Submitted November 19, 2013.
Appeal from United States District Court for the District of Nebraska - Omaha.
For Church Mutual Insurance Company, Plaintiff - Appellee: Anthony James Alt, Christian Andrew Preus, Meagher & Geer, Minneapolis, MN; James J. Frost, Mcgrath & North, Omaha, NE.
For Cheryl S. Green, Cheryl S. Green as Personal Representative of the Estate of John R. Green, Defendants - Appellants: Sheila A. Bentzen, Mark R. Richardson, Peter C. Wegman, Rembolt & Ludtke, Lincoln, NE; Scott D. Grafton, Svehla & Barrows, York, NE.
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
WOLLMAN, Circuit Judge.
Cheryl Green and the Estate of John Green (the Greens) appeal from the district court's grant of summary judgment in favor of Church Mutual Insurance Company (Church Mutual). The district court concluded that coverage for the injuries the Greens suffered because of their exposure to carbon monoxide was precluded by pollution exclusions contained in the relevant policies. The district court also held that Church Mutual was not estopped from denying coverage based on those exclusions. We affirm.
John Green was the pastor of Clay Center Christian Church (the Church). He and his wife, Cheryl, resided at the Church's parsonage. On November 19, 2009, the parsonage's heating system malfunctioned
and released carbon monoxide throughout the residence. John died as a result of his exposure to the carbon monoxide. Cheryl suffered bodily injuries.
The Church had two policies issued by Church Mutual that are relevant to this appeal: a multi-peril policy and an umbrella policy. The multi-peril policy contained a pollution exclusion that excluded coverage for:
g. (1) " Bodily injury" or " property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants:
(a) At or from any premises, site, or location which is or was at any time owned or occupied by, or rented or loaned to, any insured[.]
The umbrella policy included identical language. " Pollutants" are defined under both policies as " any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed."
Church Mutual was notified of John's death and Cheryl's injuries on November 20, 2009. That same day, Church Mutual retained attorney Jerald Rauterkus. The parties dispute the purpose for which Rauterkus was hired. Church Mutual contends that Rauterkus's role was limited to conducting a cause-and-origin investigation of the carbon monoxide leak and assisting the Church in matters of communication during the course of the investigation. The Greens assert that Rauterkus was hired to defend the Church against liability claims.
The parsonage's heating system was inspected and tested on three separate occasions from November 2009 to April 2010. The results of the inspections were inconclusive. Although it was evident that the carbon monoxide had been emitted from the parsonage's heating system, the exact source and cause of the carbon monoxide leak were not ...