        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2017 Term
                                 _______________                        FILED
                                                                     April 26, 2017
                                                                        released at 3:00 p.m.
                                    No. 16-1042                       RORY L. PERRY, II CLERK

                                                                    SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA

                        MOHAMMED ASHRAF, M.D.,
                          Plaintiff Below, Petitioner

                                         v.

    STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY,

             and WELLS FARGO INSURANCE SERVICES

                    OF WEST VIRGINIA, INC.,


                        Defendants Below, Respondents

                               ______________

          Certified Questions from the Circuit Court of Marion County

                    The Honorable Patrick N. Wilson, Judge

                            Civil Action No. 14-C-253


                    CERTIFIED QUESTIONS ANSWERED

                            _______________

                              Submitted: April 18, 2017
                                Filed: April 26, 2017

Chad C. Groome, Esq.	                 Trevor K. Taylor, Esq.
David A. Jividen, Esq.	               Taylor Law Office
Jividen Law Offices, PLLC	            Morgantown, West Virginia
Wheeling, West Virginia	              Counsel for Respondent State Auto
John R. Angotti, Esq.	                Property and Casualty Insurance Company
Angotti & Straface, LC
Morgantown, West Virginia	            David P. Cook, Jr., Esq.
Counsel for the Petitioner	           MacCorkle Lavender, PLLC
                                      Charleston, West Virginia
                                      Counsel for Respondent Wells Fargo
                                      Insurance Services of West Virginia, Inc.

JUSTICE KETCHUM delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


       1. A vacancy provision in a fire insurance policy which provides that the insurer is

allowed to reduce by 15% the stated amount of coverage payable for the total loss of a

building destroyed by fire is enforceable, where the building has been vacant for more than

60 consecutive days prior to the loss. The provision does not conflict with this State’s valued

policy statute, W.Va. Code, 33-17-9 [2005], or this State’s Standard Fire Policy adopted

pursuant to W.Va. Code, 33-17-2 [1957].



       2. A Pollutant Cleanup and Removal provision in a fire insurance policy, which

covers the expense of extracting pollutants from “land or water” at the insured premises, does

not apply to asbestos testing and removal, where the asbestos removed is located within the

fire-damaged structure.
Justice Ketchum:


       The Circuit Court of Marion County has certified two questions regarding a

commercial fire insurance policy issued to the petitioner, Mohammed Ashraf, M.D., (“Dr.

Ashraf”), by the respondent, State Auto Property and Casualty Insurance Company (“State

Auto”). Respondent Wells Fargo Insurance Services of West Virginia, Inc. (“Wells Fargo”),

the named insurance agent on the policy, handled the sale of the policy issued to Dr. Ashraf.



       The insured building, owned by Dr. Ashraf and his wife, was rendered a total loss by

fire. Dr. Ashraf raised two coverage issues in a declaratory judgment action which resulted

in the certified questions now before us. First, Dr. Ashraf challenged the reduction of the

covered building loss by 15% pursuant to the vacancy provision included in the State Auto

policy. Second, although Dr. Ashraf was afforded coverage for asbestos removed under the

policy’s debris removal coverage, he challenged State Auto’s denial of coverage for asbestos

removal under the policy’s separate coverage for pollutant removal.



       The certified questions and the circuit court’s answers are as follows:


               Where there is a covered total loss by fire under a fire insurance policy,
       may an insurer reduce the policy’s limit of coverage for the insured premises
       by fifteen percent (15%) pursuant to a “vacancy” provision in the policy? The
       circuit court’s answer: Yes.



                                               1

              Does a fire insurance policy that includes a “pollutant clean up and
       removal” provision that provides that the insurer will pay the insured’s
       expense to extract pollutants from land or water, provide coverage in excess
       of the “debris removal” coverage afforded by the policy for the removal of
       asbestos contained in a fire-damaged or destroyed structure? The circuit
       court’s answer: No.1



       For the reasons stated, this Court concludes that the circuit court answered the

certified questions correctly.



                                    I. Factual Background

       The facts pertaining to the certified questions are not in dispute and are largely set

forth in the circuit court’s certification order.



       In 1997, Dr. Ashraf and his wife purchased a building on Locust Avenue in the City

of Fairmont, Marion County. The purchase took place at a sheriff’s tax sale, and the amount

paid was $91,000.00. After renovations were completed, Dr. Ashraf and his wife opened the

building as an assisted living facility. The facility closed in 2006, and the building was

vacant thereafter. Almost six years later, on October 29, 2012, a fire rendered the building

a total loss.



       1
         Wells Fargo states that it made no coverage decisions regarding Dr. Ashraf’s
claims under the State Auto policy and takes no position regarding the certified questions
or the circuit court’s answers.

                                                2

       The building was insured under a commercial fire insurance policy issued by State

Auto. The named insured on the policy was Dr. Ashraf.



                                 A. The State Auto Policy

       The amount of insurance coverage on the building stated in the State Auto policy was

$410,555.00. The policy provided adjustments for inflation, raising the stated total policy

coverage limit to $420,228.35 on the building. In addition, the business personal property

was covered under the State Auto policy in the amount of $21,632.00, which, according to

Dr. Ashraf, provided, with adjustments, personal property coverage of $22,141.69. In

addition to the building and personal property coverage, the State Auto policy provided

separate coverages for debris removal and pollutant removal.



                        B. Insurance Proceeds Paid by State Auto

       Dr. Ashraf reported the fire loss to State Auto. In response, State Auto told Dr.

Ashraf that, if the building had been vacant for more than sixty consecutive days, the amount

of coverage payable for the loss would be reduced by 15% pursuant to the policy’s vacancy

provision.



       In the meantime, the City of Fairmont issued notices to Dr. Ashraf asserting the need

to demolish the fire-destroyed building and that it would file a lien for debris removal if the


                                              3

City demolished and removed the building. See W.Va. Code, 38-10E-1 [2010] (providing

a lien in favor of a municipality against fire insurance proceeds for debris removal).

Subsequently, Dr. Ashraf demolished and removed the fire-destroyed building, and no lien

was filed.



       In September 2013, State Auto sent Dr. Ashraf a check in the amount of $25,000.00.

In an accompanying letter, State Auto informed Dr. Ashraf that the check was an advance,

pending completion of the investigation of the claim. Thereafter, by letter dated January 28,

2014, State Auto sent Dr. Ashraf two checks: $332,194.10, representing coverage for the

building loss, and $22,141.69, representing coverage for the business personal property loss.



       The January 28, 2014, letter stated that the initial adjusted policy limit for the building

of $420,228.35 was reduced by $63,034.25, a 15% reduction under the policy’s vacancy

provision. That reduction, with the previous $25,000.00 advance, resulted in $332,194.10

in coverage for the building. State Auto explained:


              In Dr. Ashraf’s case, the building satisfies the definition to be
       considered vacant. In fact, this building appears to have been vacant for
       almost six years before the loss occurred. The loss at issue was a fire and that
       qualifies as a covered cause of loss. Because the building was vacant at the
       time of the loss and because this was a covered cause of loss, then State Auto
       is permitted, by the terms of the policy, to reduce the amount they would
       “otherwise pay” by 15%.



                                                4

       Finally, on March 3, 2014, State Auto, having verified the absence of a municipal lien,

sent Dr. Ashraf a $10,000.00 check for debris removal. No coverage was extended for

pollutant removal. Dr. Ashraf asserted that he incurred approximately $30,000.00 in

demolition and debris removal costs as a result of the fire. He further asserted that he

incurred an additional $4,925.00 in pollutant removal costs for the removal and testing of

asbestos.



                               II. Procedural Background

       On August 28, 2014, Dr. Ashraf filed a declaratory judgment action in the Circuit

Court of Marion County. The complaint consisted of five counts, the first two of which

resulted in the certified questions. In count I, designated “Stated Value of Policy,” Dr.

Ashraf alleged entitlement to the full policy limit for building coverage in the amount of

$420,228.35. Dr. Ashraf alleged that State Auto improperly reduced that amount by 15%

under the policy’s vacancy provision. In count II, designated “Coverage for Pollutant

Removal,” Dr. Ashraf alleged entitlement to the costs he incurred for the removal and testing

of asbestos under the policy’s Pollutant Cleanup and Removal coverage. Dr. Ashraf alleged

that asbestos is a pollutant and, therefore, a subject of coverage under the State Auto policy

in addition to coverage for debris removal.2



       2
        Counts III and IV alleged unfair claim settlement practices, bad faith, and the tort
of outrage against State Auto, and count V alleged negligence against Wells Fargo.

                                               5

       In January 2015, Dr. Ashraf and State Auto filed motions for summary judgment.

Regarding count I, Dr. Ashraf asserted that the policy limit for the building coverage should

not have been reduced by 15% because the State Auto policy was a “valued policy” under

W.Va. Code, 33-17-9 [2005], which requires that the face value of the policy be paid in the

event of a total loss by fire. W.Va. Code, 33-17-9 [2005], provides in relevant part: “All

insurers providing fire insurance on real property in West Virginia shall be liable, in case of

total loss by fire or otherwise, as stated in the policy, for the whole amount of insurance

stated in the policy, upon such real property.”3



       In conjunction with the statute, Dr. Ashraf cited an included endorsement in the State

Auto policy entitled “West Virginia Changes,” section C.1. of which stated: “In case of total

loss by fire or other covered cause of loss, we will pay the Limit of Insurance stated in this




       3
           W.Va. Code, 33-17-9 [2005], provides in its entirety:

              All insurers providing fire insurance on real property in West
       Virginia shall be liable, in case of total loss by fire or otherwise, as stated in
       the policy, for the whole amount of insurance stated in the policy, upon
       such real property; and in case of partial loss by fire or otherwise, as
       aforesaid, of the real property insured, the liability shall be for the total
       amount of the partial loss, not to exceed the whole amount of insurance
       upon the real property as stated in the policy. This section does not apply
       where such insurance has been procured from two or more insurers
       covering the same interest in such real property.

                                               6

Coverage Part applicable to the real property.”4 According to Dr. Ashraf, the statute and the

“West Virginia Changes” section of the policy nullified the 15% vacancy reduction.



       Regarding count II, Dr. Ashraf asserted that he is entitled to summary judgment

because asbestos, a harmful irritant commonly abated in the building demolition process,

should be included within the meaning of “pollutant” under the policy. Accordingly, Dr.

Ashraf argued that any ambiguity as to the scope of coverage for pollutant removal must be

strictly construed against State Auto.



       State Auto’s motion for summary judgment also concerned counts I and II of the

complaint. As to count I, State Auto acknowledged that the policy issued to Dr. Ashraf was

a valued policy under W.Va. Code, 33-17-9 [2005]. State Auto did not contest the value of

the building or its total loss by fire. However, State Auto asserted that a valued policy does

not operate to nullify conditions and exclusions included in such a policy in anticipation of

acts which increase the risk to the covered property. According to State Auto, the vacancy


       4
         Dr. Ashraf states that the “West Virginia Changes” provision was included in
policies like the State Auto policy as the result of the West Virginia Insurance
Commissioner’s Informational Letter No. 10, issued in January 1980, entitled “Valued
Policy Law.” Referring to W.Va. Code, 33-17-9, the Informational Letter states: “In the
case of total loss by fire or otherwise, as stated in the policy, (the Company) agrees to pay
the whole amount stated in the policy declarations upon the real property insured.”

       We note that the former W.Va. Code, 33-17-9 [1957], effective in 1980, was
substantially the same as W.Va. Code, 33-17-9 [2005], currently in effect.

                                              7

provision, allowing the 15% reduction, is such an anticipatory limitation, especially operable

here where the building was vacant for almost six years prior to the October 29, 2012, fire.



       In addition, State Auto relies on its West Virginia Standard Fire Policy, the provisions

of which were adopted in W.Va. Code, 33-17-2 [1957].5 Under the Standard Fire Policy, no

coverage need be provided where the structure is vacant beyond a period of sixty consecutive

days. State Auto thus suggested that the policy issued to Dr. Ashraf was more favorable

than the Standard Fire Policy because it resulted in a 15% reduction of the limit of building

coverage, rather than a complete denial of the claim.




       5
        The Standard Fire Policy Provisions were incorporated in the policy pursuant to
W.Va. Code, 33-17-2 [1957], and constituted the New York-West Virginia Standard Fire
Policy cited by State Auto in its motion for summary judgment. W.Va. Code, 33-17-2
[1957], provides in part:

              No policy of fire insurance covering property located in West
       Virginia shall be made, issued or delivered unless it conforms as to all
       provisions and the sequence thereof with the basic policy commonly known
       as the New York standard fire policy, edition of one thousand nine hundred
       forty-three, which is designated as the West Virginia standard fire policy;
       except that with regard to multiple line coverages providing casualty
       insurance combined with fire insurance this section shall not apply if the
       policy contains, with respect to the fire portion thereof, language at least as
       favorable to the insured as the applicable portions of the standard fire policy
       and such multiple line policy has been approved by the commissioner.

(emphasis added).

                                              8

       As to count II, State Auto noted that coverage for pollutant removal was limited to an

insured’s expense for extracting pollutants from “land or water.” Denying that such was the

case here, State Auto indicated that the asbestos was confined to the components of the

building and was required by the demolition contractor to be abated prior to the removal of

the remnants of the building.



       The motions for summary judgment were held in abeyance, and on November 3, 2016,

the circuit court entered an order certifying two questions to this Court. The circuit court

answered both questions in favor of State Auto. On the first question, the circuit court

associated the vacancy provision with “risk of loss,” rather than the value of the building.

Consequently, the circuit court concluded that the vacancy provision was consistent with the

valued policy statute and West Virginia’s Standard Fire Policy and that the 15% reduction

was proper under the terms of the State Auto policy.



       On the second question relating to coverage for pollutant removal, the circuit court

concluded that, under the plain language of the policy, the phrase “land or water” referred

to the natural surroundings of the building. Therefore, the denial of coverage, in excess of

the coverage afforded by the debris removal provision, was proper.




                                             9

                                 III. Standard of Review

       The procedure and standard of review to be followed in certified question cases are

well-established. Pursuant to W.Va. Code, 58-5-2 [1998], a circuit court may, in its

discretion, certify a question of law to this Court. The question is processed by this Court

under Rule 17 of the Rules of Appellate Procedure. As to the merits of the circuit court’s

resolution of the question, we held in syllabus point 1 of Gallapoo v. Wal-Mart Stores, Inc.,

197 W.Va. 172, 475 S.E.2d 172 (1996): “The appellate standard of review of questions of

law answered and certified by a circuit court is de novo.” Accord syl. pt. 1, Master

Mechanical Insulation, Inc. v. Simmons, 232 W.Va. 581, 753 S.E.2d 79 (2013); syl. pt. 1,

Univ. Commons Riverside HOA v. Univ. Commons Morgantown, 230 W.Va. 589, 741 S.E.2d

613 (2013).



                                      IV. Discussion


                                   Certified Question 1


       The first question asks: Where there is a covered total loss by fire under a fire

insurance policy, may an insurer reduce the policy’s stated amount of coverage for the

insured premises by 15% pursuant to a “vacancy” provision in the policy?



       It is undisputed that the State Auto policy was a valued policy under W.Va. Code, 33­

17-9 [2005]. The policy included the West Virginia Changes endorsement, derivative from


                                             10

the statute, which stated that, in case of total loss by fire or otherwise, “we will pay the Limit

of Insurance stated in this Coverage Part applicable to the real property.” Thus, Dr. Ashraf

contends that the policy’s stated amount of coverage for the building should not have been

subject to the 15% reduction.



       The State Auto policy included two vacancy provisions. The first was set forth in the

policy’s “Standard Fire Policy Provisions” for commercial property:


              Conditions suspending or restricting insurance. Unless otherwise
       provided in writing added hereto this Company shall not be liable for loss
       occurring
              (a) while the hazard is increased by any means within the control or
       knowledge of the insured; or
              (b) while a described building, whether intended for occupancy by
       owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive
       days; or
              (c) as a result of explosion or riot, unless fire ensues, and in that event
       for loss by fire only.


(emphasis added).



See Vol. 5, Jeffrey E. Thomas, New Appleman on Insurance Law Library Edition §

43.03[10][c] (LexisNexis 2016) (The Standard Fire Insurance Policy “suspends all coverage

during periods of vacancy.”)




                                               11

       Although the Standard policy provision allowed the denial of coverage if there is a

vacancy in excess of sixty days, the policy had a second vacancy provision, under “Loss

Conditions,” which stated that, if a building is vacant for more than sixty consecutive days,

State Auto will reduce the coverage amount payable by 15%. That section of the policy

provided as follows:


       b. Vacancy Provisions
              If the building where loss or damage occurs has been vacant for more
       than 60 consecutive days before that loss or damage occurs:
              (1) We will not pay for any loss or damage caused by any of the
       following even if they are Covered Causes of Loss:
                      (a) Vandalism;
                      (b) Sprinkler leakage, unless you have protected the system
                       against freezing;
                      (c) Building glass breakage;
                      (d) Water damage;
                      (e) Theft; or
                      (f) Attempted theft.
              (2) With respect to Covered Causes of Loss other than those listed in
       b.(1)(a) through b.(1)(f) above, we will reduce the amount we would otherwise
       pay for the loss or damage by 15%.


       Although State Auto initially cited vandalism as a potential ground under the policy

for a complete denial of Dr. Ashraf’s claim, State Auto nevertheless provided coverage and

applied the 15% vacancy reduction. It is undisputed that, following the closure of the

assisted living facility in 2006, the building remained vacant for almost six years.




                                             12

       The valued policy statute has been in operation in West Virginia for many years. In

syllabus point 4 of Ritchie County Bank v. Fireman’s Ins. Co., 55 W.Va. 261, 47 S.E. 94

(1904), this Court held: “Chapter 33 of the Acts of the Legislature of 1899 [the valued policy

statute, currently W.Va. Code, 33-17-9], renders fire insurance companies, doing business in

this State, liable in case of total loss by fire or otherwise, as stated in the policy, on any real

estate insured by them for the whole amount of insurance stated in the policy of insurance,

upon said real estate.” In so holding, this Court adopted the language of the Court of

Appeals of Kentucky in Caledonian Ins. Co. v. Cooke, 101 Ky. 412, 41 S.W. 279 (1897), as

explanatory of the legislative intent concerning this State’s valued policy statute. In

Caledonian Ins. Co., the Kentucky court stated:


               It is perfectly evident that the legislature intended to remedy the evil of
       overvaluation in insurance, and, in doing so, followed the example of many
       other states of the Union, by making the insurer responsible for overvaluation;
       and, to do this, the remedy was and is to compel the insurer to pay the full
       amount (in case of total loss) for which they write their policy, and on which
       the premium is calculated and collected[.]



101 Ky. at 418, 41 S.W. at 280; cited in Ritchie County Bank, 55 W.Va. at 277, 47 S.E. at

101. As this Court similarly noted in Filiatreau v. Allstate Ins. Co., 178 W.Va. 268, 271, 358

S.E.2d 829, 832 (1987), the purpose of the valued policy statute is to “prevent insurance

companies from over-valuing the insured structure for premium purposes, thereby allowing

them to collect an excess premium and later contest the value when there is a loss.”


                                                13

Nevertheless, we further noted in Filiatreau that “there are situations where the valuation set

forth in the policy will not be binding,” as in the case of “fraud, misrepresentation, or

collusion.” 178 W.Va. at 271, 358 S.E.2d at 832.6



       A reduction of coverage payment pursuant to a vacancy provision has never been

addressed by this Court in the context of the valued policy statute. Various cases cited by the

parties establish that the valued policy statute was not repealed by the subsequent adoption

of the New York Standard Fire Policy and that, where the fire loss is total, the insurer has no

right to contest the amount of the loss. As such, those cases are not dispositive. See Nicholas

v. Granite State Fire Ins. Co., 125 W.Va. 349, 24 S.E.2d 280 (1943) (The Standard Fire

Policy does not supersede the valued policy act.); Null v. Stuyvesant Ins. Co., 114 W.Va. 179,

171 S.E. 416 (1933) (Any conflict between the New York Standard Fire Policy and the

valued policy statute should be resolved in favor of the valued policy statute); Teter v.

Franklin Fire Ins. Co., 74 W.Va. 344, 82 S.E. 40 (1914) (If the loss is total, the valued policy

statute renders adjustment of the loss unnecessary.); Hinkle v. North River Ins. Co., 70 W.Va.

681, 75 S.E. 54 (1912) (Where the loss is total, the insurance company has no right to dispute



       6
         See C. T. Drechsier, Annotation, Applicability of Valued Policy Statute to Partial
Fire Loss, 36 A.L.R.2d 619 (1954) (“To avoid overinsurance and to overcome the
haggling over the measure of recovery so typical in case of fire loss many state
legislatures have realistically enacted specific laws, frequently termed ‘valued policy
statutes,’ which expressly deal with valued insurance policies.” In the case of total loss,
the valuation in the policy is conclusive, “at least in the absence of fraud or mistake.”).

                                              14

the amount of the loss, policy provisions and the New York Standard Fire Policy

notwithstanding.).7



       State Auto does not contest the value of the building or its total loss by fire.

Moreover, the certified question before us does not concern whether Dr. Ashraf’s building

was overinsured. Under the Standard Fire Policy, included in the State Auto policy, a

vacancy beyond a period of sixty days authorized a complete denial of liability for the loss.

However, the vacancy provision allowing the 15% reduction is not located in the Standard

Fire Policy language. The 15% vacancy provision is in another section of the policy and

allowed the 15% reduction of the amount of insurance payable for the total loss of Dr.

Ashraf’s building by fire under the facts in this case.



       The vacancy reduction provision before this Court is, therefore, favorable to the

insured in comparison to the Standard Fire Policy Provisions of the State Auto policy and the

Standard Fire Policy adopted pursuant to W.Va. Code, 33-17-2 [1957]. Moreover, the 15%



       7
         See also Niagara Fire Ins. Co. of N. Y. v. Raleigh Hardware, Co., 62 F.2d 705
  th
(4 Cir. 1933) (The West Virginia valued policy statute, enacted to avoid litigation over
the amount of damages sustained and to prevent the evils arising from overinsurance, was
not repealed by legislation adopting a uniform fire insurance policy.); Sayer Brothers, Inc.
v. St. Paul Fire & Marine Ins. Co., 150 F.Supp.2d 907 (S.D. W.Va. 2001) (The purpose
of the West Virginia valued policy law is to prevent over-valuing the structure for
premium purposes, and it relieves the insured from proving the full value of the structure
when total loss occurs.).

                                              15

reduction applied to the stated value of the building in the policy does not subject the parties

to a factual dispute over valuation, a dispute intended to be avoided by the adoption of the

valued policy statute. Just as the policy’s inflation adjustment of the stated value of the

property results in a liquidated amount, so does the 15% reduction. Moreover, the 15%

reduction remains the same whether the vacancy is just over sixty consecutive days before

the loss occurs or, as in the case here, where the building remained vacant for a number of

years.



         Consequently, the cases cited by Dr. Ashraf which state that the valued policy statute

takes priority over the West Virginia Standard Fire Policy are not controlling. Furthermore,

the vacancy reduction provision does not offend the valued policy statute or the statute’s

derivative West Virginia Changes endorsement included in the State Auto policy. The 15%

reduction is an anticipatory limitation regarding the risk to a structure from extended vacancy.

The reduction was clearly operable here where the building was vacant for almost six years

prior to the October 29, 2012, fire. See Nathan v. Saint Paul Mut. Ins. Co., 68 N.W.2d 385

(Minn. 1955) (Under the Minnesota valued policy statute, recovery on the policy may be

precluded where there is a change in the condition of the property after the policy is issued

which increases the risk without the consent of the insurer.).




                                               16

       Accordingly, this Court holds that a vacancy provision in a fire insurance policy which

provides that the insurer is allowed to reduce by 15% the stated amount of coverage payable

for the total loss of a building destroyed by fire is enforceable, where the building has been

vacant for more than 60 consecutive days prior to the loss. The provision does not conflict

with this State’s valued policy statute, W.Va. Code, 33-17-9 [2005], or this State’s Standard

Fire Policy adopted pursuant to W.Va. Code, 33-17-2 [1957]. The answer of the circuit court

upholding the enforcement of the 15% reduction is correct.



                                   Certified Question 2

       In addition to the building and business personal property coverage, the State Auto

policy provided separate coverages for debris removal and pollutant removal. Although State

Auto sent Dr. Ashraf a $10,000.00 check for debris removal, no insurance payment was

extended for pollutant removal. Dr. Ashraf states that he incurred $4,925.00 in pollutant

removal costs for the removal and testing of asbestos following the fire. Thus, the certified

question asks whether the policy’s “pollutant clean up and removal” provision provides

coverage, in excess of the debris coverage, for Dr. Ashraf’s expense of removing and testing

the asbestos in the fire-destroyed building. The circuit court answered the question in favor

of State Auto.




                                             17

       The State Auto policy provided separate coverage for pollutant removal in the amount

of $10,000.00. Section d. under “Additional Coverages” stated:


               Pollutant Clean Up And Removal
               We will pay your expense to extract “pollutants” from land or water at
       the described premises if the discharge, dispersal, seepage, migration, release
       or escape of the “pollutants” is caused by or results from a Covered Cause of
       Loss that occurs during the policy period. * * *
               This Additional Coverage does not apply to costs to test for, monitor or
       assess the existence, concentration or effects of “pollutants.” But we will pay
       for testing which is performed in the course of extracting the “pollutants” from
       the land or water.


       “Pollutants” is defined in the policy 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.”



       Dr. Ashraf contends that removal costs were incurred in extracting the asbestos from

“land or water” following the fire. He asserts that, inasmuch as the building was part of the

land, the failure to extract a pollutant, including asbestos in the building, virtually guarantees

that the pollutant will be released onto the site of the insured property. Asserting that any

ambiguity in the provision should be construed in favor of coverage, Dr. Ashraf argues that

State Auto was required to provide pollutant removal coverage in addition to the coverage

provided for debris removal. See syl. pt. 4, Nat’l Mut. Ins. Co. v. McMahon & Sons, Inc., 177

W.Va. 734, 356 S.E.2d 488 (1987) (“It is well settled law in West Virginia that ambiguous


                                               18

terms in insurance contracts are to be strictly construed against the insurance company and

in favor of the insured.”).



       However, the State Auto policy is plainly clear that to obtain pollutant clean up and

removal coverage, there must have been the discharge, dispersal, seepage, migration, release

or escape of the pollutant into the land or water, caused by or resulting from a covered cause

of loss, and the pollutant then extracted from the land or water.



       State Auto contends that an extraction of asbestos from “land or water” was not the

case here and the additional coverage was not warranted, since the asbestos was confined to

the components of the building and was required by the demolition contractor to be abated

before the building’s removal.8 Answering the certified question in favor of State Auto, the

circuit court concluded that under the plain language of the policy the phrase “land or water”

referred to the natural surroundings of the building, and, therefore, the denial of additional

coverage as to Dr. Ashraf’s claim was proper.




       8
         State Auto maintained before the circuit court that Dr. Ashraf’s evidence detailed
the removal, transport and legal disposal of asbestos relating solely to certain building
materials. The removal was required to allow for the building’s demolition. According
to State Auto, abatement or remedial work concerning “land or water” was not necessary.
During his deposition, Dr. Ashraf acknowledged that the asbestos had to be removed
prior to demolition.

                                             19

       The circuit court cited the decision of the United States District Court for the Southern

District of California in Ruffin Road Venture Lot IV v. Travelers Property Casualty Co. of

Am., 2011 WL 2463291 (S.D. Cal. June 20, 2011). In Ruffin Road, the air conditioning

system in the insured’s office building was damaged when a water pipe burst, causing mud,

rocks and other debris to circulate through the system. The insured filed an insurance claim

for the cost of removing those substances from the air conditioning system and cited the

policy’s Pollutant Cleanup and Removal provision. That provision, similar to the provision

before this Court, stated that the insurer would pay the insured’s necessary and reasonable

expense “to extract ‘pollutants’ from land or water at the described premises, if the discharge,

dispersal, seepage, migration, release or escape of the ‘pollutants’ is caused by or results from

a ‘specified cause of loss’ which occurs: (a) At the described premises; (b) To Covered

Property; and (c) During the policy period.”



       The District Court, in Ruffin, concluded that the Pollutant Cleanup and Removal

provision did not apply in the circumstances of the insured’s claim. First, noting that the

claim was limited to “the contamination of an internal, wholly contained air conditioning

system,” the District Court determined that the mud, rocks and other debris did not constitute

pollutants within the meaning of the Cleanup and Removal provision. Second, the District

Court concluded that the insured’s claim failed under the provision’s “land or water”

component. The District Court stated: “The ordinary and most reasonable reading of this


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language is that the provision is targeted at pollutants that have contaminated the natural

surroundings of the insured property - for example, chemicals that have leached into the soil,

or waste that has been discharged into a nearby stream.” In Ruffin, the District Court

emphasized that the water within the damaged air conditioning system was “not part of or in

contact with any naturally occurring body of water.”



       In the current matter, the Pollutant Cleanup and Removal provision is found in the

section of the State Auto policy entitled “Building and Personal Property Coverage Form.”

Subsection A.2.h. thereof states that covered property does not include: “Land (including land

on which the property is located), water, growing crops or lawns.” Thus, the plain language

of the policy distinguishes “land” and “water” for which coverage is not extended, unless and

until they have been affected by a pollutant within the meaning of State Auto’s Pollutant

Cleanup and Removal provision.9 Nothing in the record before us shows that land or water

in the context of that provision were affected by the asbestos found in this case in certain

materials within the damaged building.




       9
         See syl., Keffer v. Prudential Ins. Co. of Am., 153 W.Va. 813, 172 S.E.2d 714
(1970) (“Where the provisions of an insurance policy contract are clear and unambiguous
they are not subject to judicial construction or interpretation, but full effect will be given
to the plain meaning intended.”). Accord syl. pt. 5, Am. Nat’l. Property and Casualty Co.
v. Clendenen, 238 W.Va. 249, 793 S.E.2d 899 (2016).

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       The circuit court’s reliance on the opinion in Ruffin was, therefore, warranted, and it

correctly concluded that State Auto should not be required to provide pollutant removal

coverage in addition to the coverage it provided for debris removal. This Court holds that a

Pollutant Cleanup and Removal provision in a fire insurance policy, which covers the

expense of extracting pollutants from “land or water” at the insured premises, does not apply

to asbestos testing and removal, where the asbestos removed is located within the fire-

damaged structure.



       Accordingly, the answer of the circuit court to the second certified question is correct.



                                       V. Conclusion

       The certified questions having been answered, this matter is remanded to the Circuit

Court of Marion County for further proceedings.


                                                               Certified Questions Answered.




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