Stanford Law School - Robert Crown Law Library

Filed 8/14/03

IN THE SUPREME COURT OF CALIFORNIA

JOHN R. MACKINNON et al.,
Plaintiffs
and
Appellants,
S104543
v.
Ct.App. 4/2 E028662
TRUCK INSURANCE EXCHANGE,
San Bernardino County
Defendant and Respondent.
Super. Ct. No. RCV 42973

In this case, we consider the meaning of an exclusionary clause in a
comprehensive general liability (CGL) insurance policy that excludes injuries
caused by the “discharge, dispersal, release or escape of pollutants.” Specifically,
we are asked to determine whether that clause, a standard pollution exclusion
clause, applies to exclude injury to a tenant resulting from a landlord’s allegedly
negligent use of pesticides on his property. We conclude that in order for an
exclusionary clause to effectively exclude coverage, it “ ‘must be conspicuous,
plain and clear’ ” (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 271), and
that the pollution exclusion in question does not plainly and clearly exclude
ordinary acts of negligence involving toxic chemicals such as pesticides.
Accordingly, we reverse the contrary judgment of the Court of Appeal.
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I. STATEMENT OF FACTS
The following facts are undisputed. Truck Insurance Exchange (Truck
Insurance) issued a CGL insurance policy to MacKinnon, for the period of April
1996 to April 1997. That policy obligated the insurer to pay “all sums for which
[the insured] become[s] legally obligated to pay as damages caused by bodily
injury, property damage or personal injury.” The insurer must “pay for damages
up to the Limit of Liability when caused by an occurrence arising out of the
business operations conducted at the insured location.” Under “Exclusions” the
policy states: “We do not cover Bodily Injury or Property Damage (2) Resulting
from the actual, alleged, or threatened discharge, dispersal, release or escape of
pollutants: (a) at or from the insured location.” The terms “Pollution or
Pollutants” are defined, in the definitions section at the beginning of the policy, as
“mean[ing] any solid, liquid, gaseous or thermal irritant or contaminant, including
smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste materials. Waste
materials include materials which are intended to be or have been recycled,
reconditioned or reclaimed.”
Jennifer Denzin was a tenant in MacKinnon’s apartment building. She
requested MacKinnon to spray to eradicate yellow jackets at the apartment
building. MacKinnon hired a pest control company, Antimite Associates, Inc.
(Antimite), to exterminate the yellow jackets. Antimite treated the apartment
building for yellow jackets on several occasions in 1995 and 1996. On May 19,
1996, Denzin died in MacKinnon’s apartment building.
Denzin’s parents filed a wrongful death lawsuit against MacKinnon,
Antimite, and other defendants. They alleged that on or about May 13, 1996,
defendants negligently failed to inform Denzin that her apartment was to be
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sprayed with “dangerous chemicals,” and failed to evacuate her, as a result of
which she died from pesticide exposure. MacKinnon tendered his defense to
Truck Insurance under the CGL insurance policy.
On November 10, 1997, Truck Insurance retained counsel and filed a
responsive pleading to the complaint on behalf of MacKinnon. On December 23,
1997, Truck Insurance sent MacKinnon a letter advising him that, because an
immediate response was necessary, Truck Insurance had referred the Denzin
action to defense counsel in order to protect MacKinnon’s interests. Truck
Insurance added that it was still investigating the matter to determine if coverage
existed. Truck Insurance added that it did not intend to waive any provisions of
the insurance policy, and “Truck [Insurance] reserves all of its rights under the
terms, exclusions, and conditions of any policies issued to you.”
On June 3, 1998, Truck Insurance sent MacKinnon a letter advising that it
had concluded that the pollution exclusion precluded coverage for the Denzin
action and therefore Truck Insurance would be withdrawing its defense within 30
days. Truck Insurance later extended the withdrawal date to July 20, 1998.
In June 1998, MacKinnon retained counsel to represent him in the Denzin
action. MacKinnon, through his counsel, settled the Denzin action for $10,000
and then filed the instant insurance coverage action, claiming Truck Insurance
owed MacKinnon a duty to defend and indemnify him in the Denzin action.
MacKinnon’s action asserted causes of action for declaratory relief, breach of
contract, and breach of the implied covenant of good faith and fair dealing.
Truck Insurance moved for summary judgment on MacKinnon’s coverage
claims on the ground the pollution exclusion contained in the insurance policy
issued by Truck Insurance to MacKinnon, precluded coverage for the Denzin suit.
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MacKinnon opposed the motion. The trial court granted summary judgment based
on the following findings: (1) the Denzin action alleged the decedent died as a
result of exposure to a pesticide used to eradicate yellow jackets at her apartment
building; (2) the pollution exclusion in the Truck Insurance policy was clear and
unambiguous; (3) there was no potential for coverage for the Denzin action
because the injuries alleged in the Denzin complaint are excluded from coverage
by the pollution exclusion; and (4) because there was no potential for coverage,
MacKinnon’s breach of the good faith covenant cause of action also fails.
The Court of Appeal affirmed. It too found the clause unambiguous as
applied to MacKinnon’s claim, citing several cases from other jurisdictions giving
the exclusion a broad reading. We granted review.
II. DISCUSSION
In determining whether a summary judgment motion was properly granted,
“we review the trial court’s decision de novo, applying the rule that ‘[a] defendant
is entitled to summary judgment if the record establishes as a matter of law that
none of the plaintiff’s asserted causes of action can prevail.’ ” (Flatt v. Superior
Court (1994) 9 Cal.4th 275, 279.) The trial court’s principal ground for granting
summary judgment, and the Court of Appeal’s principal ground for affirming the
trial court, was a determination that the pollution exclusion found in MacKinnon’s
policy excluded coverage of Denzin’s wrongful death complaint. As discussed
below, interpretation of policy language is a question of law. We therefore must
determine, de novo, whether the pollution exclusion was properly interpreted by
these courts.
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The meaning of the current pollution exclusion has not received wide
attention in this state.1 However, the scope of the exclusion has been litigated
extensively in other jurisdictions. To say there is a lack of unanimity as to how
the clause should be interpreted is an understatement. Although the fragmentation
of opinion defies strict categorization, courts are roughly divided into two camps.
One camp maintains that the exclusion applies only to traditional environmental
pollution into the air, water, and soil, but generally not to all injuries involving the
negligent use or handling of toxic substances that occur in the normal course of
business. These courts generally find ambiguity in the wording of the pollution
exclusion when it is applied to such negligence and interpret such ambiguity
against the insurance company in favor of coverage. The other camp maintains
that the clause applies equally to negligence involving toxic substances and

1
The two published Court of Appeal cases addressing the current pollution
exclusion concern instances of traditional environmental industrial pollution,
which neither side disputes is within the scope of coverage. (Legarra v. Federated
Mutual Ins. Co. (1995) 35 Cal.App.4th 1472 [groundwater contamination from
petroleum plant]; Titan Corp. v. Aetna Casualty & Surety Co. (1994) 22
Cal.App.4th 457 [groundwater contamination from manufacturing plant].) The
same is true for federal cases applying California law. (See East Quincy Services
District v. Continental Ins. Co. (E.D.Cal. 1994) 864 F.Supp. 976, 979-980; Staefa
Control-System, Inc. v. St. Paul Fire and Marine Ins. Co. (N.D.Cal. 1994) 847
F.Supp. 1460, as amended (1994) 875 F.Supp. 656 [groundwater contamination
from former manufacturing plant]; Hydro-Systems, Inc. v. Continental Ins. Co.
(C.D.Cal. 1989) 717 F.Supp. 700 [hydrocarbon emissions from a manufacturing
plant], affd. (1991) 929 F.2d 472 [groundwater contamination from sewage-borne
bacteria].) These cases do not consider the primary issue in this case  whether
injuries outside the realm of such traditional forms of pollution are barred from
coverage by the pollution exclusion.
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traditional environmental pollution, and that the clause is as unambiguous in
excluding the former as the latter.2

2
Considering those jurisdictions that have taken a definitive position, as
represented by a published opinion of the state supreme court, the narrower
interpretation of the pollution exclusion appears to be in the majority. (See
American States Ins. Co. v. Koloms (Ill. 1997) 687 N.E.2d 72, 82 (Koloms)
[Illinois Supreme Court holds carbon monoxide leak from apartment furnace not
excluded]; American States Ins. Co. v. Kiger (Ind. 1996) 662 N.E.2d 945, 949
[gasoline leak from commercial gas station not excluded]; Associated Wholesale
Grocers, Inc. v. Americold Corp. (Kan. 1997) 934 P.2d 65, 78-79 [property losses
sustained from toxic smoke emitted from a fire not excluded]; Doerr v. Mobile Oil
Corp. (La. 2000) 774 So.2d 119, 126-128 [accidental discharge of hydrocarbons
from oil refinery not excluded]; Sullins v. Allstate Ins. Co. (Md. 1995) 667 A.2d
617, 624 [injuries sustained from the ingestion of lead paint chips not excluded];
Western Alliance Ins. Co. v. Gill (Mass. 1997) 686 N.E.2d 997, 999-1000 (Gill)
[injuries sustained from exposure to carbon monoxide emitted from an oven not
excluded]; Westview Associates v. Guaranty National Ins. Co. (N.Y. 2000) 740
N.E.2d 220, 223 [injuries sustained by a tenant from lead poisoning not excluded];
Andersen v. Highland House Co. (Ohio 2001) 757 N.E.2d 329, 334 [injuries
sustained from the inhalation of carbon monoxide emitted from a malfunctioning
heater not excluded]; Lititz Mutual Ins. Co. v. Steely (Pa. 2001) 785 A.2d 975, 982
(Steely) [injuries sustained from the ingestion of lead paint chips not excluded];
Gainsco Ins. Co. v. Amoco Production Co. (Wyo. 2002) 53 P.3d 1051, 1066
[death caused by hydrogen sulfide fumes accidentally emitted from a truck not
excluded]; but see Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co.
(Fla. 1998) 711 So.2d 1135, 1137, 1141 (Deni Assocs.) [injuries sustained from
insecticide accidentally sprayed on bystanders are excluded]; Sokoloski v.
American West Ins. Co. (Mont. 1999) 980 P.2d 1043, 1046 [property losses
sustained due to contamination from soot and smoke emitted from candles are
excluded]; Bituminous Casualty Corp. v. Cowen Construction, Inc. (Okla. 2002)
55 P.3d 1030, 1035 [injuries sustained from exposure to lead negligently released
into a kidney dialysis center are excluded]; Madison Construction Co. v.
Harleysville Mutual Ins. Co. (Pa. 1999) 735 A.2d 100, 108-110 [employee’s
injuries sustained from a fall caused by the inhalation of fumes from concrete
curing compound are excluded]; National Union Fire Insurance Co. of Pittsburgh,
Pa. v. CBI Industries, Inc. (Tex. 1995) 907 S.W.2d 517, 522 [property losses and
injuries sustained from the accidental release of hydrofluoric acid from an oil
refinery are excluded].)
(footnote continued on next page)
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A.
Historical
Background of Pollution Exclusion

In order to understand the meaning of the pollution exclusion, some
historical background is useful. The Illinois Supreme Court’s comprehensive
review of this history in Koloms, supra, 687 N.E.2d 72, merits extensive
quotation: “The events leading up to the insurance industry’s adoption of the
pollution exclusion are ‘well-documented and relatively uncontroverted.’
[Citation.] Prior to 1966, the standard-form CGL policy provided coverage for
bodily injury or property damage caused by an ‘accident.’ [Citations.] The term
‘accident,’ however, was not defined in the policy. As a result, courts throughout
the country were called upon to define the term, which they often interpreted in a
way as to encompass pollution-related injuries. In response, the insurance
industry revised the CGL policy in 1966 and changed the former ‘accident’-based
policy to an ‘occurrence’-based policy. The new policy specifically defined an
‘occurrence’ as ‘an accident, including injurious exposure to conditions, which
results, during the policy period, in bodily injury and property damage that was
neither expected nor intended from the standpoint of the insured.’ [Citation.]
Despite these changes, courts continued to construe the policy to cover damages
resulting from long-term, gradual exposure to environmental pollution. . . . .
(footnote continued from previous page)
It must also be recognized that the above categorization is an
oversimplification, because the same court may fall into different camps
depending on the situations presented. (See Peace ex rel. Lerner v. Northwestern
Nat’l Ins. Co. (Wis. 1999) 596 N.W.2d 429, 448 (Peace) [tenants ingestion of lead
paint chips excluded]; Donaldson v. Urban Land Interest, Inc. (Wis. 1997) 564
N.W.2d 728, 733 (Donaldson) [carbon dioxide leak in apartment building not
excluded].)
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“Meanwhile, at about the same time, the United States Congress
substantially amended the Clean Air Act in an effort to protect and enhance the
quality of the nation’s air resources. Pub.L. No. 91-604, 84 Stat. 1676 (1970) (now
codified at 42 U.S.C. §§ 7401 through 7642 (1983), as amended). The passage of
these amendments, which included provisions for cleaning up the environment,
imposed greater economic burdens on insurance underwriters, particularly those
drafting standard-form CGL policies. [Citation.] The insurer’s burdens further
increased with the . . . . environmental disasters of Times Beach, Love Canal and
Torrey Canyon. [Citations.]
“In the wake of these events, the insurance industry became increasingly
concerned that the 1966 occurrence-based policies were ‘tailor-made’ to cover
most pollution-related injuries. To that end, changes were suggested, and the
industry proceeded to draft what was to eventually become the pollution
exclusion. . . .
‘The result of these efforts was the addition of an endorsement to the
standard-form CGL policy in 1970 [adopted as exclusion (f)]. The endorsement
provided in pertinent part:
‘This policy shall 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 gases, waste materials or other irritants,
contaminants or pollutants into or upon land, the atmosphere or any watercourse
or body of water; but this exclusion does not apply if such discharge, dispersal,
release or escape is sudden and accidental.’
“During the next 13 years, various courts labored over the exact meaning of
the words ‘sudden and accidental.’ Much of the litigation focused on whether the
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word ‘sudden’ was intended to be given a strictly temporal meaning such that, in
order for the exception to apply, the discharge of pollution had to have been
‘abrupt.’ [Citation.] This controversy generated an enormous amount of
litigation, leading one commentator to describe the dispute as one of ‘the most
hotly litigated insurance coverage questions of the late 1980’s.’ [Citations.] Not
surprisingly, insurance companies responded by drafting a new version of the
exclusion, which, first appearing in 1985, is now commonly known as the
“absolute pollution exclusion.”[3] . . . . The two most notable features of this latest
version are (i) the lack of any exception for the ‘sudden and accidental’ release of
pollution, and (ii) the elimination of the requirement that the pollution be
discharged ‘into or upon land, the atmosphere or any watercourse or body of
water.’ [Citation.]” (Koloms, supra, 687 N.E.2d at pp. 79-81, fn. omitted, italics
added; see also Jackson TP, etc. v. Hartford Acc. & Indem. (N.J. Super. 1982) 451
A.2d 990, 993-994 [noting the holding of a considerable number of courts that
pollution would be regarded as “sudden and accidental” if “the result or injury
was unexpected or unintended”].)
Even commentators who represent the insurance industry recognize that the
broadening of the pollution exclusion was intended primarily to exclude traditional
environmental pollution rather than all injuries from toxic substances. As two
attorneys representing the insurance industry have concluded: “Insurers introduced

3
The pre-1985 clause is commonly referred to as the “qualified pollution
exclusion” and post-1985 clause as the “absolute pollution exclusion.” The
exclusions are never designated as such in the insurance policies themselves, and
to refer to the current clause as an “absolute pollution exclusion” is to suggest an
answer to the very question we address. Accordingly, we will refer to the “current
pollution exclusion” or simply the “pollution exclusion.”
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the Absolute Exclusion in 1985 as a replacement for the Qualified Exclusion,
principally in response to court decisions interpreting the Qualified Exclusion in
favor of coverage. In particular, courts have noted that the revised pollution
exclusion deleted the ‘sudden and accidental’ exception because some decisions
had misapplied this exception or, at least, construed it in a manner contrary to
insurers’ original intent. By the mid-1980s a significant body of law had
developed construing the ‘sudden and accidental’ exception to embrace gradual
pollution. [¶] The courts’ broad reading of the Qualified Exclusion’s ‘sudden and
accidental’ exception was at the forefront of insurers’ concern at the time the
Absolute Exclusion was drafted.” (Shelley & Mason, Application of the Absolute
Pollution Exclusion to Toxic Tort Claims: Will Courts Choose Policy Construction
or Deconstruction? (1998) 33 Tort & Ins. L.J. 749, 753-754, fns. omitted (Shelley
& Mason).)
Commentators have pointed as well to the passage of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C.
§ 9601 et seq.) in 1980 and the attendant expansion of liability for remediating
hazardous wastes (see AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 815-
816 (AIU Ins. Co.) as motivation for amending the exclusion. “[T]he available
evidence most strongly suggests that the absolute pollution exclusion was
designed to serve the twin purposes of eliminating coverage for gradual
environmental degradation and government-mandated cleanup such as Superfund
response cost reimbursement.” (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, 32 (Stempel).)
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B.
Arguments For and Against a Narrow Interpretation of the
Pollution
Exclusion
Clause.
One of the primary arguments for a narrow interpretation of the pollution
exclusion is based on the history reviewed above. As Kolums stated: “Our review
of the history of the pollution exclusion amply demonstrates that the predominate
[sic] motivation in drafting an exclusion for pollution-related injuries was the
avoidance of the ‘enormous expense and exposure resulting from the “explosion”
of litigation.’ [Citations.] Similarly, the 1986 amendment to the exclusion was
wrought, not to broaden the provision’s scope beyond its original purpose of
excluding coverage for environmental pollution, but rather to remove the ‘sudden
and accidental’ exception to coverage which, as noted above, resulted in a costly
onslaught of litigation. We would be remiss, therefore, if we were to simply look
to the bare words of the exclusion, ignore its raison d’être, and apply it to
situations which do not remotely resemble traditional environmental
contamination. The pollution exclusion has been, and should continue to be, the
appropriate means of avoiding ‘ “the yawning extent of potential liability arising
from the gradual or repeated discharge of hazardous substances into the
environment.” ’ (Emphasis in original.) [Citations.] We think it improper to
extend the exclusion beyond that arena.” (Koloms, supra, 687 N.E.2d at p. 81;
accord, Doerr v. Mobile Oil Corp., supra, 774 So.2d at pp. 126-128; Sullins v.
Allstate Insurance Co., supra, 667 A.2d 617, 622-623; Andersen v. Highland
House Co., supra, 757 N.E.2d at p. 334; Gainsco Ins. Co. v. Amoco Production
Co., supra, 53 P.3d at p. 1066; see also Stempel, supra, 34 Tort & Ins. L.J. at
pp. 35-40.)
Courts adopting a narrower interpretation of the exclusion have also
maintained that an interpretation of “pollutant” as applying literally to “any
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contaminant or irritant” would have absurd or otherwise unacceptable results.
“[T]here is virtually no substance or chemical in existence that would not irritate
or damage some person or property.” (Westchester Fire Ins. Co. v. City of
Pittsburg, Kans. (D.Kan. 1991) 768 F.Supp. 1463, 1470 (City of Pittsburg, Kans.),
affd. sub nom. Pennsylvania Nat. Mut.Cas. Ins. Co. v. City of Pittsburg, Kan.
(10th Cir. 1993) 987 F.2d 1516; see also Nautilus Ins. Co. v. Jabar (1st Cir. 1999)
188 F.3d 27, 30-31 [interpreting Maine law]; Pipefitters Welfare Education Fund
v. Westchester Fire Insurance Co. (7th Cir. 1993) 976 F.2d 1037, 1043
(Pipefitters); Motorists Mut. Ins. Co. v. RSJ, Inc. (Ky.Ct.App. 1996) 926 S.W.2d
679, 682 (RSJ, Inc.).)
Another argument for this camp focuses on the common meaning of the
term “discharge, dispersal, release or escape,” as implying expulsion of the
pollutant over a considerable area rather than a localized toxic accident occurring
in the vicinity of intended use. (Lumbermens Mutual Casualty v. S-W Industries,
Inc. (6th Cir. 1994) 39 F.3d 1324, 1336 (Lumbermens); accord, Meridian Mutual
Ins. Co. v. Kellman (6th Cir. 1999) 197 F.3d 1178, 1185 (Kellman); Center for
Creative Studies v. Aetna Life & Casualty Co. (E.D. Mich. 1994) 871 F.Supp. 941
946 (Center for Creative Studies); Steely, supra, 785 A.2d at p. 982.) Other courts
have viewed these words as terms of art describing environmental pollution.
(Western American Ins. Co. v. Tufco Flooring (N.C.Ct.App. 1991) 409 S.E.2d
692, 699-700 (Tufco Flooring), disapproved on other grounds in Gaston County
Dyeing Mach. Co. v. Northfield Ins. Co. (N.C. 2000) 524 S.E.2d 558; accord,
Sphere Drake Ins. Co. v. Y.L. Realty Co. (S.D.N.Y. 1997) 990 F.Supp. 240, 244;
RSJ, Inc., supra, 926 S.W.2d at p. 681; Gill, supra, 686 N.E.2d at p. 999;
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Continental Casualty Co. v. Rapid-American Corp. (N.Y. 1993) 80 N.Y.2d 640,
654 [asbestos-related injury not excluded].)
On the other hand, many courts have taken a position that the current
pollution exclusion is not ambiguous in encompassing acts of negligence
involving toxic substances  acts that are outside the scope of traditional
environmental pollution. These courts tend to find the meaning of the key words,
as defined in a dictionary, to unequivocally cover forms of contamination other
than traditional environmental pollution. This approach is exemplified by the
Wisconsin Supreme Court in Peace, supra, 596 N.W.2d 429, in which the court
determined, after extensive analysis of the dictionary definitions of the various
terms, that a tenant’s action against the landlord for lead paint ingestion was
excluded. As the court stated: “The words ‘discharge,’ ‘dispersal,’ ‘release,’ and
‘escape’ are not defined in the policy, but they appear to describe the entire range
of actions by which something moves from a contained condition to an
uncontained condition.” (Id. at p. 438.) The court therefore concluded that
ingestion of chipped lead paint was covered: “We believe the plain language of the
policy covers the release of paint containing lead from a wall or ceiling into the air
or onto the floor. ‘Common sense tells us that lead paint that never leaves a wall
or ceiling does not cause harm.’ ” (Id. at pp. 438-439, fn. omitted.)
The
Peace court also rejected the argument that the terms “discharge,
dispersal, release or escape” are environmental law terms of art because they
appear in environmental statutes: “A quick check of the Wisconsin Statutes shows
that these terms are used in many situations completely unrelated to the
environment, including criminal law. Citing a multitude of criminal justice
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statutes that use these common terms would not transform the terms into criminal
justice terms of art.” (Peace, supra, 596 N.W.2d at p. 446.)
The court also disagreed that the term “pollutant” is ambiguous. “The key
term in the clause  ‘pollutants’  is specifically defined in the policy; the
definition cannot be undone by different notions of ‘pollution’ outside the policy,
unrelated to the policy language, unless such a ‘reading’ produced absurd results.
In the text here, the words are not fairly susceptible to more than one construction.
The pollution exclusion clause does not become ambiguous merely because the
parties disagree about its meaning [citation], or because they can point to
conflicting interpretations of the clause by different courts.” (Peace, supra, 596
N.W.2d at p. 442; accord, Deni Assocs., supra, 711 So.2d at p. 1139.)
As for the intended purpose of the pollution exclusion, courts finding a lack
of ambiguity in the language of the policy dismiss such history as irrelevant.
“[U]nless we conclude that the policy language is ambiguous, it would be
inappropriate for us to consider the arguments pertaining to the drafting history of
the pollution exclusion clause. [Citation.]” (Deni Assocs., supra, 711 So.2d at
p. 1139.)
B.
Principles for Construing Insurance Policies under California Law
We begin our own analysis with a review of the principles that govern the
construction of insurance policy language in this state. Interpretation of an
insurance policy is a question of law and follows the general rules of contract
interpretation. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18
(Waller).) “The fundamental rules of contract interpretation are based on the
premise that the interpretation of a contract must give effect to the ‘mutual
intention’ of the parties. ‘Under statutory rules of contract interpretation, the
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mutual intention of the parties at the time the contract is formed governs
interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible,
solely from the written provisions of the contract. (Id., § 1639.) The “clear and
explicit” meaning of these provisions, interpreted in their “ordinary and popular
sense,” unless “used by the parties in a technical sense or a special meaning is
given to them by usage” (id., § 1644), controls judicial interpretation. (Id.,
§ 1638.)’ [Citations.] A policy provision will be considered ambiguous when it is
capable of two or more constructions, both of which are reasonable. [Citation.]
But language in a contract must be interpreted as a whole, and in the
circumstances of the case, and cannot be found to be ambiguous in the abstract.”
(Id. at p. 18.)
Moreover, insurance coverage is “ ‘ “interpreted broadly so as to afford the
greatest possible protection to the insured, [whereas] . . . exclusionary clauses are
interpreted narrowly against the insurer.” ’ ” (White v. Western Title Ins. Co.
(1985) 40 Cal.3d 870, 881.) “[A]n insurer cannot escape its basic duty to insure
by means of an exclusionary clause that is unclear. As we have declared time and
again ‘any exception to the performance of the basic underlying obligation must
be so stated as clearly to apprise the insured of its effect.’ [Citation.] Thus, ‘the
burden rests upon the insurer to phrase exceptions and exclusions in clear and
unmistakable language.’ [Citation.] The exclusionary clause ‘must be
conspicuous, plain and clear.’ ” (State Farm Mut. Auto Ins. Co. v. Jacober (1973)
10 Cal.3d 193, 201-202, italics in original.) This rule applies with particular force
when the coverage portion of the insurance policy would lead an insured to
reasonably expect coverage for the claim purportedly excluded. (Gray v. Zurich
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Insurance Co., supra, 65 Cal.2d at pp. 272-273.)4 The burden is on the insured to
establish that the claim is within the basic scope of coverage and on the insurer to
establish that the claim is specifically excluded. (Aydin Corp. v. First State Ins.
Co. (1998) 18 Cal.4th 1183, 1188.)
C.
The Meaning of the Pollution Exclusion
In order to ascertain the scope of an exclusion we must first consider the
coverage language of the policy to understand the reasonable expectations of the
insured apart from the exclusion. (See Gray v. Zurich Insurance Co., supra, 65
Cal.2d at p. 273; Ponder v. Blue Cross of Southern California, supra, 145
Cal.App.3d at pp. 720-721.) MacKinnon’s CGL policy obligated the insurer to
pay “all sums for which [the insured] become[s] legally obligated to pay as
damages caused by bodily injury, property damage or personal injury.” We said

4
As one court has observed: “It is not altogether clear that the conspicuous
and plain and clear requirements [for clauses limiting coverage] apply unless the
exclusion ‘disappoints the reasonable expectations’ of the insured. Some cases
couple the two statements in such a way as to suggest that only disappointed
expectations will activate the conspicuous, plain and clear requirements.
[Citations.] On the other hand, other decisions appear to require exclusions to
comply with these requirements without any finding that implementation of the
exclusion would ‘disappoint the reasonable expectations’ of the insured.
[Citations.] We can imagine exclusions which are so consistent with the scope of
coverage an ordinary policyholder expects that it would be unnecessary if not
redundant to impose special requirements these clauses be conspicuous and plain
and clear. Nonetheless many, and perhaps most, exclusionary clauses by their
very nature deny coverage that consumers otherwise would personally anticipate
to be provided under the policy.” (Ponder v. Blue Cross of Southern California
(1983) 145 Cal.App.3d 709, 720-721, italics in original, fn. omitted.) We have no
occasion to decided whether certain exclusionary clauses are so consistent with
policy coverage language that it would be “unnecessary if not redundant” to
impose a requirement that the clauses be conspicuous, plain and clear. As
explained below, such is not the case with the pollution exclusion at issue here.
16

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of similar language that it “connotes general protection for alleged bodily injury
caused by the insured.” (Gray v. Zurich Ins. Co., supra, 65 Cal.3d at p. 272.) This
language establishes a reasonable expectation that the insured will have coverage
for ordinary acts of negligence resulting in bodily injury. (Id. at p. 273.)
Coverage will therefore be found unless the pollution exclusion conspicuously,
plainly and clearly apprises the insured that certain acts of ordinary negligence,
such as the spraying of pesticides in this case, will not be covered. (Id. at pp. 271,
273.)
Truck Insurance contends that the pollution exclusion, read literally, would
plainly and clearly extend to virtually all acts of negligence involving substances
that can be characterized as irritants or contaminants, that is, are capable of
irritating or contaminating so as to cause personal injury. Specifically, they argue
that pesticides are “chemicals” capable of causing irritation and can therefore be
defined as an “irritant” and a “pollutant.” The spraying of pesticides can be
described as a “discharge” or “dispersal.”
But Truck Insurance’s reading of the clause is predicated on a basic fallacy,
one shared by many of the courts on which it relies: the conclusion that the
meaning of policy language is to be discovered by citing one of the dictionary
meanings of the key words, such “irritant” or “discharge.” (See American States
Ins. Co. v. Nethery (5th Cir. 1996) 79 F.3d 473, 476; Peace, supra, 596 N.W.2d at
p. 438; Deni Assoc., supra, 711 So.2d at p. 1139.) Although examination of
various dictionary definitions of a word will no doubt be useful, such examination
does not necessarily yield the “ordinary and popular” sense of the word if it
disregards the policy’s context. (Bank of the West v. Superior Court (1992) 2
Cal.4th 1254, 1265.) Rather, a court properly refusing to make “ ‘a fortress out of
17

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the dictionary,’ ” (Russian Hill Improvement Assn. v. Board of Permit Appeals
(1967) 66 Cal.2d 34, 42, quoting Justice Learned Hand’s dictum in Cabell v.
Markham (2d Cir. 1945) 148 F.2d 737, 739), must attempt to put itself in the
position of a layperson and understand how he or she might reasonably interpret
the exclusionary language. (AIU Ins. Co., supra, 51 Cal.3d at p. 822.)
The unreasonableness of Truck Insurance’s interpretation becomes clear
when its full implications are considered. Virtually any substance can act under
the proper circumstances as an “irritant or contaminant.” (See City of Pittsburg,
Kans., supra, 768 F.Supp. at p. 1470.) The court in Pipefitters, supra, 976 F.2d at
page 1043 stated: “Without some limiting principle, the pollution exclusion clause
would extend far beyond its intended scope, and lead to some absurd results.” The
hypothetical allergic reaction to pool chlorine, proposed by the Pipefitters court,
illustrates this absurdity. Chlorine certainly contains irritating properties that
would cause the injury. Its dissemination throughout a pool may be literally
described as a dispersal or discharge. Our research reveals no court or
commentator that has concluded such an incident would be excluded under the
pollution exclusion. The response of two leading insurance industry attorneys has
simply been to state that “there are no decisions reporting denials arising from . . .
swimming pool chlorine under the [pollution] [e]xclusion.” (Shelley & Mason,
supra, 33 Tort & Ins. L. J. at p. 772.) Truck Insurance’s counsel took a similar
position at oral argument.
Other
such
hypotheticals
can be imagined. The application of iodine onto a
cut through an eyedropper may be literally characterized as a discharge or release
of an irritant. Truck Insurance’s interpretation would therefore bar coverage for
injury caused by the misapplication of iodine, or its application on someone who
18

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was hypersensitive or has an allergic reaction. A child’s accidental ingestion of a
pesticide or other toxic substance negligently left in an empty soft drink bottle
would be barred. Yet few if any would think of these injuries as arising from
“pollution” in any recognizable sense of that term.
Courts interpreting the pollution exclusion broadly have acknowledged that
their interpretation may yield results that no one would consider reasonable. For
example, the Florida Supreme Court, adopting a broad interpretation similar to
Truck Insurance’s, responded to various unspecified hypotheticals by affirming
that “insurance policies will not be construed to reach an absurd result.” (Deni
Assocs., supra, 711 So.2d at p. 1140; see also Peace, supra, 596 N.W.2d at p.
442.) Yet an interpretation of an exclusionary clause so broadly that it logically
leads to absurd results, in conjunction with an affirmation in the abstract that it
will not be interpreted to yield such results, is a recipe for judicial confusion. (See
Stempel, supra, 34 Tort & Ins. L.J. at p. 22.)
Our conclusion that Truck Insurance’s interpretation is overly broad is
bolstered by a closer examination of the connotations of the terms “discharge,
dispersal, release or escape” in the context of the present case. “A ‘release’ is
defined as ‘the act of liberating or freeing: discharge from restraint.’ ” (Webster’s
3d New Internat. Dict. (2002) p. 1917.) An “escape” is defined as an “evasion of
or deliverance from what confines, limits, or holds.” (Id. at p. 774.) These terms
connote some sort of freedom from containment, and it would be unusual to speak
of the normal, intentional application of pesticides as a “release” or “escape” of
pesticides.
To “disperse” is defined, variously, as “to cause to become spread widely,”
“ to dissipate, dispel,” “to spread or distribute from a fixed or constant source,” or
19

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“to cause to break up and go in different ways.” (Webster’s 3d New Internat.
Dict., supra, at p. 653, italics added.) The notion of “dispersal” as a substantial
dissemination is reinforced by its use with the term “pollutant.” Indeed, the word
“dispersal,” when in conjunction with “pollutant,” is commonly used to describe
the spreading of pollution widely enough to cause its dissipation and dilution.
(See, e.g., Milloy, Northeast Blowing Smoke on Cause of Its Pollution, Chicago
Sun-Times (Dec. 16, 2002) p. 53 [“beyond 100 to 200 miles, air pollutants are
dispersed]; Sanchez, In Calif., A Crackling Controversy over Smog, Washington
Post (Feb. 16, 2003) p. A1 [“ the valley . . . is bordered on three sides by
mountain ranges and cannot naturally disperse . . . the pollution it creates”].)
Knowledge of common usage does not lead us to believe that the term “disperse
pesticides” is generally used as a substitute for “spray” or “apply” pesticides,
except perhaps when the pesticides are being spread throughout a large area. (See,
e.g., Ritter, Pesticide Trucks Go After Mosquitoes, Chicago Sun-Times (Sept. 9,
2002) p. 4 [referring to “one teaspoon of the pesticide sumiturin is dispersed over
an area the size of a football field”; Simmons, Tanzania Begins to Deal with Toxic
Wasteland, L.A. times (Mar. 30, 2000) [referring to “some cataclysmic
meteorological event tht would wash or disperse large quantities of . . . persistent
pesticide[s] into the environment”].) In the present case, the application of
pesticides in and around an apartment building does not plainly signify to the
common understanding the “dispersal” of a pollutant. (See Kellman, supra, 197
F.3d at p. 1185 [strains the meaning of “discharge, dispersal, seepage, dispersal,
release or escape” to apply it to localized toxic injury occurring in the vicinity of
intended use]; see also Lumbermens, supra, 39 F.3d at p. 1336; Center for
20

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Creative Studies,, supra, 871 F.Supp. at pp. 946-947; Steely, supra, 785 A.2d at p.
982.)
‘Discharge” is defined most pertinently as “to send forth” or “to give outlet
to: pour forth.” (Webster’s 3d New Internat. Dict., supra, at p. 644.) Although
the application of pesticides could literally be described as a “discharge” of
pesticides, that term is rarely used in this manner. In fact, a LexisNexis Allnews5
search of “pesticide” in the same sentence with “discharge” reveals that the two
words are used together almost invariably to describe the runoff of pesticides into
water or soil, often with other effluents. (See, e.g., McChesney, Future of
Farming in California’s Central Valley, All Things Considered (Nov. 12, 2002)
[radio broadcast referring to “pesticide discharges to surface waters and other
agricultural pollutants”]; Rogers, Deal Set to Upgrade Mexican Sewage Treatment
Is Set, San Diego Union-Tribune (July 17, 2002) p. B-1 [referring to industrial
plant that “discharges . . . effluent contain[ing] . . . pesticides . . . into the ocean”];
Kay, Growers Sued over Pollution; Suit Says Pesticides Contaminated Water, S.F.
Chronicle (Feb. 22, 2002) p. A21 [referring to “discharg[ing] pesticide-laden
irrigation runoff”]; Gold, A Looming Ecological Mistake, L.A. Times (Sept. 9,
2001) [referring to “discharge [of] harmful pesticides” into nearby creek].) In
other words, the term “discharge” is commonly used with pesticides to describe
pesticide runoff behaving as a traditional environmental pollutant rather than
pesticides being normally applied.6

5
This database consists of more than 8,600 English language news sources,
including newspapers, magazines, and wire services. (LexisNexis 2002 Directory
of Online Services (2002) p. 278.)
6
In fact, the Allnews search of “pesticide within the same sentence as
discharge” for the last 10 years produced almost no evidence that the word
(footnote continued on next page)
21

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In short, because Truck Insurance’s broad interpretation of the pollution
exclusion leads to absurd results and ignores the familiar connotations of the
words used in the exclusion, we do not believe it is the interpretation that the
ordinary layperson would adopt. What then is the plain meaning of the pollution
exclusion? The key to this inquiry, we believe, turns on the meaning of the term
“pollutant.” Because the definitional phrase “any irritant or contaminant” is too
broad to meaningfully define “pollutant,” we must turn to the common connotative
meaning of that term. This position was well articulated by the court in Regional
Bank of Colorado v. St. Paul Fire and Marine Ins. Co. (10th Cir. 1994) 35 F.3d
494, interpreting Colorado law, when considering whether carbon monoxide
fumes from a residential heater should be considered pollution: “A reasonable
policy holder would not understand the policy to exclude coverage for anything
that irritates. ‘Irritant’ is not to be read literally and in isolation, but must be
construed in the context of how it is used in the policy, i.e., defining ‘pollutant.’
[¶] While a reasonable person of ordinary intelligence might well understand
carbon monoxide is a pollutant when it is emitted in an industrial or environmental
setting, an ordinary policyholder would not reasonably characterize carbon
monoxide emitted from a residential heater which malfunctioned as ‘pollution.’ It
(footnote continued from previous page)
“discharge” is used to describe the normal application of pesticides. Of 246 search
results in which some form of “discharge” was used as a verb with “pesticide,”
only in two instances was “discharge” used to describe normal pesticide
application, and then only in the context of a discussion of insurance or legal
matters. (See Shaheen, Be Practical When Purchasing Policies, 68 Pest Control
No. 11 (Nov. 1, 2000) p. 48; Federal Court Refuses to Halt West Nile Virus
Pesticide Program 12 Real Estate/Environmental Liability News, No. 3 (Oct. 27,
2000).
22

---

seems far more reasonable that a policyholder would understand it as being limited
to irritants and contaminants commonly thought of as pollution and not as applying
to every possible irritant or contaminant imaginable.” (Id. at p. 498, 2d italics
added; accord, Stoney Run Co. v. Prudential-LMI Commercial Ins. Co. (2d Cir.
1995) 47 F.3d 34, 38; Gill, supra, 686 N.E.2d at p. 999.)
Limiting the scope of the pollution exclusion to injuries arising from events
commonly thought of as pollution, i.e. environmental pollution, also appears to be
consistent with the choice of terms “discharge, dispersal, release or escape.” As
one court has observed: “The drafters’ utilization of environmental law terms of
art (‘discharge,’ ‘dispersal,’ . . . ‘release,’ or ‘escape’ of pollutants) reflects the
exclusion’s historical objectiveavoidance of liability for environmental
catastrophes related to intentional industrial pollution.” (RSJ, Inc., supra, 926
S.W.2d at p. 681; see also Nautilus Ins. Co. v. Jabar, supra, 188 F.3d at p. 30;
Center for Creative Studies, supra, 871 F.Supp. at pp. 944-945; Koloms, supra,
687 N.E.2d at pp. 81-82.) It may be an overstatement to declare that “discharge,
dispersal, release or escape,” by themselves, are environmental law terms of art.
But, as discussed above, these terms, used in conjunction with “pollutant,”
commonly refer to the sort conventional environmental pollution at which the
pollution exclusion was primarily targeted.
Moreover, as discussed above, there appears to be little dispute that the
pollution exclusion was adopted to address the enormous potential liability
resulting from anti-pollution laws enacted between 1966 and 1980. (Koloms,
supra, 687 N.E.2d at pp. 79-81; see also Shelly & Mason, supra, 33 Tort & Ins.
L.J. at pp. 753-755; Stempel, supra, 34 Tort & Ins. L.J. at pp 33-40. ) On the
other hand, neither Truck Insurance nor the considerable number of amicus curiae
23

---

from the insurance industry writing on its behalf point to any evidence that the
exclusion was directed at ordinary acts of negligence involving harmful
substances. (See Stempel, supra, 34 Tort & Ins. L.J. at pp. 34-36 [pointing to the
lack of evidence supporting the insurer’s position despite their greater access to
policy drafters’ documents].) Nor do they bring to light evidence that the
substantial limitation on CGL coverage that an exclusion so interpreted would
impose was communicated to the purchasers of insurance or insurance regulators,
nor that the significant reduction in coverage was accompanied by a reduction in
premiums. (See Fidelity & Dep. Co. of Maryland v. Charter Oak Fire Ins. Co.
(1998) 66 Cal.App.4th 1080, 1086 [amount of premium paid may be relevant to
extent of coverage]; MacDonald, Decades of Deceit: The Insurance Industry
Incursion into the Regulatory and Judicial Systems, 7 Coverage (Nov./Dec. 1997)
No. 6, 3, 8 [pointing out that the adoption of the current pollution exclusion was
not accompanied by premium reductions].) The history and purpose of the clause,
while not determinative, may properly be used by courts as an aid to discern the
meaning of disputed policy language. (See Montrose Chemical Corp. v. Admiral
Ins. Co. (1995) 10 Cal.4th 645, 670-671.)
Finally, an interpretation limiting the exclusion to environmental pollution
appears reasonable in light of the purpose of CGL policies—which “is ‘to provide
the insured with the broadest spectrum of protection against liability for
unintentional and unexpected personal injury or property damage arising out of the
conduct of the insured’s business.’ ” (City of Pittsburg, Kans., supra, 768 F.Supp.
at p. 1468, fn. 5, quoting Peters, Insurance Coverage for Superfund Liability: A
Plain Meaning Approach to the Pollution Exclusion Clause (1987) 27 Washburn
L.J. 161, 166.) On the other hand, Truck Insurance’s interpretation would
24

---

fundamentally undermine that purpose by cutting a broad and arbitrary swath
through CGL protections, excluding virtually all injuries involving substances that
cause harm. Neither the language nor the historical purpose of the pollution
exclusion supports such a drastic contraction of CGL policy coverage.
To be sure, terms such as “commonly thought of as pollution,” or
“environmental pollution,” are not paragons of precision, and further clarification
may be required. But reference to these terms is sufficient to resolve the present
case. We conclude that it is far from clear MacKinnon’s claim, based on the
Denzin action, for injuries arising from the normal, though negligent, residential
application of pesticides, would be commonly thought of as pollution. While
pesticides may be pollutants under some circumstances, it is unlikely a reasonable
policyholder would think of the act of spraying pesticides under these
circumstances as an act of pollution. We agree with the observation of the court in
Tufco Flooring, supra, 409 S.E.2d at page 698, that the “common understanding
of the word ‘pollute’ indicates that it is something creating impurity, something
objectionable and unwanted.” The normal application of pesticides around an
apartment building in order to kill yellow jackets would not comport with the
common understanding of the word “pollute.”
Amicus curiae London Market Insurers proposes an interpretation of the
pollution exclusion that is somewhat less broad than that advocated by Truck
Insurance but would encompass the claim in this case. This interpretation is
essentially the one adopted by the Wisconsin Supreme Court in Peace. The Peace
court sought to distinguish its holding that injury from the ingestion of lead paint
chips is excluded, from its previous holding in Donaldson, supra, 564 N.W.2d
728, that injury from “sick building syndrome” caused by excessive accumulation
25

---

of carbon dioxide, was not: “The [Donaldson] court contrasted exhaled carbon
dioxide with the nonexhaustive list of pollutants in the pollution exclusion clause
and observed that exhaled carbon dioxide is universally present and generally
harmless in all but the most unusual circumstances. [Citation.] The same cannot
be said for lead paint chips, flakes, and dust. They are widely, if not universally,
understood to be dangerous and capable of producing lead poisoning. The toxic
effects of lead have been recognized for centuries. Reasonable owners of rental
property understand their obligation to deal with the problem of lead paint.”
(Peace, supra, 596 N.W.2d at p. 443, italics added, fns. omitted.)
We doubt a layperson reading the exclusion would interpret it to apply to
all injuries arising from substances “widely . . . understood to be dangerous.”
This interpretation has no basis in the language of the clause. On the other hand,
the interpretation limiting the exclusion to what is “commonly thought of as
pollution” is firmly rooted in the policy’s language, based as it is on the
recognition that the words “pollutant” and “pollution” have definite connotations.
The latter interpretation is also in accord with the historical purpose of the
pollution exclusion and the purpose of the CGL policy, discussed above.7

7
Against the position that the exclusion applies only to environmental
pollution, amicus curiae Complex Insurance Claims Litigation Association points
to the elimination of the limitation that the pollution be discharged, etc. “into or
upon land, the atmosphere or any watercourse or body of water” from the current
pollution exclusion, and its replacement with “at or from the insured location” or a
similar phrase. Of course, substantial environmental pollution may occur at or on
an insured’s property. (See, e.g., Foster-Gardner, Inc. v. National Union Fire Ins.
Co. (1998) 18 Cal.4th 857, 861.) The purpose of eliminating “into or upon land”
is unclear and by no means unambiguously supports the insurer’s position in the
present case.
26

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But even if London Market Insurers’ interpretation is considered
reasonable, it would still not prevail, for in order to do so it would have to
establish that its interpretation is the only reasonable one. (See Waller, supra, 11
Cal.4th at p. 18.) “[W]e are not required, in deciding the case at bar, to select one
‘correct’ interpretation from the variety of suggested readings. To affirm the trial
courts’ decisions in favor of claimants, we need not determine that the two
interpretations proposed by the insurer are not possible, or even reasonable,
interpretations of the clause in question . . . . Instead, even assuming that the
insurer’s suggestions are reasonable interpretations which would bar recovery by
the claimants, we must nonetheless affirm the trial courts’ finding of coverage so
long as there is any other reasonable interpretation under which recovery would be
permitted in the instant cases.” (State Farm Mut. Auto Ins. Co. v. Jacober, supra,
10 Cal.3d at pp. 202-203, fn. omitted.)
Thus, assuming arguendo that London Market Insurers’ interpretation is
reasonable, the interpretation of the pollution exclusion as limited to conventional
environmental pollution is at least as reasonable. We therefore cannot say that the
exclusion plainly and clearly excludes the landlord’s allegedly negligent use of
pesticides in the present case, i.e., the exclusion does not plainly and clearly take
away what the CGL coverage provision patently confers. Accordingly, the
exclusion must be interpreted in favor of coverage. (State Farm Mut. Auto Ins.
Co. v. Jacober, supra, 10 Cal.3d at pp. 201-202.)
27

---

III. DISPOSITION
The judgment of the Court of Appeal affirming summary judgment on
Truck Insurance’s behalf is reversed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
28

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion MacKinnon v. Truck Insurance Exchange
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 95 Cal.App.4th 235
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S104543
Date Filed: August 14, 2003
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Peter H. Norell and Barry L. Plotkin

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Arthur W. Francis, Jr., and Arthur W. Francis, Jr., for Plaintiffs and Appellants.

Pahl & Gosselin, Stephen D. Pahl and Servando R. Sandoval for California Apartment Association as
Amicus Curiae on behalf of Plaintiffs and Appellants.

Menter & Witkin, Timothy S. Menter and Gene M. Witkin as Amici Curiae on behalf of Plaintiffs and
Appellants.

Zevnik Horton, Michel Y. Horton, Charles J. Malaret and Stanley H. Shure as Amici Curiae on behalf of
Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Gordon & Rees, Christopher R. Wagner; Ropers, Majeski, Kohn & Bentley, Michael J. Brady; Sedgwick,
Detert, Moran & Arnold, Lawrence E. Picone, Frederick D. Baker and Kirk C. Jenkins for Defendant and
Respondent.

Hancock Rothert & Bunshoft, Paul J. Killion, Kathryn C. Ashton and Megan M. Griesbach for London
Market Insurers as Amicus Curiae on behalf of Defendant and Respondent.

Sinnott, Dito, Moura & Puebla, Randolph P. Sinnott; Wiley Rein & Fielding, Thomas W. Brunner and
Theodore A. Howard for Steadfast Insurance Company as Amicus Curiae on behalf of Defendant and
Respondent.

Wiley Rein & Fielding, Laura A. Foggan, John C. Yang, Elizabeth A. Eastwood; Bien & Summers and
Elliot L. Bien for Complex Insurance Claims Litigation Association as Amicus Curiae on behalf of
Defendant and Respondent.
1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Arthur W. Francis, Jr.
Law Offices of Arthur W. Francis, Jr.
2522 Artesia Boulevard
Redondo Beach, CA 90278
(310) 316-1988

Stephen D. Pahl
Pahl & Gosselin
160 West Santa Clara Street, Fourteenth Floor
San Jose, CA 95113-1700
(408) 286-5100

Michael J. Brady
Ropers, Majeski, Kohn & Bentley
1001 Marshall Street
Redwood City, CA 94063
(650) 364-8200

Paul J. Killion
Hancock Rothert & Bunshoft
Four Embarcadero Center
San Francisco, CA 94111-4168
(415) 981-5550
2

---

Opinion Information

Date:	Docket Number:
Thu, 08/14/2003	S104543

Disposition
Aug 14 2003	Opinion: Reversed

Dockets
Feb 22 2002	Petition for review filed   counsel for appellant John R. Mackinnon
Mar 12 2002	Request for depublication (petition for review pending)   appellant, MacKinnon
Mar 13 2002	Answer to petition for review filed   respondent, Truck Insurance Exchange
Mar 19 2002	Received letter from:   counsel for respondent, Truck Insurance Exchange, responding to depub/request of
Apr 3 2002	Second Record Request
Apr 8 2002	Received Court of Appeal record   1-doghouse
Apr 15 2002	Time extended to grant or deny review   to and including May 23, 2002.
May 1 2002	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Chin and Moreno, JJ.
May 2 2002	Letter sent to:   all parties enclosing order and Certification of Interested Entitles of Persons form.
May 2 2002	Note:
May 17 2002	Certification of interested entities or persons filed   respondent Truck Insurance Exchange ("Truck")
May 30 2002	Opening brief on the merits filed   by counsel for appellant John R. Mackinnon
Jun 28 2002	Answer brief on the merits filed   respondent, Truck Insurance
Jul 17 2002	Reply brief filed (case fully briefed)   by appellants John R. & Christel B. Mackinnon, and John and Christel Mackinon Family Trust.
Jul 30 2002	Received application to file amicus curiae brief; with brief   California Apartment Association in support of appellants [MacKinnon]
Jul 31 2002	Permission to file amicus curiae brief granted   California Apartment Association in support of appellants. An answer by any party may be served and filed within twenty days of the filing of the brief.
Jul 31 2002	Amicus Curiae Brief filed by:   California Apartment Association in support of appellants.
Aug 16 2002	Received application to file amicus curiae brief; with brief   Zevnik Horton LLP supporting appellants [under separate covers]
Aug 16 2002	Received application to file amicus curiae brief; with brief   Steadfast Insurance Company supporting respondent [under same cover]
Aug 16 2002	Received application to file amicus curiae brief; with brief   London Market Insurers in support of respondent
Aug 19 2002	Filed:   withdrawal and substitutiion of counsel stipulation- on behalf of counsel for resp Truck Ins. Exchange. stipulating that Sedgwick, Detert, Moran & Arnold, and H. Scott Sirlin of Gordon & Rees LLP shall withdraw as attorneys of record for Truck Ins. Exchg and Gordon & Rees LLP be substituted in.
Aug 19 2002	Received application to file amicus curiae brief; with brief   of Complex Insurance Claims Litigation Association in support of respondent. (CRC rule 40k)
Aug 19 2002	Received application to file amicus curiae brief; with brief   and Appendix (separate) of Menter & Witkin in support of appellants. (CRC rule 40k)
Aug 20 2002	Response to amicus curiae brief filed   respondent TRUCK INS. EXCHG., answering brief of The California Apartment Association.
Aug 23 2002	Permission to file amicus curiae brief granted   The application of Complex Insurance Cases for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief,
Aug 23 2002	Amicus Curiae Brief filed by:   COMPLEX INSURANCE CASES
Aug 23 2002	Permission to file amicus curiae brief granted   The application and appendix of London Market Insurers for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 23 2002	Amicus Curiae Brief filed by:   LONDON MARKET INSURERS
Aug 23 2002	Permission to file amicus curiae brief granted   The application of Menter & Witkin for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 23 2002	Amicus Curiae Brief filed by:   MENTER & WITKIN
Aug 23 2002	Permission to file amicus curiae brief granted   The application of Steadfast Insurance Company for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 23 2002	Amicus Curiae Brief filed by:   STEADFAST INSURANCE COMPANY
Aug 23 2002	Permission to file amicus curiae brief granted   The applicationof Zevnik Horton L.L.P. for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 23 2002	Amicus Curiae Brief filed by:   ZEVNIK HOTON L.L.P.
Sep 12 2002	Response to amicus curiae brief filed   by resp Truck Ins. to A/C briefs of Menter & Witkin and Zevnik Horton LLP
Apr 30 2003	Case ordered on calendar   6-3-03, 2pm, L.A.
May 7 2003	Association of attorneys filed for:   Law Firm of Ropers, Majeski, Kohn & Bentley and Michael J. Brady, Esq. for resp Truck Ins Excg.
May 13 2003	Filed:   request of resp to divide oral argument time with A/C
May 14 2003	Order filed   The request of counsel for resp to allow two counsel to agrue on behalf of resp. is granted.
May 14 2003	Order filed   The request of resp to allocate to A/C London Market Insurers 10 min of resp's 30-min oral argument time is granted.
May 14 2003	Filed:   Request of aplt to allocate oral argument time to A/C Calif. Apt. Assn.
May 19 2003	Order filed   the request of counsel for aplts to allow two counsel to argue on behalf of aplts at oral argument is hereby granted.
May 19 2003	Order filed   The request of aplts to allocate to A/C California Apartment Association 10 min of aplts' 30-min allotted time for oral argument is granted.
May 23 2003	Received:   Appellant's Additional Authorities
May 30 2003	Received letter from:   attorney Christopher R. Wagner for aplnt Truck Ins. re: add'l cites for O/A. letter dated May 30, 2003.
Jun 3 2003	Cause argued and submitted
Aug 14 2003	Opinion filed: Judgment reversed   Majority Opinion By Moreno, J. -- joined by George, C. J., Kennard, Baxter, Werdegar, Chin, and Brown, JJ.
Aug 29 2003	Rehearing petition filed   by respondent (Truck Insurance Exchange)
Sep 2 2003	Time extended to consider modification or rehearing   to and including November 12, 2003
Sep 9 2003	Answer to rehearing petition filed   by counsel for Amicus Curiae California Apartment Association to Respondent Truck Insurance Exchange's Petition for Rehearing (CRC 40K/FedEx)
Sep 10 2003	Received letter from:   Christopher R. Wagner, co-counsel for respondent Truck Insurance Exchange, dated 9-9-2003, with request to lodge article attached in support of Truck's Rehearing or Modification.
Sep 17 2003	Rehearing denied   Kennard, J., was absent and did not participate.
Sep 17 2003	Opinion modified - no change in judgment   Kennard, J., was absent and did not participate.
Sep 17 2003	Remittitur issued (civil case)   Certified copies sent to Fourth District, Division Two.
Sep 25 2003	Received:   Receipt for remittitur from Fourth District, Division Two, signed for by Elizabeth Ceballos, Deputy Clerk
Dec 23 2005	Received:

Briefs
May 30 2002	Opening brief on the merits filed
Jun 28 2002	Answer brief on the merits filed
Jul 17 2002	Reply brief filed (case fully briefed)
Jul 31 2002	Amicus Curiae Brief filed by:
Aug 20 2002	Response to amicus curiae brief filed
Aug 23 2002	Amicus Curiae Brief filed by:
Aug 23 2002	Amicus Curiae Brief filed by:
Aug 23 2002	Amicus Curiae Brief filed by:
Aug 23 2002	Amicus Curiae Brief filed by:
Aug 23 2002	Amicus Curiae Brief filed by:
Sep 12 2002	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website