United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the motion of plaintiff Rice
Painting Company for summary judgment, pursuant to Rule 56,
Fed.R.Civ.P. Defendant Depositors Insurance Company has filed
a response in opposition and the issues are fully briefed.
All matters are pending before the undersigned United States
Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
The Raineri Contract
is a professional painting contractor. On June 10, 2013,
Raineri Construction (“Raineri”) hired plaintiff
to provide painting and remediation work as a subcontractor
on a St. Louis Public Schools' (“SLPS”)
project at Roosevelt High School. Complaint at ¶ 5 [Doc.
#7]. Raineri's contract with SLPS provided that
“all painted surfaces and buildings constructed prior
to 1980 should be assumed to contain lead within the paint,
” and that “Raineri was to require their
tradesmen to conduct their business in accordance with OSHA .
. . and USEPA's Renovation on Repair and Painting Rule
(RRP).” Raineri Const. LLC v. Special Admin. Bd. of
the Trans. Dist. of the City of St. Louis, Mo. at al.,
Cause No. 1522-CC10210, First Am. Pet. at ¶ 7
(“Raineri petition”). [Doc. # 38-8].
After plaintiff began work, SLPS's environmental
consultant conducted a site inspection for lead dust at
Roosevelt High School. Following this inspection, the
consultant issued a report that recommended cleaning the
areas that failed the “lead dust clearance
testing.” Id. at ¶ 22.
undertook cleanup operations between June 29, 2013, and
September 20, 2013. Id. at ¶ 23. SLPS incurred
substantial costs remedying the lead contamination and
refused to pay Raineri for its services until it was
reimbursed for these costs. See id. at ¶¶
25-26. Raineri filed suit against SLPS to recover the
remainder of its fees for the Roosevelt project. Raineri also
named plaintiff as a defendant to the suit on the theory that
plaintiff should be responsible for the damages if the court
found SLPS was not required to pay Raineri the remainder of
its fees. Id. at ¶ 27. Raineri alleges
in the underlying action that plaintiff failed to properly
scrape and remove the existing paint, secure the work site to
prevent the spread of lead contaminants to other areas,
follow required environmental precautions, require its
employees to wear protective equipment, and use proper
controls to minimize reintroducing lead into the air.
Id. at ¶ 58. Plaintiff claims it has incurred
significant expense to defend itself in the Raineri
proceeding. Statement of Uncontroverted Material Facts
(“SUMF”) at ¶ 15 [Doc. # 38].
The Depositors Insurance Company Policy
to the SLPS project, plaintiff purchased from defendant a
policy of commercial general liability insurance coverage
(the “Policy”) with a limited pollution coverage
endorsement (the “Pollution Endorsement”) for the
policy period of June 28, 2012 to June 28, 2013. [Doc. #
38-1]. After Raineri made demand on plaintiff for
indemnification [Doc. # 38-5], plaintiff made a written
demand upon defendant to provide a defense and
indemnification against SLPL's claims, pursuant to the
Pollution Endorsement. SUMF at ¶ 12. In response,
defendant determined that the claim was not covered by the
Policy and notified plaintiff that it was denying the claim.
Denial letter [Doc. # 38-7]. Plaintiff filed this declaratory
judgment action,  seeking a declaration that defendant is
obligated to provide a defense in the Raineri
relevant to this dispute, the Policy includes a
“Commercial General Liability Coverage Form” (the
“Coverage Form”), which sets out the basic
insuring agreement; an endorsement entitled “Limited
Pollution Coverage - Job Sites” (the “Pollution
Endorsement”); and an endorsement entitled
“Exclusion - Asbestos, Electro-Magnetic Radiation, Lead
and Radon” (the “Lead Exclusion”).
introductory paragraph of the Coverage Form states that
“[v]arious provisions in this policy restrict
coverage” and the insured should “read the entire
Policy carefully to determine rights, duties and what is and
is not covered.” Policy at p. 22 [Doc. # 38-1]. Section
1 of the Coverage Form states that defendant “will pay
those sums that the insured becomes legally obligated to pay
as damages because of property damage to which the insurance
applies.” Id. The Coverage Form also states
that defendant has the duty to defend the insured against any
suit seeking those damages. Id. However, this duty
to defend does not extend to an action against the insured
for damages to property or bodily injury to which the
insurance does not apply. Id.
Pollution Endorsement provides additional coverage beyond
what appears in the Coverage Form and provides in relevant
part: “We will pay those sums that the insured becomes
legally obligated to pay . . . [a]s clean-up costs because of
‘environmental damage' which directly results from
physical injury to tangible property . . . to which this
insurance applies. We will have the right and duty to defend
any ‘suit' seeking these damages. We may at our
discretion investigate any ‘pollution incident' and
settle any claim or ‘suit' that may result.”
Pollution Endorsement, Section A.1, Id. at p. 55.
Plaintiff argues it is entitled to a defense under this
provision. Complaint at ¶ 14 [Doc. # 7].
pollution insurance applies to environmental damage only if:
1) The . . . “environmental damage” arises out of