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Smith v. Georgia Farm Bureau Mutual Insurance Co.

Court of Appeals of Georgia

March 30, 2015

SMITH
v.
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. CHUPP
v.
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY

Cert. applied for.

Commercial general liability insurance. Newton Superior Court. Before Judge Wynne.

Jonathan W. Johnson, Childers, Schlueter & Smith, C. Andrew Childers, for appellant (case no. A14A1824).

Strauss & Frost, John L. Strauss, for appellant (case no. A14A1825).

James Bates Brannan Groover, Duke R. Groover, Lee M. Gillis, Jr., for appellee.

OPINION

Page 453

Phipps, Chief Judge.

Amy Smith, individually and as next friend of Tyasia Brown, filed a personal injury action against Bobby Chupp, alleging that Brown, her daughter, suffered severe and permanent injuries as a result of having ingested lead-based paint in the house they rented from Chupp.

Georgia Farm Bureau Mutual Insurance Company (" GFBM" ), with which Chupp had a commercial general liability insurance policy on the property, filed a declaratory judgment action against [331 Ga.App. 781] Smith and Chupp, seeking a determination that it was not required to provide coverage for the alleged injuries or to defend Chupp in the personal injury action because the alleged injuries came within the policy's " [p]ollution exclusion." The trial court granted summary judgment to GFBM in the declaratory judgment action.

In Case No. A14A1824, Smith appeals from the grant of summary judgment in the declaratory judgment action. In Case No. A14A1825, Chupp appeals from the same ruling. For the reasons that follow, we reverse the judgment in both cases.

In her personal injury complaint, Smith alleged that she and her daughter (who was born in 2004) resided as tenants in Chupp's rental house for several years, beginning in 2004; that a health department inspection of the premises in 2007 revealed that the house had been painted with lead-based paint and that deteriorated lead-based paint was present throughout the house; that said paint was cracking, chipping, and peeling; that the child had been exposed repeatedly and continuously over a period of years to high levels of lead from lead paint; that medical tests conducted in 2007 revealed that the child had lead in her bloodstream; that an investigator's report concluded that " the likely primary cause for the [child's] elevated blood

Page 454

lead level is ingestion of leaded paint chips or dust" ; that the child's exposure to the lead-based paint during her infancy resulted in debilitating, permanent disabilities; and that Chupp breached his duties to, inter alia, keep the premises safe by abating the premises of lead paint and to warn Smith of the dangers posed by lead on the premises, the presence of which he had knowledge.

At issue in this case is whether the lead-based paint claims asserted in Smith's personal injury action are excluded from coverage pursuant to the insurance policy's " pollution exclusion." We hold that the claims are not excluded.

Under the " Coverages" section of the policy, Section I, Paragraph 1, Subparagraph (a) provides in relevant part:

We will pay those sums that the insured becomes legally obligated to pay as damages because of " bodily injury" or " property damage" to which this insurance applies. We will have the right and duty to defend the insured against any " suit" seeking those damages. However, we will have no duty to defend the insured against any " suit" seeking damages for " bodily injury" or " property damage" to which this insurance does not apply. We may, at our discretion, investigate any " occurrence" and settle any claim or suit that may result.

[331 Ga.App. 782] Subparagraph (b) pertinently states:

This insurance applies to " bodily injury" and " property damage" only if: (1) [t]he " bodily injury" or " property damage" is caused by an " occurrence" that takes place in the " coverage territory."

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