ELR Citation: ELR 20935
No(s). CV 185-248 (S.D. Ga. Dec 7, 1990)

The court holds that a landowner may be indemnified under a comprehensive general liability policy for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act. The court first holds that the landowner's claim is not barred by the policy's owned property exclusion. Although Georgia law controls the case, the property is subject to Florida law because it is located in Florida. Under Florida law, the owned property exclusion does not apply because the landowner does not own the groundwater beneath his land or the water and land surrounding his property. Moreover, the threat of damage to surrounding land and water justified cleaning up the site. The court rules that whether a discharge is "sudden and accidental" depends on whether the insured expected or intended the release. Because a jury could reasonably conclude that the insured did not expect or intend the release of hazardous substances, summary judgment is inappropriate. The court next holds that it is bound to follow the precedent set by Georgia state courts, which provides that a liability policy that provides coverage for damages covers response costs. Finally, the court grants plaintiff's motion to amend the complaint to seek recovery of attorney fees and punitive damages for defendant insurer's alleged bad-faith refusal to pay plaintiff's claim.

[A previous decision in this litigation is published at 20 ELR 20373.]

Counsel for Plaintiff
David E. Hudson
Hull, Towill, Norman & Barrett
Trust Company Bank Bldg., 7th Fl., P.O. Box 1564, Augusta GA 30913
(404) 722-4481

Counsel for Defendant
Michael R. Johnson, Linda B. Foster, John W. Winborne
Neely & Player
Marquis Two, Ste. 2600, 285 Peachtree Center Ave., Atlanta GA 30303-1270
(404) 681-2600

Robert L. Allgood
Allgood & Daniel
The Brahe House, 456 Telfair St., P.O. Box 1545, Augusta GA 30903-1545
(404) 724-3876