                          STATE OF MICHIGAN

                           COURT OF APPEALS



CHARLIE B. HOBSON and MARY L. HOBSON,                              UNPUBLISHED
                                                                   March 10, 2015
              Plaintiffs-Appellees,

v                                                                  No. 316714
                                                                   Wayne Circuit Court
INDIAN HARBOR INSURANCE COMPANY,                                   LC No. 12-008167-CK
XL INSURANCE AMERICA, INC., and XL
INSURANCE COMPANY OF NEW YORK,
INC.,

              Defendants-Appellants,

and

WILSON INVESTMENT SERVICE &
CONSTRUCTION, INC., WILSON
INVESTMENT SERVICE, CRESCENT HOUSE
APARTMENTS, CRESCENT HOUSE
APARTMENTS, L.L.C., W-4 FAMILY LIMITED
PARTNERSHIP, W-4 FAMILY, L.L.C., and
JAMES P. WILSON,

              Defendants-Appellees.


Before: O’CONNELL, P.J., and BORRELLO and GLEICHER, JJ.

O’CONNELL, P.J. (concurring).

       Where there is fire, there is smoke. I concur in the majority opinion, which upholds the
age-old relationship between smoke and fire.1 I write separately to note that there is another
reason to rule in plaintiffs’ favor. The insurance defendants’ policy provides that the pollution
exclusion does not even apply in cases of smoke caused by a fire on the insured premises.



1
  As the trial court noted when it denied the insurance defendants’ motion for summary
disposition in this case, “it was a fire” and “[a] fire has smoke.”


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        The insurance defendants contend that the trial court erred when it denied their motion
for summary disposition because the policy’s pollution exclusion in subdivision f. defines
pollution as “including smoke.” The insurance defendants base their argument around the
parties’ endorsement to subdivision f. of the insurance policy.2

       Initially, subdivision f. of the parties’ policy previously indicated that the pollution
exclusion did not exclude damage from a “hostile fire.” However, the parties changed
subdivision f. through a later endorsement that removed the “hostile fire” exception to that
provision. The pollution exclusion continued to exclude bodily injury and property damage
caused by “pollutants.” The policy defined “pollutants” to mean “any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke . . . .”

         The insurance defendants’ entire argument regarding the change in the pollution clause
constitutes smoke and mirrors. The final paragraph of Section I—Coverages, 2. Exclusions, on
the fifth page of the policy, provides that “[e]xclusions c. through n. do not apply to damage by
fire to premises while rented to you or temporarily occupied by you with the permission of the
owner.” The parties’ endorsement changed subdivision f. but did not change this portion of the
policy. The pollution exclusion at issue here is exclusion f., which falls alphabetically between
c. and n. By the plain language of the policy, exclusion f. does not apply in this case because the
Hobsons’ claim concerns “damage by fire to premises.”

       I would affirm the well-reasoned decision of the trial court on this additional ground.

                                                            /s/ Peter D. O’Connell




2
  The unintended consequences of the insurance defendants’ unique interpretation of the policy
would certainly lead to coverage disputes when a fire smolders but does not ignite, causing
smoke damage but no damage by flames. The insurance defendants’ interpretation of its fire
insurance policy would arguably negate liability for smoke damage from all fires they
purportedly insure against.


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