United States District Court,

S.D. New York.

Patricia A. MARCOUX, Plaintiff,

v.

FARM SERVICE AND SUPPLIES, INC., Hribar Truck & Equipment Corp. and Bradley

Jones, Defendants.

Sept. 12, 2003.

OPINION AND ORDER

CONNER, Sr. D.J.

Plaintiff Patricia Marcoux brings this action against defendants Farm Service and Supplies, Inc. (“Farm Service”), Hribar Truck & Equipment Corp. (“Hribar”) and Bradley J. Jones (“Jones”). [FN1] In her first claim for relief, she alleges that Jones, an employee of Farm Service, negligently operated a tractor-trailer truck, the trailer of which was owned by Hribar and leased to Farm Service, thereby causing a motor vehicle accident in which she was injured. In her second claim for relief, plaintiff alleges that defendants’ actions were “wanton, reckless and malicious,” and demands punitive damages. Defendants have moved pursuant to FED. R. CIV. P. 56(b) for partial summary judgment dismissing plaintiff’s second claim for relief. For the reasons set forth herein, we grant defendants’ motions for partial summary judgment.

FN1. This matter is before this Court pursuant to its diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff is a New York resident, while Jones is a Wisconsin resident, Farm Service is an Illinois corporation and Hribar is a Wisconsin corporation.

BACKGROUND [FN2]

FN2. Hribar’s Local Rule 56.1 Statement lacks the required citations to admissible evidence in the record, rendering it of little assistance to the Court in deciding this motion. Accordingly, whenever possible and appropriate, we rely instead on the Rule 56.1 Statements of plaintiff, Farm Service and Jones.

On the rainy day of June 6, 2002, at approximately 4:50 p.m., a motor vehicle accident occurred on Route 100 near Seven Bridges Road in Yorktown, New York, between plaintiff, who was driving northbound in her 1998 Honda sedan, and Jones, [FN3] who was driving a tractor trailer in the southbound lane. Jones was driving a 1996 International semi-tractor, owned by Farm Service, that was connected to an unloaded flatbed trailer owned by Hribar and leased to Farm Service. At the location of the accident, Route 100 is a two-lane roadway with a double yellow line that separates northbound from southbound traffic. In addition, although Route 100 is generally a north-south highway, at the scene of the accident, the roadway runs east-west; it curves generally to the right for westbound traffic and to the left for castbound traffic. (Def. Farm Service Rule 56.1 Stmt. ¶¶ 1-5; Pl. Rule 56.1 Stmt. ¶¶ 1-5.) At the time of the accident, the roadway was wet because it was raining. (Def. Farm Service Rule 56.1 Stmt. ¶ 7.)

FN3. By way of background, Robert Market, president of Farm Service, testified at his deposition that he checked and reviewed Jones’s driving record during the hiring process. (Pl. Affm., Ex. H at 6, 36 .) An examination of Jones’s driving record did not reveal any accidents, but does indicate that his license was suspended in November 1996 and January 2001, for failure to pay forfeitures. Between 1996 and 2002, Jones received five speeding tickets, two tickets for failure to keep the required drivers’ log book, three tickets for failure to fasten his safety belt and equipment violations for improper tire equipment, a defective speedometer and lack of required reflective tape. Jones also received tickets for failure to have his license on his person and for driving with expired license and registration. Finally, he has received two written warnings, one for an overweight axle and the other for speeding. (Pl. Mem. Opp. Partial Summ. J. at 11; Pl. Affm., Exs. H at 36-38, J.)

Immediately before the accident occurred, plaintiff had been proceeding northbound and Jones had been proceeding southbound. Jones drove the truck around the curve towards the intersection with Seven Bridges Road, thus changing his course of travel to westbound. Approaching the intersection, [FN4] he applied the truck’s brakes, but was unable to stop in time on the wet pavement. Jones steered the truck to the right and struck the right-side guardrail with the tractor. The trailer swung out slightly into the opposing traffic lane, and its rear wheels struck plaintiff’s car. (Def. Farm Service Rule 56.1 Stmt. ¶ 8; Pl. Rule 56.1 Stmt. ¶ 8.) The tractor came to rest after the accident a few hundred feet from the intersection with Seven Bridges Road. Plaintiff sustained serious injuries as a result of the accident.

FN4. Jones told the investigating police officers that when he drove the truck around the curve, he saw five cars stopped at a traffic light, waiting for the lead car to make a left turn onto Seven Bridges Road. He stated that he had to drive the tractor into the guardrail in order to avoid striking them. (Def. Farm Service Rule 56.1 Stmt. ¶ 11.) We note that plaintiff disputes this assertion, and claims that there were no other vehicles ahead of Jones’s truck and no vehicles planning to make a left turn onto Seven Bridges Road. (Pl. Rule 56.1 Stmt. ¶ 6.) For purposes of deciding this motion, we will draw all inferences in plaintiff’s favor, and assume without deciding that there were no other vehicles at the intersection. See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242. 255 (1986).

Thereafter, Yorktown Police Officers Richard Finn [FN5] and Timothy Tausz [FN6] investigated the accident. [FN7] They did not interview any person who claimed to have witnessed the accident. (Def. Farm Service Rule 56.1 Stmt. ¶ 10; Pl. Rule 56.1 Stmt. ¶ 10.) The investigating officers also did not observe any skid marks at the scene of the accident. (Def. Farm Service Rule 56.1 Stmt. ¶ 13.) While at the scene, Finn inspected the tractor- trailer. (Def. Farm Service Rule 56.1 Stmt. ¶ 15.) He found that the trailer itself was over the double yellow line, and that it had been operated at an unreasonable speed because its driver was unable to control it on the wet road surface. (Def. Farm Service Rule 56.1 Stmt. ¶ 19.) Subsequently, Finn issued five traffic tickets to Jones, two of which were for unsafe trailer tires. [FN8]

FN5. The parties dispute Finn’s qualifications with respect to accident investigation and reconstruction. Plaintiff claims that Finn has training in accident reconstruction (Pl. Rule 56.1 Stmt. ¶ 25) while defendants claim that he has not had any such training, with the exception of the basic police academy class in assessing road and weather conditions and taking operator statements. (Def. Farm Service Rule 56.1 Stmt. ¶ 31; Def. Farm Service Affm., Ex. 9 at 36.)

FN6. Tausz has been a police officer for twenty-three years and presently holds the rank of detective. (Pl. Rule 56.1 Stmt. ¶ 38; Def. Farm Service Affm., Ex. 10 at 6-7.) He has a degree in police science from Rockland Community College and has training from the New York State Division of Criminal Justice Services in accident reconstruction at the basic, intermediate and advanced levels. (Pl. Rule 56.1 Stmt. ¶ 38.) He also has received training in commercial vehicle accident reconstruction at the University of Arkansas at Jonesboro and is a New York State certified weighmaster. (Id.) Tausz also teaches accident investigation and reconstruction to other officers. (Id.) Tausz, however, does not have a bachelor’s or other degree in automotive engineering, specifically in brake and tire systems. (Def. Farm Service Rule 56.1 Stmt. ¶¶ 39-40.)

FN7. Sergeant Gullery, the supervisor of Finn and Tausz, also participated in the investigation. (Def. Farm Service Rule 56.1 Stmt. ¶ 12.)

FN8. The other tickets issued to Jones were for crossing a double yellow line, driving at an unreasonable speed and failing to affix the required highway use tax sticker to the tractor’s front bumper. (Def. Farm Service Affm., Ex. 9 at 22-23.)

With respect to the trailer’s tires, the tickets were issued for excessive wear and tear on the right-outer tire on the fourth axle and the right-outer tire on the fifth axle. (Def. Farm Service Rule 56.1 Stmt. ¶¶ 21, 25.) Finn based his determination that the tires were unsafe on a visual assessment of the tires, and their wear and tear, but he did not actually measure the tread depth of the tires. [FN9] (Def. Farm Service Rule 56.1 Stmt. ¶¶ 22-23; Pl. Rule 56.1 Stmt. ¶ 26.) In his post-accident investigation, Tausz determined that three or four of the trailer’s eight tires were unsafe, and that the tire tread on those tires was less than 1/32″ at the point of measurement, although he does not recall which specific tires were unsafe other than those two that were the subject of the citations issued by Finn. (Pl. Rule 56.1 Stmt. ¶¶ 22-24; Def. Farm Service Rule 56.1 Stmt. ¶ 42.) Tausz also determined that the truck was traveling at an unreasonable speed based on road and weather conditions, as well as the fact that the trailer entered the oncoming lane; he did not, however, actually calculate the speed of either vehicle or the “critical curve speed” [FN10] as part of his investigation. (Def. Farm Service Rule 56.1 Stmt. ¶ 45.) Tausz concluded that adequate tread depth is necessary on all of the trailer’s tires in order to maintain traction and prevent skidding, and that the inadequate tread depth combined with the unreasonable speed to cause the trailer’s skid into the oncoming lane and the resulting accident. [FN11] (Pl. Rule 56.1 Stmt. ¶ 45.)

FN9. Finn does not carry a tire tread depth gauge as part of his regular equipment. (Def. Farm Service Rule 56.1 Stmt. ¶ 24.)

FN10. The “critical curve speed” is the speed, dependent on vehicle and road conditions, at which a vehicle being driven through a curve will go out of control under all circumstances. (Def. Farm Service Affm., Ex. 10 at 38.)

FN11. Defendants have proffered an expert who has arrived at a contrary conclusion with respect to the effect of the trailer’s worn tires. Dr. Christopher Shapley, an automotive engineer, stated in his report that, in his opinion to a reasonable degree of engineering certainty, the worn tires did not affect the outcome of the accident because the trailer’s movement was caused by “trailer swing.” Trailer swing occurs when all of the trailer tires lock up, a frequent occurrence with truck air brakes on wet pavement, especially with a light, unloaded trailer. Shapley opined that once lockup occurs, tire tread depth is irrelevant to cornering traction. Indeed, Shapley noted that even those tires that had adequate tread had locked up as well. (Def. Farm Service Affm., Ex. 15.)

Another expert proffered by defendants is James Gardner, a mechanical engineer who specializes in tire design and construction. Gardner reviewed photographs of the truck’s tires. He concluded that none of the tires showed wear substantially beyond the normal removal point of 2/32″ of remaining tread depth, and also that none of the tires showed wear into its steel fabric. He stated that all of the truck’s tires retained visible grooves in the tread area. (Id., Ex. 18.)

The trailer was owned by Hribar, who leased it to Farm Service. [FN12] (Def. Farm Service Rule 56.1 Stmt. ¶ 47.) Farm Service maintains all of its tractors and trailers regularly, whether owned or leased. (Id. ¶ 64.) It relies on its head mechanic Bryant Griffin, an experienced truck mechanic who is certified by the United States Department of Transportation, to perform federally-mandated inspections of tractors and trailers. (Id. ¶ 63.) Each trailer, including the one at issue in this case, is returned to the Farm Service terminal yard in Marengo, Illinois every two weeks for inspection and maintenance by Griffin. (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶¶ 3-4.) Griffin stated that he personally inspects, inter alia, each vehicle’s tires, brakes, lights and air suspensions . [FN13] (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶¶ 3-4.) Indeed, Griffin last inspected the trailer at issue in the instant case, including its tires, on May 28, 2002, less than two weeks prior to the accident. (Def. Farm Service Rule 56.1 Stmt. ¶ 66; Def. Farm Service Affm., Ex. 13 ¶ 5.) He “aired up” the tires, but did not find them in need of replacement at that time. (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶¶ 12-13.) Moreover, Griffin performed a full federal inspection of the trailer on April 8, 2002, completed the required report and certified that it, including the tires, passed inspection in accordance with 49 C.F.R. § 396. [FN14] (Def. Farm Service Rule 56.1 Stmt. ¶ 65; Def. Farm Service Affm., Ex. 13 ¶ 12.) After the accident, Hribar repaired the trailer and leased it to another customer, although we note that the record remains unclear as to whether the tires at issue were changed prior to the subsequent lease. (Pl. Rule 56.1 Stmt. ¶ 11; Pl. Affm., Ex. O at 22-36, 52.)

FN12. Defendant Hribar delivered the trailer at issue to Farm Service on February 16, 2001, and did not regain possession of the trailer until after the accident in June 2002. Prior to delivery, Hribar had inspected the trailer and its tires on February 15, 2001 and found them to be in good condition. After delivery, the lease agreement required Farm Service to perform the mandatory annual inspection, or to return the trailer to Hribar who would do the inspection at no charge to Farm Service. The lease agreement also required Hribar to provide tires for the trailer, but Farm Service was responsible for actually changing and repairing the tires. Additionally, an oral agreement between Farm Service and Hribar required that only new and not recapped tires would be used for replacements. (Def. Hribar Rule 56.1 Stmt. ¶¶ 10-17; Def. Hribar Affm., Exs. B at 16, D ¶ 2, F at 17, G at 38, H.)

FN13. Griffin stated that “if a tire on a tractor or trailer has insufficient tread, I replace the tire. I do not knowingly allow any vehicle to leave the Farm Service yard if it is not in the proper condition as required by the United States Department of Transportation.” (Def. Farm Service Affm., Ex. 13 ¶ 3.)

FN14. The Department of Transportation’s inspection requirements are prescribed under 49 C.F.R. § 396. With respect to inspections performed pursuant to that chapter, the minimum safety requirements for tires are prescribed by 49 C.F.R. § 393.75, which provides that “[n]o motor vehicle shall be operated on any tire that (1) has body ply or belt material exposed through the tread or sidewall, (2) has any tread or sidewall separation, (3) is flat or has an audible leak, or (4) has a cut to the extent that the ply or belt material is exposed.” 49 C.F.R. § 393.75(a). Tires on the “front wheels of a bus, truck, or truck tractor shall have a tread groove pattern depth of at least 4/32 of an inch when measured at any point on a major tread groove. The measurements shall not be made where tie bars, humps, or fillets are located.” 49 C.F.R. § 393.75(b). Other tires, such as those on the trailer at issue in the instant case, “shall have a tread groove pattern depth of at least 2/32 of an inch when measured in a major tread groove. The measurement shall not be made where tie bars, humps or fillets are located.” 49 C.F.R. § 393.75(c).

DISCUSSION

I. Summary Judgment Standard

Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson, 477 U.S. at 247- 50. The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson, 477 U.S. at 248. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See id. at 255. To defeat summary judgment, the nonmovant must go beyond the pleadings and “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court’s role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994).

II. New York Law Re: Punitive Damages

We conclude that, even resolving all ambiguities and drawing all permissible inferences in her favor, under well established principles of New York law, [FN15] plaintiff has not offered sufficient evidence to sustain a reasonable jury verdict awarding her punitive damages. Indeed, “[t]he standard for an award of punitive damages in New York is a demanding one. Plaintiff must show the defendant’s conduct to be ‘so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others’ and that the conduct demonstrates a ‘high degree of moral culpability.” ‘ West v. Goodyear Tire & Rubber Co., 973 F.Supp. 385, 387 (S.D.N.Y.1997) (citing Rinaldo v. Mashayekhi, 185 A.D.2d 435, 585 N.Y.S.2d 615 (3d Dep’t 1992)). Indeed, “New York courts have used a variety of phrases to describe the ‘moral culpability’ that will support punitive damages for nonintentional torts including ‘utter recklessness,’ Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282, 296 (1872); ‘reckless and of a criminal nature, and clearly established,’ Cleghorn v. New York Cent. & H.R.R.R., 56 N.Y. 44, 48 (1874); ‘wanton or malicious, or gross and outrageous,’ or ‘a design to oppress and injure,’ Powers v. Manhattan Ry., 120 N.Y. 178, 182, 24 N.E. 295 (1890); ‘conscious indifference to the effect of his acts,’ Gostkowski v. Roman Catholic Church of the Sacred Hearts of Jesus & Mary, 262 N.Y. 320, 323, 186 N.E. 798 (1933); action ‘committed recklessly or wantonly, i.e., without regard to the rights of the plaintiff, or of people in general,’ Soucy v. Greyhound Corp., 27 A.D.2d 112, 276 N.Y.S.2d 173, 175 (3d Dep’t 1967).” West, 973 F.Supp. at 387. Indeed, as Judge Owen of the Southern District of New York observed in West, in New York, “even where there is gross negligence, punitive damages are awarded in singularly rare cases such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public.” Id. (citing Karen S. v. Streitferdt, 172 A.D.2d 440, 568 N.Y.S.2d 946, 947 (1st Dep’t 1991) (citations omitted, internal quotation marks omitted)). Indeed, the Southern District has held that a plaintiff seeking punitive damages in New York must prove the existence of these factors by a preponderance of the evidence. See Greenbaum v. Svenska Handelsbanken, NY, 979 F.Supp. 973, 982-83 (S.D.N.Y.1997) (identifying and resolving conflicting standards for the punitive damages burden of proof).

FN15. “A federal court sitting in diversity must apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir.1989)…. In the instant case, both parties have assumed that New York law governs, as evidenced, for example, by reliance on New York law to support their respective contentions. [Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 137 (2d Cir.1991) ]. See also Walter E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50, 52 (2d Cir.1984) (under New York law, “in the absence of a strong countervailing public policy, the parties to litigation may consent by their conduct to the law to be applied.”); M.H. Segan Ltd. P’ship v. Hasbro, Inc., 924 F.Supp. 512, 522 (S.D.N.Y.1996) (same). We likewise assume that New York law governs this dispute.” Coastal Aviation, Inc. v. Commander Aircraft Co., 937 F.Supp. 1051, 1059-60 (S.D.N.Y.1996) (Conner, J.), aff’d, 108 F.3d 1369 (2d Cir.1997).

III. Claims for Punitive Damages Against Farm Service and Jones

We first consider plaintiff’s claims for punitive damages against Farm Service and Jones. Defendants contend that plaintiff has, as a matter of law, failed to establish that they acted with the degree of moral culpability requisite for the imposition of punitive damages, and that she has at most proven their ordinary negligence. (Def. Farm Service Mem. Supp. Partial Summ. J. at 15-16.) Indeed, they cite Farm Service’s regular maintenance program, Jones’s appropriate experience and qualifications for operating the tractor- trailer and Jones’s conduct in attempting to avoid the accident by crashing the tractor into a guardrail as evidence of their lack of moral culpability. (Id. at 15-16.) Plaintiff, in response, claims that defendants were aware of the tires’ condition because of their inspections and that it was reckless to put the trailer on the road with worn tires. (Pl. Mem. Opp. Partial Summ. J. at 6-7.) Plaintiff also cites the unreasonable speed ticket given to Jones after the accident, and claims that it was wanton and reckless for Farm Service to employ him and allow him to drive the truck in light of his driving record, which plaintiff claims demonstrates Jones’s “disregard for public safety and applicable rules and regulations.” See also supra note 3. (Pl. Mem. Opp. Partial Summ. J. at 8-11.) We agree with defendants, and we conclude as a matter of law that their actions do not evidence the degree of recklessness and wantonness requisite for an award of punitive damages. [FN16]

FN16. Plaintiff devotes a large section of her brief to an attack on Farm Service’s hiring practices, namely claiming that it wantonly and recklessly failed to investigate Jones’s driving record, as required by Department of Transportation regulations, prior to and during the course of his employment as a Farm Service driver. (Pl. Mem. Opp. Partial Summ. J. at 9-15.) Defendants claim in response that this is an alternate theory of liability that is superfluous and prejudicial because Farm Service remains vicariously liable for compensatory damages incurred as a result of Jones’s ordinary negligence. (Def. Farm Service Reply Mem. Supp. Partial Summ J.at 8-9.) Plaintiff’s complaint, however, alleges clearly that Farm Service’s hiring of and entrustment of a truck to Jones were wanton and reckless. (Complt.¶¶ 44-45.) We, therefore, address these claims because “[g]enerally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee’s negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention…. This is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training…. [A]n exception exists to this general principle where the injured plaintiff is seeking punitive damages from the employer based on alleged gross negligence in the hiring or retention of the employee.” Karoon v. New York City Transit Authority, 241 A.D.2d 323, 324, 659 N.Y.S.2d 27 (1st Dep’t 1997) (citations omitted).

Beyond the general hornbook principles discussed supra, a brief review of the cases addressing when punitive damages are warranted in the context of motor vehicle accidents is instructive because it illuminates just how truly wanton and outrageous a defendant’s conduct must be to justify their imposition. We begin with Soucy, which warrants discussion because it is heavily cited by all parties. In Soucy, the Appellate Division, Third Department affirmed the Supreme Court’s order allowing the plaintiff leave to file an amended complaint with an added claim seeking exemplary, or punitive, damages. 27 A.D.2d at 113. Soucy arose out of a motor vehicle accident in which a bus between Albany and New York rolled over on the New York Thruway. Id. at 112. The plaintiffs alleged that the bus was old, and was pressed into service for the trip when the regularly scheduled bus was filled. Id. Indeed, the plaintiffs’ allegations in Soucy presented a grim picture; they alleged that the bus had over 600,000 miles on the odometer, that its tires were so worn that the fabric was exposed, that it was speeding, that the clutch and gear shift were defective to the point that the bus could not be operated in reverse gear and that it did not have functioning windshield wipers. Id. at 112-13. The Appellate Division held that these factual allegations, if proven, would create a jury question as to whether the requisite wantonness and recklessness existed to justify the imposition of punitive damages, particularly in light of the bus company’s status as a common carrier, with the accompanying highest duty of care that it owed to its passengers. Id. at 113. Thus, on the basis of these facts, the court affirmed the trial court’s order allowing the plaintiffs to amend their complaint and seek exemplary damages.

Potts v. Benjamin, 882 F.2d 1320, 1326-27 (8th Cir.1989), is another example of the truly wanton and outrageous conduct that justifies the rare imposition of punitive damages. Potts was a case wherein a tractor-trailer truck had two other trucks “piggybacked” onto it, and that truck ultimately collided with cars on an interstate highway, injuring many people and killing a child. Id. at 1321. The Eighth Circuit concluded that sufficient evidence existed to warrant sending the plaintiffs’ punitive damage claims to the jury under Arkansas law, noting that there was evidence that the defendants, who included the seller of the truck, had “knowingly rendered the brakes on the two ‘piggy-backed’ trucks inoperative.” Id. at 1327. The Eighth Circuit also noted that one of the defendants had stated expressly before the jury that he felt no personal responsibility for the safety of the public when he put a truck on the road. Id. at 1327 n.10. The court concluded that “[t]he jury was entitled to find that in these circumstances defendants knew or ought to have known that their placing the three-truck unit onto an interstate freeway system is conduct that will naturally and probably result in injury when, as happened here, the driver requires maximum braking power in the face of a hazard of the road, and that they nevertheless did so with reckless disregard for the consequences.” Id. at 1327. Thus, it distinguished the case from another truck accident wherein the trucking company had a regular inspection policy and affirmed the judgment of the district court awarding punitive damages to the plaintiffs. See also Austin v. C & L Trucking, Inc., 610 F.Supp. 465, 472-73 (D.Nev.1985) (holding in truck accident case that there was sufficient evidence to support a jury verdict awarding punitive damages when the driver knowingly drove a tractor-trailer with defective brakes).

Another illustrative pair of cases comes from Indiana. In Purnick v. C.R. England, Inc., 269 F.3d 851, 852-54 (7th Cir.2001), a tractor-trailer driver rear-ended the plaintiff’s car. Id . at 852. Pursuant to the relevant federal regulations, truck drivers may not spend any more than ten continuous hours on duty; the driver was approaching his tenth hour. Id. The evidence at trial showed that the driver had falsified his written trip logs and had driven beyond the limit several times in the week preceding the accident; he admitted that he was ” ‘mesmerized’ by the road [at the time of the accident], did not brake until after impact, and could not recall when he first saw the vehicle.” Id. The district court granted the defendants’ motion to dismiss the plaintiff’s punitive damages claim, and the Seventh Circuit affirmed, concluding that under Indiana’s punitive damages standard, which is similar to that of New York, [FN17] “[e]ven assuming that [plaintiff] has shown that [the driver] falsified his logs, drove beyond the ten-hour limit several times in the week preceding the crash and was fatigued when he hit her car, she presents no evidence that Belgrade actually knew that his misconduct would probably result in injury.” Id. at 853.

FN17. “A court will impose punitive damages under Indiana law if a defendant knew of, but consciously disregarded, the likely injurious consequences of his course of conduct.” Purnick, 269 F.3d at 853-54 (internal quotation marks omitted). The Court is aware, however, that Indiana imposes a higher evidentiary burden than New York’s preponderance of the evidence standard, and requires the plaintiff to prove her entitlement to punitive damages by “clear and convincing evidence that the defendants subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.” Id. at 854 (internal quotation marks omitted); see also Greenbaum, 979 F.Supp. at 982-83 (New York burden of proof).

Another instructive case from Indiana is Wanke v. Lynn’s Transp. Co., 836 F.Supp. 587 (N.D.Ind.1993), another truck accident, wherein the district court granted the defendants’ motion for partial summary judgment and dismissed the plaintiff’s claim for punitive damages. Id. at 606. In Wanke, the defendant trucking company had: (1) failed to inquire about the driver’s record (which showed multiple suspensions); (2) failed to follow its own policy by hiring a less experienced driver; (3) falsely certified to the Department of Transportation that the driver had taken a driving test, and also helped the driver cheat on the required written test; and (4) cancelled the driver’s drug test immediately after his accident, even though he was acting strangely. Id. at 601-05. Moreover, the defendant driver had been speeding by entering a curve in a 35 mile-per-hour zone at 60 miles per hour. Id. at 605. Nevertheless, the court concluded that these factors, even if taken as true, did not even in concert “constitute clear and convincing evidence of heedless indifference,” and granted the defendants’ motion for partial summary judgment on the issue of punitive damages. Id.

Finally, New York’s treatment of a driver’s intoxication with respect to punitive damages is instructive because it demonstrates just how high the punitive damages threshold is. Although driving while intoxicated by itself constitutes a crime, and thus seemingly would satisfy the requirement that the defendant’s actions be “reckless and of a criminal nature, and clearly established,” Cleghorn, 56 N.Y. at 48, this is not the case. In New York, it is well established that “[e]vidence that a defendant was driving while intoxicated will not by itself justify the imposition of punitive damages.” Parkhill v. Cleary, 305 A.D.2d 1088, 1090, 759 N.Y.S.2d 262 (4th Dep’t 2003). The requisite showing of “wanton or reckless conduct” requires more than intoxication; the plaintiff must prove conduct of that nature, in addition to intoxication, in order to present a jury question. Id. (concluding that defendant’s prior DWI conviction and conviction arising out of that accident, as well as the fact that he was speeding and passed through a stop sign when he collided with plaintiff’s vehicle, created an “issue of fact whether defendant’s conduct was so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others” (internal quotation marks omitted)); see also Arumugam v. Smith, 277 A.D.2d 979, 716 N.Y.S.2d 518 (4th Dep’t 2000) (holding that trial court properly denied the defendant’s partial summary judgment motion because his driving at an excessive speed while intoxicated presented a question of fact for the jury on the plaintiff’s punitive damages claim). In any event, we view the proposition that the dangerous and socially abhorrent act of driving while intoxicated does not, by itself, justify the imposition of punitive damages as illustrative of the extraordinarily high barrier that the plaintiff in the instant case must surmount in order to present this claim to the jury.

Viewed in light of the foregoing cases, we conclude that the conduct of Farm Service and Jones does not, as a matter of law, rise to the level of wantonness and moral culpability required for the imposition of punitive damages. First and foremost, the trailer in the instant case, even with its worn tires, does not approach the dangerous level of decrepitude exhibited by the bus in the Soucy case; indeed, the worn tires on the trailer have visible, although shallow, tread grooves, while the Soucy bus’s tires were worn entirely to the fabric. Moreover, as defendants point out, before and during his employment with Farm Service, Jones’s driving record, while not pristine, was nevertheless devoid of accidents and reckless driving convictions. Furthermore, plaintiff has not presented evidence of wantonness rising to the level of Potts and Austin, wherein the defendants knowingly operated tractor-trailers with defective and plainly inadequate brakes. Given the high degree of wantonness, malice and conscious disregard for the rights and safety of others needed for the imposition of punitive damages in New York, and the fact that we cannot say that defendants’ conduct rises even to the level of recklessness and conscious disregard for public safety found in the aforementioned Indiana cases wherein punitive damages were not awarded, we conclude that the instant case is not one of the “singularly rare” situations wherein punitive damages are legally sustainable. West, 973 F.Supp. at 387.

IV. Claims for Punitive Damages Against Hribar

We next consider plaintiff’s claim for punitive damages against defendant Hribar, the owner of the trailer. Hribar, relying primarily on Ingle v. Mark, 58 Misc.2d 895, 896, 296 N.Y.S.2d 664 (Sup.Ct. Queens Co.1969), claims that N.Y. VEH. & TRAFF. LAW § 388, which imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his permission, does not provide a basis for an award of punitive damages. (Def. Hribar Mem. Supp. Partial Summ. J. at 7-8.) Hribar also contends that the evidence establishes that it did not commit any act of negligence, let alone the “outrageous” conduct needed for the imposition of punitive damages. (Id. at 16-17.) In response, plaintiff claims that Hribar ratified the use of unsafe tires on the trailer after the accident and recklessly failed to inspect the trailer or determine whether Jones was a fit driver, as was provided under its contract with Farm Service. (Pl. Mem. Opp. Partial Summ. J. at 4, 15-17.) We agree with Hribar, and grant its motion for partial summary judgment dismissing plaintiff’s punitive damages claims against it.

We conclude that N.Y. VEH. & TRAFF. LAW § 388 does not subject Hribar to punitive damages for any conduct by its lessee Farm Service, or the lessee’s employee Jones, because Ingle remains good law. See Poulard v. Papamihlopoulos, 254 A.D.2d 266, 268, 678 N.Y.S.2d 383 (2d Dep’t 1998) (citing Ingle for the proposition that “because Papamihlopoulos cannot be held liable for punitive damages based on Papas’s operation of her vehicle, the plaintiff’s motion [to amend her complaint to add a punitive damages claim] should have been denied.”). Thus, “the owner of the vehicle is under no liability for the operator’s negligence save that which is imposed on him by the provisions of the Vehicle and Traffic Law. Since the statute is in derogation of the common law, it may not be presumed to make any innovation upon the common law further than is required by the mischief to be remedied. If the Legislature had intended to subject an owner to liability for punitive damages because of the driver’s conduct, it would have included such a provision in said statute.” Ingle, 58 Misc.2d at 896 (internal quotation marks omitted). We, therefore, follow Ingle and the more recent Poulard decision, and we conclude that N.Y. VEH. & TRAFF. LAW § 388 does not subject Hribar to punitive damages for any conduct by its lessee Farm Service, or the lessee’s employee, Jones. Accordingly, we now turn to plaintiff’s claims of actual recklessness on the part of Hribar.

We first address plaintiff’s claim that Hribar’s “reckless post-accident ratification of the use of the unsafe tires on the trailer warrants an award of punitive damages.” (Pl. Mem. Opp. Partial Summ. J. at 15.) Even if we assume without deciding that this allegation is true, it is irrelevant for the purpose of determining whether punitive damages are warranted. See Boykin v. Mora, 274 A.D.2d 441, 442, 711 N.Y.S.2d 904 (2d Dep’t 2000) (holding that defendant’s flight from accident scene may not be considered in support of punitive damages because while “it might be considered reprehensible, such conduct did not proximately cause any of the plaintiff’s injuries”); Camillo v. Geer, 185 A.D.2d 192, 194, 587 N.Y.S.2d 306 (1st Dep’t 1992) (holding in products liability action, “it was clearly improper for the trial court to allow plaintiffs to argue, and the jury to consider, evidence of FMC’s post-accident recall of the aluminum sheaves and the alleged inadequacies of that recall in determining whether defendant’s conduct was so outrageously culpable as to warrant the imposition of punitive damages.”). We, therefore, conclude that Hribar’s post-accident actions with respect to the trailer are irrelevant for the purpose of determining whether its conduct warrants the imposition of punitive damages.

We next turn to plaintiff’s claims that Hribar recklessly failed to investigate Jones’s qualifications to operate a truck as was provided under the contract with Farm Service, [FN18] and that Hribar recklessly failed to inspect or order the annual inspection of the trailer until three months after it was due. (Pl. Mem. Opp. Partial Summ. J. at 16.) Plaintiff also claims that Hribar’s decision to not check Griffin’s qualifications before allowing Farm Service to inspect the truck was reckless and that the inspection that Hribar performed on the truck in 2001 prior to delivery was reckless because it contained subjective terms such as “OK” and “good,” rather than actual tire measurements. (Id. at 16-17.) We conclude that when viewed in light of the existing case law governing the imposition of punitive damages in the context of motor vehicle accidents, plaintiff’s allegations with respect to Hribar, taken as true, simply do not meet the high degree of wantonness and conscious disregard for the rights of others that is required. The evidence offered in support of plaintiff’s claims proves at most that Hribar was negligent in certain of its business practices. As a matter of law, it fails to prove that Hribar undertook those actions with the requisite high degree of moral culpability; that is, with malice, utter wanton negligence and with a conscious disregard of the harm that its actions would cause to others. We therefore grant Hribar’s motion for partial summary judgment and we dismiss plaintiff’s claim for punitive damages against it.

FN18. The relevant contract provision provides: “DRIVERS. Customer shall cause each vehicle to be operated solely by a safe and careful licensed driver, at least 25 years of age and selected by and under the order directions, employment, pay and control of the Customer. The Customer shall cooperate with Hribar in making such drivers operate such vehicle with reasonable care. Upon written complaint from Hribar specifying any reckless, careless, or abusive handling of any vehicles leased hereunder, Customer shall remove such driver or drivers, substitute careful and safe drivers as soon as is reasonably possible.” (Def. Hribar Affm., Ex. D ¶ 11.)

CONCLUSION

For all of the foregoing reasons, we grant defendants’ motions for partial summary judgment dismissing plaintiff’s punitive damages claims.

SO ORDERED.

Supreme Court of California.

John R. MacKINNON et al., Plaintiffs and Appellants,

v.

TRUCK INSURANCE EXCHANGE, Defendant and Respondent.

Aug. 14, 2003.

MORENO, J.

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, 54 Cal.Rptr. 104, 419 P.2d 168), 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.

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 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. 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, 36 Cal.Rptr.2d 537, 885 P.2d 950.) 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.

The meaning of the current pollution exclusion has not received wide attention in this state. [FN1] 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 traditional environmental pollution, and that the clause is as unambiguous in excluding the former as the latter. [FN2]

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, 177 Ill.2d 473, 227 Ill.Dec. 149, 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…..

“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 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.” [FN3]…. 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, 227 Ill.Dec. 149, 687 N.E.2d at pp. 79-81, fn. omitted, italics added; see also Jackson Tp., etc. v. Hartford Acc. & Indem. (1982) 186 N.J.Super. 156, 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 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, 274 Cal.Rptr. 820, 799 P.2d 1253 (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).)

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, 227 Ill.Dec. 149, 687 N.E.2d at p. 81; accord, Doerr v. Mobil Oil Corp., supra, 774 So.2d at pp. 126-128; Sullins v. Allstate Insurance Co., supra, 340 Md. 503, 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 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 Educational 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. (West American Ins. Co. v. Tufco Flooring (1991) 104 N.C.App. 312, 409 S.E.2d 692, 699-700 (Tufco Flooring ), disapproved on other grounds in Gaston County Dyeing Mach. Co. v. Northfield Ins. Co. (2000) 351 N.C. 293, 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; Continental Casualty Co. v. Rapid-American Corp. (N.Y.1993) 80 N.Y.2d 640, 654, 593 N.Y.S.2d 966, 609 N.E.2d 506 [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 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.)

C. 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, 44 Cal.Rptr.2d 370, 900 P.2d 619 (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 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, 44 Cal.Rptr.2d 370, 900 P.2d 619.)

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, 221 Cal.Rptr. 509, 710 P.2d 309.) “[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, 110 Cal.Rptr. 1, 514 P.2d 953, 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 Insurance Co., supra, 65 Cal.2d at pp. 272-273, 54 Cal.Rptr. 104, 419 P.2d 168.) [FN4] 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, 77 Cal.Rptr.2d 537, 959 P.2d 1213.)

D. 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, 54 Cal.Rptr. 104, 419 P.2d 168; Ponder v. Blue Cross of Southern California, supra, 145 Cal.App.3d at pp. 720-721, 193 Cal.Rptr. 632.) 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 of similar language that it “connotes general protection for alleged bodily injury caused by the insured.” (Gray v. Zurich Ins. Co., supra, 65 Cal.2d at p. 272, 54 Cal.Rptr. 104, 419 P.2d 168.) 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, 54 Cal.Rptr. 104, 419 P.2d 168.) 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, 54 Cal.Rptr. 104, 419 P.2d 168.)

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, 10 Cal.Rptr.2d 538, 833 P.2d 545.) Rather, a court properly refusing to make ” ‘a fortress out of the dictionary,’ ” (Russian Hill Improvement Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 34, 42, 56 Cal.Rptr. 672, 423 P.2d 824, 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, 274 Cal.Rptr. 820, 799 P.2d 1253.)

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 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 “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 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 Allnews [FN5] 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. [FN6]

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 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, 227 Ill.Dec. 149, 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, 227 Ill.Dec. 149, 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 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, 78 Cal.Rptr.2d 429 [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, 42 Cal.Rptr.2d 324, 913 P.2d 878.)

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 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, 211 Wis.2d 224, 564 N.W.2d 728, that injury from “sick building syndrome” caused by excessive accumulation 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. [FN7]

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, 44 Cal.Rptr.2d 370, 900 P.2d 619.) “[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, 110 Cal.Rptr. 1, 514 P.2d 953, 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, 110 Cal.Rptr. 1, 514 P.2d 953.)

III. DISPOSITION

The judgment of the Court of Appeal affirming summary judgment on Truck Insurance’s behalf is reversed.

WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, CHIN, and BROWN, JJ.

FN1. 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, 42 Cal.Rptr.2d 101 [groundwater contamination from petroleum plant]; Titan Corp. v. Aetna Casualty & Surety Co. (1994) 22 Cal.App.4th 457, 27 Cal.Rptr.2d 476 [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.

FN2. 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 (1997) 177 Ill.2d 473, 227 Ill.Dec. 149, 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. (1997) 261 Kan. 806, 934 P.2d 65, 78-79 [property losses sustained from toxic smoke emitted from a fire not excluded]; Doerr v. Mobil Oil Corp. (La.2000) 774 So.2d 119, 126- 128 [accidental discharge of hydrocarbons from oil refinery not excluded]; Sullins v. Allstate Ins. Co. (1995) 340 Md. 503, 667 A.2d 617, 624 [injuries sustained from the ingestion of lead paint chips not excluded]; Western Alliance Ins. Co. v. Gill (1997) 426 Mass. 115, 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. (2000) 95 N.Y.2d 334, 717 N.Y.S.2d 75, 740 N.E.2d 220, 223 [injuries sustained by a tenant from lead poisoning not excluded]; Andersen v. Highland House Co. (2001) 93 Ohio St.3d 547, 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 (2001) 567 Pa. 98, 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. (1999) 294 Mont. 210, 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. (1999) 557 Pa. 595, 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].)

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. (1999) 228 Wis.2d 106, 596 N.W.2d 429, 448 (Peace ) [tenants ingestion of lead paint chips excluded]; Donaldson v. Urban Land Interests, Inc. (1997) 211 Wis.2d 224, 564 N.W.2d 728, 733 (Donaldson ) [carbon dioxide leak in apartment building not excluded].)

FN3. 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.”

FN4. 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, 193 Cal.Rptr. 632, 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.

FN5. 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.)

FN6. 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 “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).

FN7. 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, 77 Cal.Rptr.2d 107, 959 P.2d 265.) The purpose of eliminating “into or upon land” is unclear and by no means unambiguously supports the insurer’s position in the present case.