COURT DECISIONS

Rough Notes, Aug 2004

In this case, the city owned the vehicle, immunity existed only if the officer was on an emergency call (which she was not), and the action was brought against the city, not the operator. Thus, the only issue was whether the city, as the owner of the vehicle, was self-insured. Because the city admitted it paid all judgments and settlements arising out of the negligence of its police officers from its own funds, the court found it was self-insured in the practical sense. Because the city was self-insured, it was obligated to pay Corson's damages, not Safe Auto.

The judgment of the trial court was affirmed.

Safe Auto Insurance Company v. Corson-Nos. C-030276, C-030311-Court of Appeals of Ohio, First District, Hamilton County-January 23, 2004-803 North Eastern Reporter 2d 863.

Landlord asserts tenant's contamination constituted trespass

Ali & Sons, Company, Samir Ali, and Northway Cleaners (Ali & Sons) operated a dry cleaning business from July 1, 1991, to June 30, 2001, on premises leased from lessor Gilbert Raphael. The premises were located at 7501 West Irving Park Road in Chicago. Under the lease, Ali & Sons also had use of the boiler room area of the premises at 7515 West Irving Park Road.

In November 2001, Raphael filed a complaint against Ali & Sons, alleging that it "utilized certain dry cleaning materials, chemicals and solvents, as well as certain underground storage tanks" and was negligent for contamination "around and under the premises located at 7501 West Irving Park Road" in violation of the Illinois Environmental Protection Act. The complaint also alleged, among other things, that such discharge and contamination "around and under" the premises at 7501 resulted in a trespass upon lessor's property.

National Fire and Indemnity Exchange was Ali & Sons' insurer for a portion of the lease period. National Fire filed a complaint for declaratory relief, claiming it did not owe a duty to defend or indemnify Ali & Sons under a policy covering the period from January 1, 1990, to January 1, 1993. It claimed coverage was excluded based on an absolute pollution exclusion contained in the policy.

Because of Raphael's underlying trespass complaint, National Fire anticipated Ali & Sons would assert they were covered under the policy's personal injury provisions, under a theory that the discharge and contamination constituted a "wrongful entry."National Fire argued there would be no coverage under this scenario, because trespass is an invasion of exclusive possession of land. Because Ali & Sons had exclusive possession of the premises at 7501 until 2001, there could be no invasion during the policy period.

Ali & Sons conceded the pollution exclusion applied. However, just as National Fire anticipated, they argued that they were covered under the policy's personal injury provisions by virtue of the trespass claim. According to Ali & Sons, their possession of the premises was not "exclusive," and thus the contamination could have constituted a "wrongful entry." Furthermore, Ali & Sons argued that the alleged contamination "around and under" the 7501 premises could have included the 7515 premises.