged injuries suf- ment, saying that the the definition of pollutants and the trans- ■ ■fered by a child from lead paint in a rental apartment, the mission of them were ambiguous in this case. It said that terms Pennsylvania Supreme Court has ruled. The court said that the such as “discharge” and “dispersal” were terms denoting envi- poUution exclusion clause in the policy did not apply to slow ronmental pollution. The court said that Lititz had a duty to degradation that allows paint to be ingested, even though lead defend. Both parties appealed. paint can be considered a pollutant. The stete’s Superior Court reversed, saying Steven Brown, a minor, lived in a residential , the insurer had no duty to defend because lead­ rental property owned by Clifford and Barbara Pollution exclu­ based paint was a pollutant and the language in Steely from 1988 to 1993, and then lived two the exclusion encompassed “all types and years in a rental property owned by Jack and sion did not degrees of movement.” Shirley Yeager. In 1996, Steven’s mother, Ethel PTirnTnnJl^C tllP “We conclude that the definition of pollutant Brown, sued the Steelys and Yeagers alleging CllL-Ullipdba UlC ...unambiguously encompasses lead-based negligence, breach of impUed warranty of ha1> slow deteriora- P^int,” said the state’s Supreme Court in anoth- itabilityJand ------- misrepresentation. ----------- J. She alleged ----------------------- that. , J,-------- , er reversal. It endorsed a plain-meaning ap- Steven was injured by lead poisoning and suf- tlOIl 01 Icsd Paillt proach, but said it is necessary to focus on the fered from neurodevelopmental delay. , . , nartimlnr materials particular motpriaie wtiAn when H..tprmininnr determining whether The Steelys were insured under commercial in housing. there has been a discharge, dispersal, release or general liability policies issued by the Lititz ------------------ escape. “The critical question is whether the Mutual Insurance Co. and the insurer sought a process by which lead-based paint becomes declaratoryjudgment from a state court as to whether the pol­ available for human ingestion/inhalation involves a type of icy’s pollution exclusion relieved it of responsibility. The exclu- motion” under the exclusion, said the court “One would not sion covered “bodily injury or property damage arising out of ordinarily describe the continual, imperceptible and inevitable the actual, alleged or threatened discharge, dispersal, release deterioration of paint...as a discharge, a release or an es- or escape of pollutants.” It defined pollutants as “any solid, liq- cape....We conclude, therefore, that the pollution exclusion uid, gaseous or thermal irritant or contaminant, including clause does not preclude coverage.” Lititz Mutual Insurance Co. smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” w Clifford Steely, J-61-2001 (Sup. Ct. Pa. Mid. Dist., Nov. 30, 2001). reject all bids and waive any for­ only Sims to revise its bid based on the City Could Rebid Job rightFiveto companies malities. reduce scope. The trial court denied the With Reduced Scope Each bid on the project. city’s request to deny Sims’ claims before of the bids was more than $100,000 trial. over the city’s budget The lowest bid was The city appealed to the Georgia contractor whose low bid exceeded a submitted by Sims Asphalt Co. Inc. for Court of Appeals and won. “While the A:icity’s budget did not have a right to be $339,225. The city then reduced the city might have chosen to adjust the the only contractor to submit a reduced scope of the project and asked the com­ scope of the project only with Sims after bid after the city’s reduced the scope of panies to revise their bids. Lewis Con­ it submitted die initial lowest bid, the city work, a Georgia appeals court ruled. struction & Consulting Inc. submitted was not obligated to do that given the The City ofAlpharetta, Ga,, advertised the lowest revised bid of $223,685 and city’s clear right established in die adver­ for bids for the construction of a softball the city awarded the contract to Lewis. tisement for bids to reject all of the bids field and parking lot The city had allot­ Sims sued the city, arguing that the and vraive any formalities in the bidding ted $225,000 for the project The solici­ city should not have rebid the project to process.” Letchas v. Sims Asphalt Co., 550 tation stated that the city reserved the all the bidders, but should have allowed SJ:.2d (Ga. App. 2001).

9 “I gave EFCO the Challenge and

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18 enr/degember 17, 2001

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