EMPLOYERS CASUALTY COMPANY v. ST PAUL FIRE AND MARINE INSURANCE COMPANY

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Court of Appeal, Second District, Division 5, California.

EMPLOYERS CASUALTY COMPANY, Plaintiff and Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant and Respondent.

No. B084598.

Decided: April 11, 1996

Koletsky, Mancini & Feldman, Marc B. Mostman and Leslie M.B. Cole, Los Angeles, for Plaintiff and Appellant. Selman & Breitman and Robert A. Steller, San Diego, for Defendant and Respondent.

Plaintiff and appellant Employers Casualty Company appeals from the summary judgment entered against it and in favor of defendant and respondent St. Paul Fire and Marine Insurance Company, in this coverage dispute between two consecutive insurers of the same insured.   In the unpublished portion of the opinion, we conclude a disputed issue of fact exists as to whether injury was sustained during the second policy period, precluding summary judgment on that ground.   In the published portion of the opinion, we conclude the absolute pollution exclusion of St. Paul's comprehensive general liability policy precludes coverage and therefore affirm.

PROCEDURAL BACKGROUND

On December 30, 1992, Employers filed suit against St. Paul, seeking declaratory relief, equitable subrogation and equitable contribution with respect to amounts it had paid on behalf of their mutual insured, HCB Contractors, to settle a lawsuit brought by Larry Corum, an employee of one of HCB's subcontractors, who was injured on an HCB construction project.   Employers was HCB's comprehensive general liability carrier for 1986;  St. Paul's covered HCB for 1987.   Employers contends that Corum's injuries were incurred during both policy periods and therefore seeks a pro rata share of the settlement amount and defense costs from St. Paul.

Employers and St. Paul filed cross-motions for summary judgment.   St. Paul argued that it was entitled to summary judgment on three grounds:  (1) it had no duty to defend or indemnify HCB in the Corum action because no injuries alleged in that action occurred during the period of St. Paul's coverage of HCB;  (2) it had no duty to defend or indemnify HCB in the Corum action because coverage was precluded by the absolute pollution exclusion contained in its policy;  and (3) Employers had acted as a mere volunteer in defending and settling the Corum action.

The trial court granted St. Paul's motion on the first ground raised.   The trial court concluded that Corum's injuries first manifested during Employers's policy period and predated St. Paul's policy;  the injuries therefore constituted a loss in progress at the time of the issuance of the St. Paul policy and could not have been covered under that policy.   Judgment was entered in favor of St. Paul. Employers filed a timely notice of appeal.

FACTS

Corum worked as an electrician for Newbery Electric Corporation on the construction of a commercial office building for which HCB was the general contractor.   While working at the job site, Corum burned holes with an acetylene torch through the “Monokote” coating on the decks of the building, so that conduit could be run through the floors.   Monokote coating is a plaster used for fireproofing.   It had been sprayed on the metal floors during the construction of the project.   The heat emanating from Corum's acetylene torch ignited the Monokote coating, creating toxic sulfur dioxide fumes.   The inhalation of these fumes caused Corum to suffer severe internal injuries.

On February 3, 1988, Corum filed suit against HCB and Monokote (the manufacturer), stating causes of action for negligence, products liability and premises liability.   In his complaint, Corum alleged the date of his injury was February 9, 1987.   Because this date was within St. Paul's policy period, HCB sent the action to St. Paul for defense.   Upon investigation, it was determined that the date of initial injury was December 3, 1986.   HCB therefore asked Employers to assume the defense of the action, which it did.

In 1992, a good faith settlement was reached in the Corum action, in which Employers, on behalf of HCB, contributed $190,000 of a total $245,000 settlement.

DISCUSSION

IStandard of Review

“The policy underlying motions for summary judgment and summary adjudication of issues is to ‘ “promote and protect the administration of justice, and to expedite litigation by the elimination of needless trials.” ’ ”  (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323, 39 Cal.Rptr.2d 296.)

“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc., § 437c, subd. (a).)  The motion and the opposition to the motion “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.”  (Id. at subd. (b).)  Separate statements setting forth plainly and concisely all material facts which the parties contend are undisputed must be included.1  (Ibid.)  “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.   In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence ․ and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted ․ on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.”   (Id. at subd. (c);  KOVR–TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, 37 Cal.Rptr.2d 431.)

A defendant or cross-defendant meets his or her burden upon a motion for summary judgment or summary adjudication if that party has proved “one or more elements of the cause of action ․ cannot be established, or that there is a complete defense to that cause of action.”  (Code Civ. Proc., § 437c, subd. (o)(2).)   Once the defendant or cross-defendant has met that burden, the “burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists․”  (Ibid.;  Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 37 Cal.Rptr.2d 653.)

 On appeal, we exercise “an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court․”  (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222, 38 Cal.Rptr.2d 35;  Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 579, 37 Cal.Rptr.2d 653.)   Where summary judgment has been granted and there is a sufficient ground to support it, it will be upheld regardless of the ground the trial court used to support its decision.   (Troche v. Daley (1990) 217 Cal.App.3d 403, 407–408, 266 Cal.Rptr. 34.)

II***

III

HCB was sued by Corum for bodily injury arising out of his inhalation of toxic sulfur dioxide fumes resulting from the application of heat to the Monokote coating.   We are asked to determine whether this bodily injury was excluded from coverage under the absolute pollution exclusion contained in St. Paul's comprehensive general liability insurance policy issued to HCB.   In making this determination, we rely on established principles of insurance policy interpretation.

Principles of Insurance Policy Interpretation

 “An insurance policy, like all contracts, is to be interpreted to effectuate the mutual intent of the parties.  [Citation.]  Where possible, we must look solely to the terms of the policy, and the clear and explicit meaning of the policy terms (understood in their ordinary and popular sense) will govern our interpretation.  [Citation.]  If the policy is ambiguous (i.e., susceptible to more than one reasonable interpretation), the ambiguity is construed in favor of coverage.  [Citation.]  [¶] However, the predicate to interpreting ambiguities in favor of coverage is that the policy be reasonably susceptible to more than one interpretation.   Where a policy clearly excludes coverage, we will not indulge in tortured constructions to divine some theoretical ambiguity in order to find coverage.  [Citation.]  An insurer is entitled to limit its coverage to defined risks, and if it does so in clear language, we will not impose coverage where none was intended.”  (Titan Corp. v. Aetna Casualty & Surety Co. (1994) 22 Cal.App.4th 457, 469, 27 Cal.Rptr.2d 476, italics in original.)  “An insurer may select the risks it will insure and those it will not, and a clear exclusion will be respected.   [Citation.]  ‘Courts may not rewrite the insurance contract or force a conclusion to exact liability where none was contemplated.’ ”  (Legarra v. Federated Mutual Ins. Co. (1995) 35 Cal.App.4th 1472, 1480, 42 Cal.Rptr.2d 101.)   Nor will we consider extrinsic evidence of the drafting history of a standard insurance policy clause in the absence of an ambiguity in the policy language.  (ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co. (1993) 17 Cal.App.4th 1773, 1790–1793, 22 Cal.Rptr.2d 206.)  “The determination of whether a contract is ambiguous is subject to independent review by this court.  [Citation.]  Whether a clause is ambiguous and whether an insured has an objectively reasonable expectation of coverage in light of the insuring language are questions of law.”  (Titan Corp. v. Aetna Casualty & Surety Co., supra, 22 Cal.App.4th at p. 469, 27 Cal.Rptr.2d 476.)

The Policy

The policy excludes from coverage “bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:  [¶] at or from any site or location on which the named insured or any contractors or subcontractors working directly on behalf of the named insured are performing operations:  [¶] if the pollutants are brought on or to the site or location in connection with such operations.”   “Pollutant[ ] means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” 3

“The pollution exclusion at issue here is known as an ‘absolute pollution exclusion.’ ”  (Legarra v. Federated Mutual Ins. Co., supra, 35 Cal.App.4th at p. 1480, 42 Cal.Rptr.2d 101.)   This is in contrast to an earlier version of the standard pollution exclusion which contained a “sudden and accidental” exception to the exclusion.  (ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co., supra, 17 Cal.App.4th at p. 1778, 22 Cal.Rptr.2d 206.)  “ ‘This pollution exclusion is just what it purports to be—absolute—and [we] perceive[ ] no reason why [the insurer] should be denied the benefit of its bargain with [the insured], as reflected in the insurance contract.’ ”   (Legarra v. Federated Mutual Ins. Co., supra, 35 Cal.App.4th at p. 1480, 42 Cal.Rptr.2d 101.)

 The absolute pollution exclusion has been found to be absolute, clear and unambiguous under circumstances different from those involved in this case.  (Legarra v. Federated Mutual Ins. Co., supra, 35 Cal.App.4th at p. 1480, 42 Cal.Rptr.2d 101 [groundwater contamination from petroleum bulk plant];  Titan Corp. v. Aetna Casualty & Surety Co., supra, 22 Cal.App.4th at pp. 469–470, 27 Cal.Rptr.2d 476 [TCE soil and groundwater contamination at ferrite manufacturing facility].)   We conclude that the exclusion is similarly absolute, clear and unambiguous under the facts of this case.4

In determining that the pollution exclusion contained in St. Paul's comprehensive general liability policy is absolute, clear and unambiguous, we consider, in turn, the four component parts of the exclusion:  (1) “discharge, dispersal, release or escape”;  (2) “pollutant”;  (3) “at or from any site or location” on which HCB, or subcontractors working directly on behalf of HCB, “are performing operations”;  and (4) “brought on or to the site or location in connection with such operations.”

Discharge, Dispersal, Release Or Escape

 Words in an insurance policy are to be given their ordinary and popular meanings.   Therefore, we look to the ordinary meanings of discharge, dispersal, release and escape.   Discharge is a release, emission or issuance.  (Webster's New Collegiate Dict. (9th ed. 1984) p. 360.)   Dispersal is a scattering, spreading or distribution.  (Id. at p. 365.)   Release is a liberation, freeing, or permitting to escape.  (Id. at p. 994.)   Escape is a leakage or outflow.  (Id. at p. 424.)   These terms taken together constitute a comprehensive description of the processes by which pollutants may cause injury to persons or property.

In this case, there is no question sulfur dioxide fumes were discharged, released, freed or permitted to escape into the workplace from the Monokote coating when Corum used an acetylene torch to burn the floors and ignited the Monokote coating.   Accordingly, it is easily concluded that the first component of the absolute pollution exclusion has been satisfied.

 It might be argued, however, that the terms “discharge, dispersal, release or escape” require a discharge of pollutants into the environment or a discharge outside the area of their intended use.   The plain language of the exclusion, however, contains no such requirement and clearly refers to any discharge, dispersal, release or escape.   In fact, the plain language of the exclusion militates against any such restrictive environmental construction:  the exclusion expressly refers to discharge, dispersal, release or escape “at” a site.   Moreover, the absolute pollution exclusion does not contain the limiting language of an earlier version of the exclusion, requiring the discharge, dispersal, release or escape to be “into or upon land, the atmosphere or any water course or body of water.”  (ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co., supra, 17 Cal.App.4th at p. 1778, 22 Cal.Rptr.2d 206.)   We conclude the release of toxic sulfur dioxide fumes into the workplace was a discharge, release or escape within the clear meaning of the exclusion.5

Pollutant

 The policy defines a “pollutant” to include any gaseous irritant or contaminant including fumes.   A pollutant need not be a hazardous substance to fall within the pollution exclusion, it need only be an irritant or contaminant.  (Legarra v. Federated Mutual Ins. Co., supra, 35 Cal.App.4th at p. 1481, 42 Cal.Rptr.2d 101.)   Sulfur dioxide is “a colorless, irritating gas.”  (Cal.Code Regs., tit. 17, § 70100, subd. (i).)  Accordingly, the sulfur dioxide fumes released from the Monokote coating constitute a gaseous irritant and, therefore, a pollutant within the meaning of the pollution exclusion.6  Moreover, the parties agree the fumes were “toxic.”   Thus, sulfur dioxide fumes are a toxic chemical well within any definition of pollutant.

At a Site on Which HCB and Its Subcontractor Were Performing Operations

 The exclusion applies if a discharge of pollutants occurred at a site on which HCB and its subcontractors were performing operations.   We have already determined that a discharge or release of pollutants occurred.   We next consider whether HCB and its subcontractors were performing operations at the site where the discharge of pollution occurred.   They were.   HCB was the general contractor of a commercial office building project.   Metal decks of the building were constructed, which were then sprayed with a Monokote fireproof coating.   Corum, an electrician, burned through the Monokote-coated decking in order to run electrical conduit for the commercial office building, causing sulfur dioxide fumes to be released from the Monokote coating.   Corum was injured when a pollutant, sulfur dioxide fumes, was discharged at the commercial office building site at which HCB and its subcontractors were performing construction operations.   The third component of the pollution exclusion has been satisfied.   HCB was performing construction operations at the site both at the time the Monokote was brought to the site and at the time the Monokote was ignited releasing the toxic fumes.7

Brought to the Site in Connection With HCB's Operations

 The exclusion applies if the pollutant was brought to the site in connection with the operations of HCB or its subcontractors.   Here, the Monokote was brought to the site by HCB or its subcontractors in connection with the construction of the commercial office building.   Thus, the fourth component of the exclusion is satisfied.

It might be argued, however, that the exclusion applies only where the pollutant, in its irritating or contaminating form, is brought to the site.   In this case, it could be argued that Monokote is not a pollutant and the toxic sulfur dioxide fumes were not brought to the site, but rather were created at the site when Corum's torch came into contact with the Monokote coating.   Although this distinction may be significant in some cases, it is of no significance in this case.8  HCB or its subcontractors sprayed the Monokote coating on the metal floors during the construction of the commercial office building.   During the construction of the same commercial office building, HCB or its subcontractors applied an acetylene torch to the Monokote coating, igniting the Monokote and releasing toxic sulfur dioxide fumes.   Thus, the pollutant, in the form of Monokote, as well as the pollutant, in the form of sulfur dioxide fumes, was brought to the construction site by HCB or its subcontractors in connection with the construction operations.

Negligence

 The pollution exclusion is absolute.   The fact that the discharge, dispersal, release or escape of the pollutant may have been the result of negligence does not preclude the application of the absolute pollution exclusion.   California's adoption of the “efficient proximate cause” doctrine has no place in this analysis.   Under this theory, “[w]hen a loss is caused by a combination of a covered and specifically excluded risks, the loss is covered if the covered risk was the efficient proximate cause of the loss.”  (State Farm Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131, 2 Cal.Rptr.2d 183, 820 P.2d 285.)   The efficient proximate cause is the cause which sets the other cause in motion.  (Ibid.)  Thus, when the excluded risk of earth movement is caused by the covered risk of third-party negligence, the entire loss is covered.   (Id. at pp. 1132–1133, 2 Cal.Rptr.2d 183, 820 P.2d 285.)   Likewise, when the excluded risk of a leaking underground storage tank is caused by the covered risk of earthquake, the loss is covered.  (Brian Chuchua's Jeep, Inc. v. Farmers Ins. Group (1992) 10 Cal.App.4th 1579, 13 Cal.Rptr.2d 444.)   However, for the efficient proximate cause theory to apply, there must be two separate or distinct perils.   They must be conceptually distinct, “that is, they could each, under some circumstances, have occurred independently of the other and caused damage.”  (Finn v. Continental Ins. Co. (1990) 218 Cal.App.3d 69, 72, 267 Cal.Rptr. 22.)   When the damage is not caused by two distinct causes, but rather by “a single cause, albeit one susceptible to various characterizations,” the efficient proximate cause analysis has no application.  (Chadwick v. Fire Ins. Exchange (1993) 17 Cal.App.4th 1112, 1117, 21 Cal.Rptr.2d 871.)   Thus there is no coverage where an excluded risk of a latent construction defect was caused by the covered risk of “negligent construction.”  (Id. at pp. 1116–1119, 21 Cal.Rptr.2d 871.)   Nor is there coverage when an excluded risk of a gradual leak is caused by the covered risk of a broken pipe.  (Finn v. Continental Ins. Co., supra, 218 Cal.App.3d at pp. 71–73, 267 Cal.Rptr. 22.)

 This is not to say that a case may not arise in which the insured can point to a separate and distinct cause of pollution, so as to trigger the efficient proximate cause analysis.  (See Brian Chuchua's Jeep, Inc. v. Farmers Ins. Group, supra, 10 Cal.App.4th at p. 1583, 13 Cal.Rptr.2d 444.)   However, to simply argue that the pollution itself was negligently caused is not sufficient.   If negligently caused pollution were covered under an efficient proximate cause analysis, the absolute pollution exclusion, which precludes coverage for all “accidental” releases, would be rendered a nullity.   The earlier, qualified pollution exclusion provided coverage when the discharge was “sudden and accidental” and excluded from coverage any injury arising from a discharge that was gradual, although accidental.  (ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co., supra, 17 Cal.App.4th at pp. 1779–1794, 22 Cal.Rptr.2d 206.)   The absolute pollution exclusion contains no language excepting “sudden and accidental” discharges, and cannot be read to implicitly except those which were merely accidental.   One cannot read an “accidental” exception back into the absolute pollution exclusion by means of “efficient proximate cause” analysis.

In this case, the negligence involved in cutting the Monokote coating with an acetylene torch cannot be considered as a cause separate and distinct from the sulfur dioxide pollution released from the Monokote when it was so cut.   The use of an acetylene torch to cut the Monokote coating would not have been negligent had it not created toxic sulfur dioxide fumes;  the Monokote coating would not have independently released the toxic fumes in the absence of the application of the acetylene torch.  “Whether characterized as negligent, intentional or innocently inadvertent, the peril itself—[the toxic fumes]—is one and the same.”  (Chadwick v. Fire Ins. Exchange, supra, 17 Cal.App.4th at p. 1118, 21 Cal.Rptr.2d 871.) 9

Conclusion

 The pollution exclusion in this case is clear, unambiguous and absolute.   It excludes from coverage bodily injury arising out of the release of a pollutant at a site at which the insured contractor is performing operations, if the pollutant is brought to the site in connection with the contractor's operations.   It is undisputed that Corum suffered bodily injury arising out of the release of toxic sulfur dioxide fumes, a pollutant, at the commercial office building site at which HCB was performing construction operations and the pollutant was brought to the site in connection with HCB's construction operations.   Accordingly, there is no coverage under St. Paul's policy.10

DISPOSITION

The judgment is affirmed.   Employers is to pay St. Paul's costs on appeal.

FOOTNOTES

1.   Although Employers did not file a separate statement of disputed facts in opposition to St. Paul's motion for summary judgment, it did file a separate statement of undisputed facts in support of its own motion for summary judgment.

FOOTNOTE.   See footnote*, ante.

3.   The pollution exclusion reads in full as follows:  “It is agreed that the exclusion relating to 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 is replaced by the following:  [¶] (1) to bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:  [¶] (a) at or from premises owned, rented or occupied by the named insured;  [¶] (b) at or from any site or location used by or for the named insured or others for the handling, storage, disposal, processing or treatment of waste;  [¶] (c) which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for the named insured or any person or organization for whom the named insured may be legally responsible;  or [¶] (d) at or from any site or location on which the named insured or any contractors or subcontractors working directly on behalf of the named insured are performing operations:  [¶] (i) if the pollutants are brought on or to the site or location in connection with such operations;  or [¶] (ii) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize the pollutants. [¶] (2) to any loss, cost or expense arising out of any governmental direction or request that the named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.  [¶] Pollutant[ ] means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.   Waste includes materials to be recycled, reconditioned or reclaimed.  [¶] Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the above mentioned Policy, other than as above stated.”  (Emphasis omitted.)

4.   We apply California law.   The parties have not suggested that any other state's law applies, even though St. Paul's policy was issued in Texas to HCB, a Texas limited partnership.   We note that Texas courts apply similar principles of construction to insurance contracts, and have also held an “absolute pollution exclusion” to be unambiguous.   (National Union Fire Ins. Co. v. CBI Industries, Inc. (Tex.1995) 907 S.W.2d 517.)

5.   Some cases from other jurisdictions which have concluded to the contrary have relied on rules of insurance policy interpretation that differ from California rules.  (See Atlantic Mut. Ins. Co. v. McFadden (1995) 413 Mass. 90, 595 N.E.2d 762, 764 [construing the policy as a reasonable insured might, without first finding an ambiguity in the policy language];  West American Ins. v. Tufco Flooring East (1991) 104 N.C.App. 312, 409 S.E.2d 692, 699 [considering drafting history of clause without first finding it ambiguous];  Stoney Run Co. v. Prudential–LMI Commercial Ins. Co. (2d Cir.1995) 47 F.3d 34, 36–37 [finding an ambiguity in the exclusion when construing it in light of its purpose, which was to apply to environmental pollution only, rather than focusing solely on the language of the exclusion];  Bituminous Casualty Corp. v. Advanced Adhesive Technology, Inc. (11th Cir.1996) 73 F.3d 335, 338–339 [finding “discharge” to be ambiguous merely because it has more than one dictionary definition];  Grinnell Mut. Reinsurance Co. v. Wasmuth (Minn.App.1988) 432 N.W.2d 495, 499 [ignoring the contractual language in favor of the insured's reasonable expectation that the exclusion applied to large-scale environmental pollution only], overruled by Board of Regents v. Royal Ins. Co. (Minn.1994) 517 N.W.2d 888, 891 [“[t]he reasonable expectation test is not a license to ignore the pollution exclusion ․ nor to rewrite the exclusion solely to conform to a result that the insured might prefer”].)   Other cases are factually distinguishable.  (Center for Creative Studies v. Aetna Life and Cas. (E.D.Mich.1994) 871 F.Supp. 941, 946 [student's exposure to a chemical regularly used in a photography lab did not constitute a discharge, dispersal, release or escape of a pollutant];  Generali–U.S. Branch v. Caribe Realty Corp. (N.Y.Sup.1994) 160 Misc.2d 1056, 612 N.Y.S.2d 296, 299 [child's eating of lead paint chips did not constitute a release of a pollutant].)   Still other courts have construed the words “discharge, disperse, release or escape” to be environmental law terms of art applicable only to discharges into the environment.  (See Island Associates, Inc. v. Eric Group, Inc. (W.D.Pa.1995) 894 F.Supp. 200, 203–204 [pollution exclusion applicable only where pollutants are discharged outside the area of their intended use];  Atlantic Mut. Ins. Co. v. McFadden, supra, 595 N.E.2d at p. 764 [pollution exclusion applicable only to damage or injury caused by improper disposal or containment of hazardous waste];  cf.  Oates by Oates v. State (N.Y.Ct.Cl.1993) 157 Misc.2d 618, 597 N.Y.S.2d 550, 553 [rejecting the environmental limitation].)

6.   It is unnecessary to determine whether the terms “irritant or contaminant” are ambiguous in the abstract.  (Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. (7th Cir.1992) 976 F.2d 1037, 1043.)   Broadly defined, the terms could encompass injuries resulting from a fall on spilled Drano or an allergic reaction to pool chlorine.  (Ibid.)  Courts in other jurisdictions have struggled with substances near the outer limit of the definitions of irritant or contaminant.  (Regional Bank of Colo. v. St. Paul Fire & Marine (10th Cir.1994) 35 F.3d 494, 498 [carbon monoxide emissions from a malfunctioning residential heater];  Sullins v. Allstate Ins. Co. (1995) 340 Md. 503, 667 A.2d 617, 620–623 [lead paint inside residence];  St. Leger v. American Fire and Cas. Ins. Co. (E.D.Pa.1994) 870 F.Supp. 641, 643 [same];  Perkins Hardwood Lumber v. Bituminous Cas. (1989) 190 Ga.App. 231, 378 S.E.2d 407, 408–409 [smoke from wood fire reducing visibility on nearby roadway].)

7.   The insured need not have been performing operations at the moment the injuries were suffered, but only when the pollutant was brought to the site.  (Tri County Service v. Nationwide Mut. (Tex.App.1994) 873 S.W.2d 719, 722.)

8.   Courts in other jurisdictions have struggled with this distinction.  (League of Minn. Cities Ins. Trust v. Coon Rapids (Minn.App.1989) 446 N.W.2d 419, 422 [the exclusion is triggered when toxic gas is emitted from an ice resurfacing machine brought to the premises by the insured];  West American Ins. v. Tufco Flooring East, supra, 409 S.E.2d at p. 698 [exclusion is not applicable unless the material brought to the site is an irritant or contaminant].)

9.   Other jurisdictions have reached similar conclusions.   Application of the absolute pollution exclusion “does not depend on ‘theories of liability’ regarding whether, in some metaphysical sense, the property damage [or personal injury] was caused by initial negligence, subsequent pollution, or both, but merely on the fact or ‘occurrence’ of property damage [or personal injury] as a result of the pollution.”   (American States Ins. Co. v. Skrobis Painting & Decorating, Inc. (App.1994) 182 Wis.2d 445, 513 N.W.2d 695, 698–699;  Economy Preferred Ins. Co. v. Grandadam (1995) 275 Ill.App.3d 866, 212 Ill.Dec. 190, 193, 656 N.E.2d 787, 790.)

10.   In light of this conclusion, we need not address whether Employers acted as a mere volunteer.

GRIGNON, Associate Justice.

TURNER, P.J., and GODOY PEREZ, J., concur.