FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable
Thomas J. Prebil, Judge
R. Russell, Judge
Run Resources Corporation was sued by several minor
plaintiffs allegedly injured by toxic pollution released from
Doe Run's smelting facility in La Oroya, Peru. Doe Run
sued its insurer, St. Paul Fire and Marine Insurance Company,
for reimbursement of defense costs incurred during the
litigation of these claims. St. Paul denied any duty to
defend Doe Run, alleging coverage was barred under the
insurance policy's pollution exclusion. The circuit court
entered summary judgment in favor of Doe Run, finding the
pollution exclusion ambiguous and unenforceable. St. Paul
appeals. Because the pollution exclusion is not ambiguous,
coverage is barred and St. Paul has no duty to defend Doe
Run. The judgment is reversed, and this Court enters judgment
in favor of St. Paul pursuant to Rule 84.14.
is a Missouri corporation that produces lead and lead
concentrate through its mining, milling, and smelting
operations. While its primary business is in Missouri, Doe
Run also houses a metallurgical industrial complex in La
Oroya, Peru. In 2007, a class action lawsuit was filed
against Doe Run on behalf of individuals living in the
vicinity of the La Oroya facility, alleging bodily harm
caused by exposure to toxic emissions emanating from Doe
Run's facility. After the class action lawsuit was
voluntarily dismissed, more than 25 minor plaintiffs filed
individual lawsuits against Doe Run ("the Reid
lawsuits"). Each lawsuit raises identical allegations
that Doe Run released harmful substances, such as lead,
arsenic, cadmium, and sulfur dioxide, into the environment.
Plaintiffs claim these emissions created a dust that
permeated the surrounding air and water, "enter[ing] and
settle[ing] inside the minor plaintiffs' houses and
… on … [their] furniture, clothing, water, and
crops." Litigation in the Reid lawsuits is ongoing.
2010, Doe Run filed suit in St. Louis County Circuit Court
against four insurance companies, not including St. Paul,
seeking reimbursement of costs incurred defending against the
Reid lawsuits. Doe Run added St. Paul to the suit in 2012
under St. Paul's Commercial General Liability Policy. The
policy provided two terms of general liability insurance to
Doe Run, spanning from December 2005 to November 2007.
Subject to its terms, conditions, and exclusions, the policy
covers bodily injury and property damage arising during the
policy period for any event occurring outside the United
Paul denied it was legally obligated to defend Doe Run, and
both parties moved for summary judgment. St. Paul argued the
policy's pollution exclusion barred coverage of the
underlying allegations in the Reid lawsuits. St. Paul also
denied coverage under the policy's "other
insurance" provision, which eliminates any duty to
defend when the policy provides excess, rather than primary,
coverage. In the alternative, St. Paul argued if the court
did find a duty to defend, St. Paul need not reimburse Doe
Run for any costs incurred before March 2012, when Doe Run
first tendered to St. Paul the defense of the Reid lawsuits,
and it did not owe Doe Run any prejudgment interest. Doe Run
argued the pollution exclusion was ambiguous and, because
ambiguous policies must be construed against the insurer, St.
Paul could not avoid its duty to defend under the policy. Doe
Run also argued St. Paul was a primary insurer of Doe Run and
the policy's other insurance provision could have no
preclusive effect on coverage. The trial court entered
summary judgment in favor of Doe Run, finding the pollution
exclusion ambiguous and that St. Paul is a primary insurer of
Doe Run and, therefore, has a duty to defend.
a trial on damages, St. Paul filed a motion in limine to
prevent Doe Run from recovering any defense costs incurred
before it officially demanded defense from St. Paul. During
the trial, St. Paul filed a motion for judgment under Rule
73.01, again arguing it could not legally be required to
reimburse Doe Run for any costs incurred prior to Doe
Run's tender of defense. The trial court denied both
motions. It entered judgment against St. Paul and awarded Doe
Run approximately $1.75 million for unpaid defense costs plus
prejudgment interest. Two months later, the trial court
entered its final judgment, reiterating its core findings as
to St. Paul's duty to defend, St. Paul's breach of
that duty, and the damages owed. The court awarded Doe Run
$2.1 million in damages and prejudgment interest and $12, 000
in costs. St. Paul appeals.
Paul asserts four points on appeal, arguing the trial court
erred by: (1) finding St. Paul owes a duty to defend Doe Run
because the unambiguous pollution exclusion bars defense
coverage; (2) finding St. Paul has a duty to defend Doe Run
because the other insurance provision precludes defense
coverage; (3) awarding defense costs to Doe Run incurred
before the March 2012 tender of the Reid lawsuits to St.
Paul; and (4) awarding prejudgment interest to Doe Run.
Because this Court finds the pollution exclusion unambiguous
and enforceable, the trial court's judgment is reversed
and judgment is entered in favor of St. Paul pursuant to Rule
review of summary judgment is de novo. ITT
Comm'l Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is
appropriate when there is no genuine dispute of material fact
and the movant is entitled to judgment as a matter of law.
case presents an issue of first impression for this Court:
whether an insurance policy's general pollution exclusion
bars defense coverage of a toxic tort claim arising from
alleged industrial pollution. Because the pollution exclusion
is unambiguous and bars coverage, St. Paul does not have a
duty to defend Doe Run.
Interpreting Insurance Contracts
interpretation of an insurance contract is a question of law
and is given de novo review. Mendenhall v. Prop.
and Cas. Ins. Co. of Hartford, 375 S.W.3d 90, 92 (Mo.
banc 2012). When interpreting an insurance policy, this Court
gives the policy language its plain meaning, or the meaning
that would be attached by an ordinary purchaser of insurance.
Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718, 720
(Mo. banc 2008). If the policy language is clear and
unambiguous, it must be construed as written. Id. An
ambiguity exists only if a phrase is "reasonably open to
different constructions." Mendenhall, 375
S.W.3d at 92. Courts may not create an ambiguity when none
exists. Todd v. Mo. United Sch. Ins. Council, 223
S.W.3d 156, 160 (Mo. banc 2007).