finding fumes from concrete treatment to be a pollutant, and explaining “[t]he pertinent inquiry is not, as Madison contends, whether the policy’s definition of ‘pollutant’ is so broad that virtually any substance ... could be said to come within its ambit. Rather, guided by the principle that ambiguity (or the lack thereof) is to be determined by reference to a particular set of facts, we focus on the specific product at *312 issue”
How later courts described this case
- finding fumes from concrete treatment to be a pollutant, and explaining “[t]he pertinent inquiry is not, as Madison contends, whether the policy’s definition of ‘pollutant’ is so broad that virtually any substance ... could be said to come within its ambit. Rather, guided by the principle that ambiguity (or the lack thereof) is to be determined by reference to a particular set of facts, we focus on the specific product at *312 issue”
- concluding that pollution exclusion operated to deny coverage under subcontractor’s comprehensive general liability policy even though additional negligence claims, including negligent maintenance of construction site, were raised in the complaint; because all of these claims “arose out of’ the release of a pollutant
- stating that the ambiguity question is not “to be resolved in a vacuum” but “[r]ather contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts” (citations omitted)
- holding that we must interpret words in an insurance contract according to their “natural, plain, and ordinary sense” and we may rely on dictionary definitions to do so
Written by the judges who cited it.
The opinion
*617 NEWMAN, Justice,
dissenting.
I respectfully dissent because I do not believe that the trial court developed a sufficient record upon which to determine the applicability of the pollution exclusion to the allegations set forth in Mr. Ezzi’s Complaint. I am concerned that the trial court determined that Euco Floor Coat is not a pollutant without addressing the critical issue of the exact chemical composition of the product used at the Boeing/Vertol Helicopters facility and whether the fumes emitted from that product are a pollutant. As the Majority notes:
Included in the record is the Material Safety Data report prepared by Euclid Chemical Company for the product or products known by the trade names Floor Coat, Super Floor Coat, Rez-Seal, Pilocure, Super Pilocure and Eucocare. The report notes that ‘[tjhese products may contain approximately 3-4% Xylene ..., 2-3% Cumene ... 40% Trimethylbenze [sic] ... which are considered toxic chemicals, and 0.2 to 0.3 Styrene ..., which is a suspected carcinogen.’
Majority Opinion at 107 (emphasis added). Without a factual determination of the composition of the specific product at issue, I do not believe that the trial court could have reliably held that either the product or its fumes are pollutants. Accordingly, the grant of summary judgment in favor of Madison Construction based upon the physical properties of Euco Floor Coat is inappropriate. Therefore, I would vacate the Orders of the Superior Court and trial court, and remand with instructions to consider the issues set forth in this Opinion.