[Cite as Bosserman Aviation Equip., Inc. v. U.S. Liab. Ins. Co., 183 Ohio App.3d 29, 2009-Ohio-2526.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY


BOSSERMAN AVIATION
EQUIPMENT, INC.,

        APPELLEE,
                                                                    CASE NO. 5-09-05
        v.

UNITED STATES LIABILITY
INSURANCE COMPANY,

        APPELLANT;
                                                                    OPINION

WILLIAMS,

        APPELLEE.


                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2008 CV 217

                                      Judgment Affirmed

                              Date of Decision:        June 1, 2009


APPEARANCES:

        Steven C. Betts, for appellee Bosserman Aviation Equipment, Inc.

        Emily W. Newman, for appellant.

        Bernard Bauer, for appellee Benjamin Williams.
Case No. 5-09-05


        ROGERS, Judge.

        {¶1} Defendant-appellant, United States Liability Insurance Co. (“U.S.

Liability”), appeals the judgment of the Hancock County Court of Common Pleas

denying its motion for summary judgment and granting summary judgment in

favor of Bosserman Aviation Equipment, Inc. (“Bosserman”). On appeal, U.S.

Liability argues that the trial court erred in denying its motion for summary

judgment and granting Bosserman’s summary-judgment motion, as the pollution-

exclusion clause contained within its insurance policy with Bosserman clearly and

unambiguously precludes coverage for an employee who sustained bodily injuries

as a result of a discharge or escape of pollutants caused by the insured. Based on

the following, we affirm the judgment of the trial court.

        {¶2} In March 2008, Bosserman filed a declaratory-judgment action

against U.S. Liability, demanding that U.S. Liability provide insurance coverage

and legal defense pursuant to the parties’ insurance policy for an intentional-tort

claim brought against it by Benjamin Williams, a former employee of Bosserman.1

The intentional-tort claim asserted by Williams alleged that during the course and

within the scope of his employment with Bosserman, he was exposed to benzine

and other harmful chemical agents contained in aircraft fuel while reconditioning

and repairing aircraft-refueling equipment, causing him to develop aplastic


1
 We note that Williams was also named as a defendant in the declaratory judgment action by Bosserman,
as he also had an interest in enforcing the insurance policy.


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Case No. 5-09-05


anemia. Williams further asserted that due to Bosserman’s knowledge of the

potential harm of regular and continuous exposure to these contaminants, and its

failure to provide adequate training and warnings regarding the exposure to the

contaminants and proper safety equipment to protect against the harmful effects of

the contaminants, Bosserman was liable for his lost wages and medical expenses

in excess of $25,000.

      {¶3} Subsequently, Williams filed a cross-claim against U.S. Liability,

asserting that he is entitled to coverage under the insurance policy between U.S.

Liability and Bosserman.

      {¶4} In August 2008, U.S. Liability filed a motion for summary judgment

against both Bosserman and Williams, stating that Bosserman is not entitled to

coverage for Williams’s claim pursuant to the language of the policy, which

excludes coverage for bodily injury arising from the discharge, dispersal, seepage,

migration, release, or escape of pollutants at or on the premises owned by

Bosserman, and that Williams lacks standing to bring a cross-claim, as Ohio law

precludes an injured party from directly suing the insurer of a tortfeasor because

the injured party is not deemed to be a third-party beneficiary to the liability-

insurance contract. Attached to the summary-judgment motion was a copy of the

insurance contact, which provided the following:




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Case No. 5-09-05


       2. Exclusions

       This insurance does not cover:
       ***
       F. “bodily injury” arising from the actual, alleged, or threatened
       discharge, dispersal, seepage, migration, release, or escape of
       pollutants:
       (1)    at or from any premises, site or location that is or was at any
       time owned or occupied by or rented or loaned to any insured;
       (2)    at or from any premises, site or location that is or was at any
       time used by or for any insured or others for the handling, storage,
       disposal, processing or treatment of waste or pollutants;
       (3)    which are or were at any time transported, handled, stored,
       treated, disposed of or processed as waste or pollutants by or for any
       insured or any person or organization for whom the “named insured”
       may be legally responsible; or
       (4)    at or from any premises, site or location on which any insured
       or any contractor or subcontractor working directly or indirectly on
       any insured’s behalf in performing operations:
              (a)     if the pollutants are brought to the premises, site or
              location in connection with such operations by the insured,
              contractor or subcontractor, or
              (b)     if the operations are to test for, monitor, clean up,
              remove, contain, treat, detoxify or neutralize or in any way
              respond to or assess the effects of pollutants.
       ***
       Pollutants means any solid, liquid, gaseous, or thermal irritant
       contaminant, including smoke, vapor, soot, fumes, acids, alkalis,
       chemicals and waste (which includes materials to be recycled,
       reconditioned or reclaimed) * * *


       {¶5} In September 2008, the trial court ordered the filing of Williams’s

deposition taken during the litigation for his intentional-tort claim against

Bosserman. In his deposition, Williams stated that his job at Bosserman consisted

of repairing tanks and parts of vehicles that were used to provide fuel to aircrafts;



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Case No. 5-09-05


that while working on the vehicles, he was exposed to aircraft fuel on several

occasions when it was drained out of hoses or tanks and into drain pans, including

when it sometimes spilled on the floor; that he could smell the aircraft fuel when it

was in the drain pans if he was in the proximity of the pans; that the smell of

aircraft fuel did not permeate the building, and he would have to walk within five

or eight feet of the fuel to smell it; that he was also required to go inside fuel tanks

and drill various holes and mount fittings; that while he was in the tanks, there

would sometimes be aircraft fuel residue at the bottom, which would get on his

boots, clothes, and hands; that he spent anywhere from fifteen minutes to an hour

and a half inside the tanks on each occasion, and that there were around ten

occasions when he was inside a tank that contained aircraft fuel; and that the only

other chemicals he came in contact with while employed at Bosserman were

aluminum cleaner, airplane paint stripper, and a chemical called Brake Clean, all

of which he used to perform various job tasks.

       {¶6} In February 2009, the trial court denied U.S. Liability’s motion for

summary judgment against Bosserman, granted U.S. Liability’s motion for

summary judgment against Williams’s cross-claim on the basis that Williams

lacked standing, and granted Bosserman’s motion for summary judgment. The

trial court stated the following in its judgment entry:

       The issue before the Court is whether the pollution exclusion
       language precludes coverage, as a matter of law, for the alleged


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Case No. 5-09-05


      injuries suffered by Williams. Based on the terminology used in the
      exclusion, and its interpretations by other courts, this Court
      concludes that, as a matter of law, the policy exclusion does not
      exclude coverage for injury resulting from exposure to fuel fumes in
      a confined area in the workplace.

      ***

      The language at issue in this case is commonly referred to as an
      “absolute pollution exclusion.” See Selm v. Am. States Ins. Co. (1st
      Dist. Sept. 21, 2001), Hamilton County No. C-10057, 2001 WL
      1103509, *3 * * *. The Supreme Court of Ohio considered the
      pollution exclusion in the context of carbon monoxide from a faulty
      residential heater. See Andersen [v. Highland House Co. (2001),] 93
      Ohio St.3d 547, * * * 757 N.E.2d 329. The “genesis” of the
      exclusion was to exclude intentional polluters from protection from
      the results of their improper or illegal conduct. * * * The Andersen
      Court then noted that, based on the purpose and history of that
      exclusion, the insured could reasonably believe that residential
      situations would not be excluded unless the insurer specified the
      exclusion. * * *

      ***

      The Andersen syllabus states: “Carbon monoxide emitted from a
      residential heater is not a ‘pollutant’ under the pollution exclusion of
      a commercial general liability insurance policy unless specifically
      enumerated as such.” Andersen, 93 Ohio St.3d at 547. * * *

      The pollution exclusion clause has been interpreted “to be clear and
      unambiguous in precluding coverage for claims arising from
      pollution.” Selm, 2001 WL 1103509, at *3. The question remains in
      each of the cases whether the language is unambiguous as to the
      circumstances of the alleged injury. * * *

      In the first case cited by Bosserman, the court addressed the issue of
      interpreting the terms of the pollution exclusion that required a
      “discharge, dispersal, release or escape” of the pollutant.
      Lumbermens Mut. Cas. Co. v. S-W Industries Inc. (6th Cir. 1994) 39
      F.3d 1324, 1336 (applying Ohio law). * * * [T]he Lumbermens


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Case No. 5-09-05


      court analyzed the “dispersal” language: “It strains the plain
      meaning, and obvious intent, of the language to suggest that these
      fumes, as they went from the container to [the injured party’s] lungs,
      had somehow been ‘discharged, dispersed, released or escaped.” Id.
      at 1336. The Lumbermens court defined each of the similar terms,
      i.e., “discharge, dispersal, release or escape,” to conclude that the
      confinement of the fumes in the immediate work area did not fit
      those definitions, even if the injurious product was a “pollutant.” Id.
      Defendant U.S. Liability argues that the “atmosphere” clause
      contained in the Lumbermens policy, which is not included in the
      policy at issue in the present case, makes that case distinguishable
      from the case before this Court. That distinction has been addressed
      by the Lumbermens court in a later decision, on which Bosserman
      also relies. See Meridian Mut. Ins. Co. v. Kellman, (6th Cir. 1999),
      197 F.3d 1178, 1184.

      * * * The Meridian court concluded “that the total pollution
      exclusion clause at bar does not shield the insurer from liability for
      injuries caused by toxic substances that are still confined within the
      general area of their intended use.” Id. * * * [T]hat panel, like the
      Lumbermens court, determined that the “localized injury” did not
      amount to a “discharge, dispersal, seepage, migration, release or
      escape of pollutants” under the exclusion language. Id. at 1185.

      * * * Given the Andersen decision, U.S. Liability cannot establish
      that its interpretation “ ‘is the only one that can be fairly placed on
      the language in question.’ ” Id. at 549 (citation omitted). The Court
      therefore concludes that aircraft fuel fumes that are confined to the
      tanker during repairs, as alleged in this action, are not “pollutants”
      under the exclusion clause.

      The Court further concludes, as an additional and alternative basis
      for its decision, that there is no allegation of the “discharge,
      dispersal, seepage, migration, release or escape” of the aircraft fuel
      or its fumes. * * * “A ‘discharge’ is defined as a ‘flowing or issuing
      out.’ To ‘disperse’ is defined as ‘to cause to breakup and go in
      different ways’; ‘to cause to become spread widely.’ A ‘release’ is
      defined as ‘the act of liberating or freeing: discharge from restraint.’
      An ‘escape’ is defined as an ‘evasion of or deliverance from what
      confines, limits, or holds.’” Lumbermens, 39 F.3d at 1336, quoting


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      Webster’s Third New Internat’l Dictionary (1986), 644, 653, 1917,
      774. * * * Like the localized injury in the Meridian case, Williams’
      alleged injury resulted from his presence in the immediate area of
      the fumes, in a confined space where the fuel was retained in its
      proper site. Thus, the Court can only conclude that the aircraft fuel
      and/or fumes were not discharged, dispersed, or released, nor did
      they seep or migrate to a place where they did not belong or where
      they were not intended to be.

      ***

      Based on the foregoing analysis, the Court concludes that reasonable
      minds could come to only one conclusion and that conclusion is
      adverse to U.S. Liability on the issue of the application of the
      pollution exclusion clause. The Court therefore concludes that, as a
      matter of law, Bosserman is entitled to summary judgment in its
      favor.

      {¶7} It is from this judgment that U.S. Liability appeals, presenting the

following assignment of error for our review:

      The trial court erred in denying appellant’s motion for summary
      judgment in part, and instead granting summary judgement [sic] in
      favor of appellee Bosserman Aviation Equipment, Inc. As it relates
      to the “pollution exclusion clause” in the applicable insurance
      policy.

      {¶8} In its sole assignment of error, U.S. Liability argues that the trial

court erred in denying its motion for summary judgment and granting summary

judgment to Bosserman. Specifically, U.S. Liability asserts that the clear and

unambiguous language of the pollution-exclusion clause in the insurance contract

precludes coverage for the injuries suffered by Williams, as his injuries arose as




                                       -8-
Case No. 5-09-05


the result of exposure to aircraft fuel through fuel spills and his work on tanks

containing a residual amount of fuel. We disagree.

      {¶9} An appellate court reviews a summary-judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.

Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court utilized different or erroneous reasons as the basis

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib.

Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25, citing State ex rel. Cassels v.

Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222. Summary

judgment is appropriate when, looking at the evidence as a whole: (1) there is no

genuine issue as to any material fact, (2) reasonable minds can come to but one

conclusion, and that conclusion is adverse to the party against whom the motion

for summary judgment is made, and, therefore, (3) the moving party is entitled to

judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick Chem. Corp.

(1995), 73 Ohio St.3d 679, 686-687. If any doubts exist, the issue must be

resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65

Ohio St.3d 356, 358-359.

      {¶10} The party moving for summary judgment has the initial burden of

producing some evidence that demonstrates the lack of a genuine issue of material

fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. In doing so, the moving



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party is not required to produce any affirmative evidence, but must identify those

portions of the record that affirmatively support his argument. Id. at 292. The

nonmoving party must then rebut with specific facts showing the existence of a

genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings. Id.; Civ.R. 56(E).

       {¶11} “A policy of insurance is a contract and like any other contract is to

be given a reasonable construction in conformity with the intention of the parties

as gathered from the ordinary and commonly understood meaning of the language

employed.” Dealers Dairy Prods. Co. v. Royal Ins. Co. (1960), 170 Ohio St. 336,

paragraph one of the syllabus. Courts are not permitted to rewrite the language of

a contract when the intent of the parties is evident through the clear and

unambiguous contractual provisions. Hybud Equip. Corp. v. Sphere Drake Ins.

Co. Ltd. (1992), 64 Ohio St.3d 657, 665. Additionally, “ ‘[w]here exceptions * * *

are introduced into an insurance contract, a general presumption arises to the

effect that that which is not clearly excluded from the operation of such contract is

included in the operation thereof.’ ” Andersen v. Highland House Co. (2001), 93

Ohio St.3d 547, 549, quoting Home Indemn. Co. of New York v. Plymouth (1945),

146 Ohio St. 96, paragraph two of the syllabus. Accordingly, in order for an

insurer to defeat coverage through a clause in the insurance contract, it must

demonstrate that the clause in the policy is capable of the construction it seeks to



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give it, and that such construction is the only one that can be fairly placed upon the

language. Id. at 549. “ ‘The insurer, being the one who selects the language in the

contract, must be specific in its use; an exclusion from liability must be clear and

exact in order to be given effect.’ ” Beaverdam Contracting v. Erie Ins. Co., 3d

Dist. No. 1-08-17, 2008-Ohio-4953, ¶18, quoting Lane v. Grange Mut. Cos.

(1989), 45 Ohio St.3d 63, 65.

       {¶12} Furthermore, when an insurance policy contains ambiguous

language, it is interpreted against the insurer and in favor of the insured unless

such an interpretation results in an unreasonable construction of the policy.

United Farm Family Mut. Ins. Co. v. Pearce, 3d Dist. No. 2-08-07, 2008-Ohio-

5405, ¶11, citing Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306,

2007-Ohio-4917, ¶ 7.

       {¶13} The party seeking to recover under an insurance policy bears the

burden of proof to demonstrate that the policy provides coverage for the particular

loss. Chicago Title Ins. Co. v. Huntington Natl. Bank (1999), 87 Ohio St.3d 270,

273. However, “when an insurer denies liability coverage based upon a policy

exclusion, the insurer bears the burden of demonstrating the applicability of the

exclusion.” Beaverdam Contracting, 2008-Ohio-4953, at ¶19, citing Continental

Ins. Co. v. Louis Marx & Co., Inc. (1980), 64 Ohio St.2d 399, syllabus.




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       {¶14} In the case at bar, U.S. Liability contends that the injuries Williams

suffered when exposed to aircraft fuel while employed at Bosserman are exempted

from coverage under the insurance policy because the absolute pollution-exclusion

provision contained within the policy excludes coverage for bodily injury “arising

from the actual, alleged, or threatened discharge, dispersal, seepage, migration,

release, or escape of pollutants.”

       {¶15} An absolute pollution-exclusion clause similar to the clause in this

case was discussed and interpreted by the Supreme Court of Ohio in Andersen, 93

Ohio St.3d 547.     In Andersen, a landlord and apartment manager brought a

declaratory-judgment action against the insurance company seeking coverage

under the policy for the accidental death and injury of two apartment residents due

to carbon monoxide emitted from a faulty heater. The insurance company claimed

that coverage was excluded under the policy due to an absolute pollution-

exclusion clause that provided that the insurance policy did not cover “ ‘[b]odily

injury’ or ‘property damage’ arising out of the actual, alleged or threatened

discharge, dispersal, seepage, migration, release or escape of pollutants * * * [a]t

or from any premises, site or location which is or was at any time owned or

occupied by, or rented or loaned to, any insured.” Id. at 548. In concluding that

the pollution-exclusion clause failed to affirmatively and unambiguously exclude

coverage for carbon-monoxide-related injuries and death and that carbon



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monoxide was not a “pollutant” within the ambit of the exclusion, the court found

that the history and purpose of these pollution-exclusion clauses promoted a

reasonable belief on the part of the landlord and apartment manager that the policy

would not exclude coverage for carbon-monoxide poisoning:

      Furthermore, the genesis of the pollution exclusion does not support
      the notion that it was created to preclude the kind of claim involved
      in this case. In June 1970, the insurance industry “went on record as
      being ‘against’ intentional polluters and promulgated the qualified
      pollution exclusion for insertion in all comprehensive general
      liability (CGL) insurance policies.” (Footnotes omitted.) Reiter,
      Strasser & Pohlman, supra, 59 U.Cin.L.Rev. at 1168. The insurance
      industry explained that “[a]ccidental pollution continued to be
      insured under a CGL policy, but deliberate polluters would remain
      uncovered, unable to use insurance to avoid the financial
      consequences of their acts. On the basis of these representations,
      nearly every state, including Ohio, allowed the introduction of this
      new, qualified pollution exclusion.” (Footnotes omitted.) Id.

      The exclusion disputed in the case at bar, the absolute pollution
      exclusion, “was drafted during the early 1980s and was incorporated
      into the standard form CGL [policies] in 1986.” Stempel, Reason
      and Pollution: Correctly Construing the “Absolute” Exclusion in
      Context and in Accord With Its Purpose and Party Expectations
      (1998), 34 Tort & Ins.L.J. 1, 5. * * * Further, “[t]he absolute
      exclusion was designed to bar coverage for gradual environmental
      degradation of any type and to preclude coverage responsibility for
      government-mandated cleanup[s].” Id.

Id. at 549-550. Furthermore, the court stated:

      “We would be remiss * * * if we were to simply look to the bare
      words of the exclusion, ignore its raison d'etre, and apply it to
      situations which do not remotely resemble traditional environmental
      contamination.”

Id. at 552, quoting Am. States Ins. Co. v. Koloms (1997), 177 Ill.2d 473, 492-493.


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       {¶16} Additionally, in Lumbermens Mut. Cas. Co. v. S-W Industries, Inc.

(C.A. 6, 1994), 39 F.3d 1324, the Sixth Circuit Court of Appeals applied Ohio law

to determine that a pollution-exclusion clause did not preclude coverage for an

employee’s intentional-tort claim against his employer for injuries he sustained

when exposed to toxic chemicals and dust while working in the employer’s

factory. In Lumbermens, the employee contracted a severe lung disease as the

result of working around toxic cements, solvents, and dust while employed to

cement strips of rubber onto rotating drums in a factory. The pollution-exclusion

clause contained within the insurance contract between the employer and the

insurer provided as follows:

       It is agreed that the insurance does not apply to bodily injury or
       property damage arising out of the discharge, dispersal, release, or
       escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals,
       liquids or gasses, waste materials or other irritants, contaminants or
       pollutants, into or upon land, the atmosphere, or any watercourse or
       body of water;

Id. at 1336.

       {¶17} In analyzing the clause, the court set out the definitions of discharge,

dispersal, release, and escape to determine whether the employee’s exposure to

toxic chemicals while working in the factory arose through one of those means in

order for the exclusion to apply.

       A “discharge” is defined as “a flowing or issuing out.” To
       “disperse” is defined as “to cause to breakup and go in different
       ways”; “to cause to become spread widely.” A “release” is defined


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       as “the act of liberating or freeing: discharge from restraint.” An
       “escape” is defined as an “evasion of or deliverance from what
       confines, limits, or holds.”

Id., citing Webster's Third New International Dictionary (1986) 644, 653, 1917,

774.

       {¶18} Applying the facts to these definitions, the court concluded that the

pollution-exclusion clause did not preclude coverage for the employee’s injuries,

as the fumes and dust to which he was exposed were confined to the portion of the

plant in which the employee worked and had not been “discharged, dispersed,

released or escaped” as provided in the exclusion. The court reasoned that “this

exclusion is intended to shield the insurer from the liabilities of the insured to

outsiders, either neighboring landowners or governmental entities enforcing

environmental laws, rather than injuries caused by toxic substances that are still

confined within the area of their intended use.” Id.

       {¶19} In analyzing the facts of this case to the law set forth under Andersen

and Lumbermens, we conclude that the pollution-exclusion clause did not clearly

and unambiguously exclude coverage for the injuries sustained by Williams. First,

we find dispositive the Supreme Court of Ohio’s discussion of the history of

pollution-exclusion clauses and their intended purpose, namely, to preclude

coverage for traditional environmental contamination.       Although the court in

Andersen found that carbon monoxide did not amount to a pollutant under the



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exclusion, the basis for that conclusion was a concern about precluding coverage

for factual situations outside the reasonable expectation of the exclusion. See

Southside River-Rail Terminal, Inc. v. Crum & Forster Underwriters of Ohio, 157

Ohio App.3d 325, 2004-Ohio-2723, ¶ 38-41 (stating that Andersen stands for the

idea that injuries resulting from an event that does not resemble traditional

environmental contamination do not fall within the protection of a pollution-

exclusion clause and that Andersen does not stand for the proposition that these

pollution-exclusion clauses are too broad to be enforceable). Although it is clear

that aircraft fuel would fall within the traditional definition of a pollutant for

purposes of this exclusion, it is equally clear that Williams’s exposure to the fuel

while conducting tasks within the normal course of his job duties in the confines

of his workplace was outside the reasonable expectation of the exclusion, as such

exposure is not analogous to the traditional environmental contamination to which

the clause was intended to apply.

      {¶20} Second, we find to be persuasive Lumbermens’ conclusion that a

pollution-exclusion clause of this nature does not apply to an exposure to toxic

chemicals confined within an employee’s work area, as there is no discharge,

dispersal, release, or escape of pollutants. Here, the evidence demonstrated that

Williams was exposed to aircraft fuel and its fumes over a period of several

months while working in fuel tanks and when occasionally encountering fuel that



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had been drained out of tanks or hoses and into drain pans. The evidence also

establishes that any exposure to fumes was limited to certain confined areas where

Williams worked, namely, in fuel tanks and around drain pans, as he testified that

the smell of fuel did not permeate the building and that he could not smell the fuel

unless he was within five to eight feet of it. Accordingly, we find that Williams’s

extended exposure to pollutants, namely aircraft fuel, was not the result of any

“discharge, dispersal, seepage, migration, release, or escape” as provided in the

clause. It would strain the logical and reasonable interpretation of those words for

us to find otherwise.

       {¶21} Finally, we note that U.S. Liability argues that there were occasions

when Williams was exposed to fuel due to spills, and, as such, that this constitutes

a discharge or release of pollutants that brings Williams’s injuries within the

exception to coverage contained within clause. However, the evidence establishes

that these spills were not a regular occurrence and were only minor spills from a

drain pan onto the floor that did not rise to the level of a “discharge, dispersal,

seepage, migration, release, or escape.”

       {¶22} Because we find that this pollution-exclusion clause did not clearly

and unambiguously exclude coverage for injuries sustained as the result of

prolonged exposure to aircraft fuel within the normal course of an employee’s

performance of his job duties and within the limited confines of an employee’s



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work area, we find that U.S. Liability has failed to meet its burden to show the

clear application of the exclusion, and, therefore, we must interpret the contract in

favor of Bosserman as providing coverage for Williams’s injury.

       {¶23} Accordingly, we find that the trial court did not err in denying U.S.

Liability’s summary-judgment motion and granting summary judgment to

Bosserman. Consequently, we overrule U.S. Liability’s assignment of error.

       {¶24} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment affirmed.

       PRESTON, P.J. and SHAW, J., concur.

                             _____________________




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