A-12-1042, State Farm Fire & Casualty v. Jerry Dantzler (Appellant)
Douglas County, Judge Kimberly M. Pankonin
Attorneys: Michael A. Nelsen (Appellant) --- David J. Stubstad/Patrick S. Cooper
Civil: Declaratory Judgment Action to Determine Insurance Coverage
Proceedings below: The trial court found that State Farm’s rental dwelling insurance policy did not cover the lead-based paint claims made against Dantzler, its insured. The trial court granted summary judgment in favor of State Farm.
Issues: Did the trial court err in finding that the insurance policy issued by State Farm did not cover the lead-based paint claims made against Dantzler?
Facts: Dantzler owns a rental property in Omaha, Nebraska. In September 2006, David Chuol and his minor child, Chuol Geit, moved into the property. In March 2011, Chuol filed a lawsuit against Dantzler on his own behalf and on behalf of his son alleging that Geit was exposed to high levels of lead from lead-based paint on the walls at the property causing him serious and permanent injury. In the lawsuit, Chuol asserted claims for negligence, breach of implied warranty of habitability, nuisance, intentional infliction of emotional distress, negligence infliction of emotional distress, and a violation of 42 U.S.C. § 4852(d). At the time the lawsuit was filed against Dantzler, he had a “Rental Dwelling Policy” of insurance with State Farm for the rental property. Dantzler tendered defense of the claims against him to State Farm pursuant to his policy.
State Farm filed a declaratory judgment action asking the court to find that the insurance policy does not provide coverage for the claims made against Dantzler arising out of exposure to lead-based paint because the claims fall under a pollution exclusion in the policy. Dantzler filed an answer and counterclaim asking the court to find that the policy at issue covers the claims made against him.
Both Danzler and State Farm subsequently filed motions for summary judgment. Dantzler alleged that summary judgment should be granted in his favor because the insurance policy provides coverage for the claims made against Dantzler because lead-based paint is not a “pollutant” as defined under the policy. State Farm alleged that it was entitled to summary judgment because the pollution exclusion precludes coverage of the lead-based paint claims asserted in the lawsuit against Dantzler.
The trial court found that the pollution exclusion was unambiguous and that lead is a pollutant within the meaning of the exclusion. It further found that Geit could only have been exposed to the lead if it was “discharged, dispersed, released, or escaped from its location.” Therefore, the trial court found that the pollution exclusion precluded coverage of the claims against Dantzler. The court granted summary judgment in favor of State Farm and denied Dantzler’s motion for summary judgment.