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Brownlee v. Liberty Mutual Fire Insurance Co.

Court of Appeals of Maryland

December 18, 2017

QUANTA BROWNLEE, ET AL.
v.
LIBERTY MUTUAL FIRE INSURANCE CO. ET AL.

          Argued: September 12, 2017

         United States District Court for the District of Maryland Case No. Civil No. JFM-16-3177.

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          HOTTEN, J.

         This Court has been asked to answer a certified question of law by the United States District Court for the District of Maryland. The Maryland Uniform Certification of Questions of Law Act, Maryland Code, §§ 12-601, 12-613 of the Courts and Judicial Proceedings Article ("CJ") empowers this Court to "answer a question of law certified to it by a court of the United States…if the answer may be determinative of an issue in a pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State." CJ § 12-603.

         The United States District Court for the District of Maryland has asked us to answer the following question:

Would application of Georgia's interpretation of the pollution exclusion contained in the insurance policy issued by Liberty Mutual Insurance Company to the Salvation Army as excluding coverage for bodily injuries resulting from the ingestion of lead-based paint violate Maryland public policy?

         We answer this question in the negative. For reasons to be explained, we hold that application of Georgia law concerning the pollution exclusion in the policy under the principle of lex loci contractus does not violate Maryland public policy.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         Quanta Brownlee, Jamal Brownlee, Shakeira Jones, Daquane[2] Jones, and De'Aunttae Jones (collectively "Appellants") were exposed to lead-based paint at a property, owned by the Salvation Army, located at 1114 North Calvert Street in Baltimore City, Maryland.

         In 1995, Appellants Quanta Brownlee and Jamal Brownlee resided at the property, which contained deteriorated lead-based paint. Appellants sustained permanent brain damage and elevated blood lead levels as a result of the exposure to lead-based paint. In 2001, Shakeira Jones, Daquane Jones, and De'Aunttae Jones also resided at the property. Shakeira Jones, Daquane Jones, and De'Aunttae Jones also sustained permanent brain damage and elevated blood lead levels as a result of the exposure to lead-based paint.

         Appellants named the Salvation Army as a defendant in their lead-based paint related tort claims in a complaint that is now pending in the United States District Court for the District of Maryland.[3] In addition to alleging that there was no insurance available in connection with Appellants' claim, the Salvation Army asserted that it was immune from liability on charitable immunity grounds, unless and until Liberty Mutual indemnified it as responsible for Appellants' injuries and damages. The parties do not dispute that Liberty Mutual issued comprehensive general liability insurance policies ("the Liberty Mutual insurance policies") to the Salvation Army, or that these policies were purchased in Georgia, and were effective from October 1, 1993 until October 1, 2001.

         Notably, the policies do not include lead-based paint exclusion provisions, but the policies do include pollution exclusion provisions. The pollution exclusion provision is written as such:

This insurance does not apply to: (f) Pollution
(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 ….

Complaint, Exhibit 4 at 82. "Pollutants" are defined in each of the Liberty Mutual insurance policies as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemical or waste." Id. at 83.

         Appellants seek affirmation from this Court that Liberty Mutual is obligated to indemnify the Salvation Army and defend against claims brought by the Appellants. Appellee Liberty Mutual asserts that it is under no obligation to indemnify and defend Appellee Salvation Army because: (1) the Liberty Mutual insurance policies were formed in Georgia, thus implicating the legal principle of lex loci contractus i.e., the law governing the contracts is the law of the place where the contract is formed, and (2) pursuant to Georgia law, the pollution exclusion provision in the insurance policies excluded coverage for bodily injuries resulting from exposure to lead-based paint.

         The Supreme Court of Georgia has held that bodily injuries allegedly resulting from the ingestion of lead-based paint are within the pollution exclusion. See Georgia Farm Bureau of Mut. Ins. Co. v. Smith, 298 Ga. 716, 784 S.E.2d 422 (2016). The language of the pollution exclusion clause in Georgia Farm is identical to the language of the pollution exclusion clause in the Liberty Mutual insurance policies.

         Liberty Mutual has moved to dismiss the complaint on the ground that Maryland courts follow the doctrine of lex loci contractus in choosing the applicable law, Cunningham v. Feinberg, 441 Md. 310, 326, 107 A.3d 1194, 1204 (2015); Allstate Ins. Co. v Hart, 327 Md. 526, 529, 611 A.2d 100, 101 (1992) and that, under Georgia law, the insurance policy does not cover claims for lead-based paint poisoning. To the contrary, Appellants contended in the federal district court that Maryland courts would not apply Georgia's interpretation of the pollution exclusion clause because it violates Maryland's public policy. The United States District Court for the District of Maryland asks us resolve which law applies, so that the federal court may decide the merits on Liberty Mutual's Motion to Dismiss. This Court must answer whether application of Georgia's decision in Georgia Farm violate Maryland's public policy.

         DISCUSSION

         I. Lex Loci Contractus

         It is not in dispute that the doctrine of lex loci contractus is applicable here. Both parties agree that lex loci contractus is the proper lens through which this Court should analyze their claims. Maryland has long recognized the doctrine of lex loci contractus. See De Sobry v. De Laistre, 2 H. & J. 191, 191 (1807) (applying the laws of the country where the terms of the contract were created). When this Court applies lex loci contractus, typically either the validity or enforceability of a contract is at issue. Cunningham, 411 Md. at 327-28, 107 A.3d at 1205. The "doctrine requires that, when determining the construction, validity, enforceability, or interpretation of a contract, we apply the law of the jurisdiction where the contract was made." Id. at 326, 107 A.3d at 1204. Therefore, the substantive application of the law to the contract between the parties is subject to the enforcement of the jurisdiction where the contract was formed. Id.

         The rule of lex loci contractus, however, has a narrow exception. Maryland law still governs when a contractual provision is contrary to a strong Maryland public policy. "Nevertheless, for Maryland public policy to override the lex loci contractus rule, the public policy must be very strong and not merely a situation in which Maryland law is different from the law of another jurisdiction." Hart, 327 Md. at 530, 611 A.2d at 102. See Lab. Corp. of Am. v. Hood, 395 Md. 608, 620, 911 A.2d 841, 848 (2006) (opining that the lex loci contractus principle is "not inflexible" and that it will not govern a contract provision that is against Maryland public policy) (internal citations omitted); Cunningham, 441 Md. at 337, 107 A.3d at 1211 (explaining that this Court has "long recognized an exception to the application of lex loci contractus: we refuse to apply the doctrine when doing so would be 'contrary to a strong public policy of this State[ ]'") (quoting Am. Motorists Ins. Co. v. ARTRA Grp., Inc., 338 Md. 560, 573, 659 A.2d 1295, 1301 (1995)); Bethlehem Steel Corp. v. G.C. Zarnas & Co., 304 Md. 183, 188-89, 498 A.2d 605, 608 (1985) (recognizing the choice of law rule which has been consistently recognized by this Court, "lex loci contractus does not apply to a contract provision which is against Maryland public policy[ ]"). Thus, absent a determination that Georgia's law violates a strong Maryland public policy, Georgia's law applies.

         II. Authority on Pollution Exclusion Clauses

         Both Appellants and Appellees agree that, under Georgia case law, the Liberty Mutual insurance policies in question do not cover claims for lead-based paint poisoning. Because the Liberty Mutual insurance policies were issued in Georgia, and the lex loci contractus doctrine is applicable, Georgia's law must be examined first. The Supreme Court of Georgia examined a pollution exclusion provision using identical language as the insurance contract currently before this Court. Georgia Farm, 298 Ga. at 717, 784 S.E.2d at 423. See Id. (defining a "pollutant" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste[ ]").

         In Georgia Farm, the plaintiff, a residential tenant, sued her landlord for injuries sustained when plaintiff's daughter allegedly ingested lead from deteriorating lead-based paint in the rented house. Id. The landlord insured the residence through a general commercial liability insurance policy issued by Georgia Farm Bureau Mutual Insurance Company ("Georgia Farm"). Following an insurance claim initiated by the landlord, Georgia Farm filed a declaratory judgment action against Plaintiff and the landlord. Georgia Farm argued that the daughter's lead-based poisoning injuries were not covered by the policy because of a pollution exclusion provision, thus discharging Georgia Farm's obligation to defend or indemnify the landlord in the lawsuit. The Supreme Court of Georgia held that lead present in paint "unambiguously qualifies as a pollutant and that the plain language of the policy's pollution exclusion clause" removed plaintiff's claims against her landlord from coverage. Id. at 721, 784 S.E.2d at 426. The Georgia Farm Court discussed this Court's analysis in Sullins v. Allstate Ins. Co. when reversing the Court of Appeals of Georgia's determination that Georgia Farm had a duty to defend the landlord. [4] Sullins v. Allstate Ins. Co, 340 Md. 503, 667 A.2d 617 (1995); Georgia Farm, 298 Ga. St 716, S.E.2d at 422 (2016); Smith v. Georgia Farm Bureau Mut. Ins. Co., 331 Ga.App. 780, 786, 771 S.E.2d 452, 457 (2015), cert. granted (July 6, 2015), rev'd, 298 Ga. 716, 784 S.E.2d 422 (2016), and vacated, 337 Ga.App. 300, 789 S.E.2d 193 (2016).

         In Sullins, we reviewed an insurance policy's pollution exclusion clause. 340 Md. at 509, 667 A.2d at 620. The insurance policy language at issue in Sullins differed from the language in Appellants' insurance policies. In Sullins, the Allstate Insurance Company ("Allstate") issued a Deluxe Homeowners Policy to Reverend D. Paul Sullins and Patricia H. Sullins. Id. at 506-07, 667 A.2d at 618. In Sullins' policy, under the heading "Losses We Do Not Cover, " the policy contained the following language:

We do not cover bodily injury or property damage which results in any manner from the discharge, dispersal, release, or escape of:
a) vapors, fumes, acids, toxic chemicals, toxic liquids or toxic gasses;
b) waste materials or other irritants, contaminants or pollutants.

Id. We determined that "contaminants" and "pollutants" are susceptible to two different interpretations by a lay person. Id. at 509, 667 A.2d at 620. One interpretation of the two terms could reasonably encompass lead-based paint, while another could refer to environmental contaminants or pollutants. Id. However, we noted that "[to] be sure that lead paint poisoning claims were excluded from coverage, [the insurer] could have included a provision…explicitly excluding such claims." Id. at 518 n.3, 667 A.2d at 624 n.3. The Sullins Court ruled that the policy language was ambiguous and did not remove the insurer's duty to defend the lead-based paint poisoning action. Id. at 518, 667 A.2d at 624.

         Georgia's intermediate appellate court, the Georgia Court of Appeals, cited Sullins for the proposition that if an insurer "had intended to exclude injuries caused by lead-based paint from coverage in the policy at issue in this case it was required, as the insurer that drafted the policy, to specifically exclude lead-based paint injuries from coverage." Smith, 331 Ga.App. at 785, 771 S.E.2d at 456 (footnote omitted) (internal citations omitted). Georgia's intermediate appellate court went on to explain that, as in Sullins, "an insured could reasonably have understood the provision at issue to exclude coverage for injury caused by certain forms of industrial pollution, but not coverage for injury allegedly caused by the presence of leaded materials in a private residence." Id. However, the Supreme Court of Georgia disagreed that the insurance policy terms at issue here created the same ambiguities. Georgia Farm, 298 Ga. at 716, 784 S.E.2d at 423. Like in Sullins, the Georgia Farm court considered that if "a policy provision is susceptible to more than one meaning, even if each meaning is logical and reasonable, the provision is ambiguous and….will be construed strictly against the insurer/drafter and in favor of the insured." Georgia Farm, 298 Ga. at 719, 784 S.E.2d at 424-25 (internal citations omitted). The Georgia Farm court determined that the pollution exclusion clause was unambiguous and held that the "policy contains an absolute pollution exclusion clause which precludes recovery for bodily injury or property damage resulting from exposure to any pollutant." Id. at 719, 784 S.E.2d at 425.

         Our decision in Sullins, and Georgia's application of the pollution exclusion clause in Georgia Farm can coexist. The law of our State and Georgia's law are not so contrary because the insurance policy terms at issue here, and the terms at issue in Sullins, are different. Sullins required us to interpret the pollution exclusion clause because the terms were undefined and ambiguous, and thus susceptible to multiple interpretations. That is not the case here. The Liberty Mutual insurance policies define 'Pollutants' as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemical or waste." See supra Complaint, Exhibit 4 at 83. The Sullins Court took issue with ascertaining the intention of the parties because the parties did not define the pollution exclusion's terms as they have here. Sullins, 340 Md. 503 at 514, 667 A.2d at 622. The Sullins Court was then forced to analyze the historical context and the parties' intentions to determine the contract's meaning. Id. However, lex loci contractus does not require us to interpret the terms of the Liberty Mutual insurance policies, or determine the intent of the parties, because Georgia's Court already has determined that is not a relevant line of analysis here. Georgia Farm, 298 Ga. at 720, 784 S.E.2d at 425.

         The Sullins Court was required to perform a full review of pollution exclusion clause history to ascertain the parties' intentions. Similarly to the Supreme Court of Georgia, we noted that insurance exclusion clauses in their infancy generally applied to accidental contamination. Sullins, 340 Md. at 513-15, 667 A.2d at 622-23; Georgia Farm, 298 Ga. at 719, 784 S.E.2d at 425. Both Sullins and Georgia Farm acknowledged that in the mid-1980s, the insurance industry adopted the "absolute pollution exclusion, " which denied coverage for bodily injury arising from pollutants. Sullins, 340 Md. at 514-15, 667 A.2d at 622; Georgia Farm, 298 Ga. at 719, 784 S.E.2d at 425. At this point, the discussion in Georgia Farm and Sullins diverges. Sullins decided that the insurance industry's absolute pollution exclusion, which denied coverage for "bodily injury or property damage arising out of the actual, alleged or threatened discharge, release, or escape of pollutants" and defined "pollutant" as "any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acids, alkalies, chemicals and waste[, ]" were environmental terms of art, and thus the parties intended environmental hazards, and not lead-based paint, to be excluded. Sullins, 340 Md. at 515, 667 A.2d at 622.

         Georgia Farm relied on its past decision in Reed v. Auto-Owners Ins. Co., 284 Ga. 286 667 S.E.2d 90 (2008), for the proposition that the Court should not "adopt an approach which considered the purpose and historical evolution of pollution exclusions before looking to the plain language of the clause itself." Georgia Farm, 298 Ga. at 720, 784 S.E.2d at 425. In Reed, the plaintiff claimed that she was poisoned by the release of carbon monoxide inside her rental home. Reed, 284 Ga. at 288, 667 S.E.2d at 92. The insurance policy's definition of "pollutant" in Reed is the same definition provided for in Georgia Farm, and the same definition included in the Liberty Mutual insurance policies at issue here. The Supreme Court of Georgia read that the plain language of the "pollutant" definition was "matter, in any state, acting as an 'irritant or contaminant[.]'" Georgia Farm, 298 Ga. at 720, 784 S.E.2d at 425 (quoting Reed, 284 Ga. at 288, 667 S.E.2d at 92). Specifically, the Court noted that focusing on extrinsic sources of interpretation is what leads to the ambiguity in the pollution exclusion clause where none exists. Georgia Farm, 298 Ga. at 721, 784 S.E.2d at 426.

         Maryland Courts similarly first apply the terms of the insurance contract itself. Litz v. State Farm Fire & Cas. Co., 346 Md. 217, 224, 695 A.2d 566, 569 (1997) (quoting Bausch & Lomb v. Utica Mutual, 330 Md. 758, 779, 625 A.2d 1021, 1031 (1993). Then, "[w]e construe insurance policies as a whole to determine the parties' intentions." Litz, 346 Md. at 224, 695 A.2d at 569 (internal citations omitted). The Georgia Farm court decided not to interpret the insurance contract's terms, and rather decided Georgia Farm on the narrower grounds of applying the contract's plain language. Georgia Farm, 298 Ga. at 720, 784 S.E.2d at 425. The Sullins Court was not afforded that luxury, because the term "pollutant" was not defined in the parties' contract. Had the term been defined, the Sullins Court may not have examined the historical context and come to a different conclusion, but that is not an issue for this Court to currently decide.

         The case law of Maryland and Georgia on pollution exclusion clauses is not so contrary to overcome lex loci contractus. Sullins required us to interpret the contract's language. We are not charged with such a task here. Rather, we are asked to answer the question of whether Maryland's current public policy is so contrary to Georgia's decision in Georgia Farm, which, even in light of our discussion in Sullins, is no. We have consistently held "that the lex loci contractus principle is not inflexible" and thus, Georgia Farm's holding will apply to Appellants' claims, unless the exception applies, because such a result would violate Maryland's public policy. Hood, 395 Md. at 620, 911 A.2d at 848. Because Georgia Farm did not interpret the terms that we determined had environmental implications, the two cases are not so at odds to override Georgia's law. To interpret Sullins to mean that Maryland's public policy strongly requires lead-based paint exclusions to be explicitly and unambiguously identified, sufficient to overcome lex loci contractus, would be inapposite to the express direction from the legislature and the precedent of this Court. See Maryland Code, § 19-704(c) of the Insurance Article (permitting insurers to include lead hazard coverage exclusions in insurance policies); Sullins, 340 Md. at 518, 667 A.2d at 624 (opining that "conflicting interpretations of the policy language in judicial opinions is not determinative[ ]"). For the lex loci contractus doctrine to be set aside, Maryland's public policy "must be very strong and not merely a situation in which Maryland law is different from the law of another jurisdiction." Cunningham, 441 Md. at 337-38, 107 A.3d at 1211. For reasons to be explained, Maryland's public policy is not contrary to Georgia Farm, thus Georgia's law applies.

         III. Maryland's Public Policy

         Appellants contend that Georgia's interpretation of the pollution exclusion provision should not apply because it would violate Maryland's public policy concerning the protection of victims of childhood lead-based paint poisoning. This Court has long recognized that declaration of the State's public policy is the function of the legislative branch of the government. Felder v. Butler, 292 Md. 174, 183, 438 A.2d 494, 499 (1981); see Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 36, 944 A.2d 1122, 1135 (2008) (commenting "[i]t is, after all, the General Assembly that sets the public policy of the State…."); Rausch v. Allstate Ins. Co., 388 Md. 690, 715, n. 13, 882 A.2d 801, 816, n. 13 (2005) (explaining the General Assembly that "sets the public policy of the State, especially economic and social policy[ ]"); Frey v. Frey, 298 Md. 552, 562, 471 A.2d 705, 710 (1984) (internal citations omitted) (opining that the "declaration of public policy is normally the function of the legislature, " and to evaluate the public policy we look to statutory provisions); Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 460, 456 A.2d 894, 903 (1983) (recognizing that the declaration of the public policy of Maryland is normally the function of the General Assembly).

         Demonstration of a strong public policy, sufficient to warrant an exception to application of another jurisdiction's law under lex loci contractus, is usually evidenced by explicit legislative action. Bethlehem Steel Corp. v. G.C. Zarnas & Co., 304 Md. 183, 190, 498 A.2d 605, 608 (1985). Even though evidence of Maryland's public policy may be found through explicit legislative determinations, "explicit legislative language [is] not required always in order to reach a conclusion that a Maryland Code provision represents strong public policy. On occasion, we have given some weight to evolving public policy." Cunningham, 441 Md. at 340, 107 A.3d at 1213. We now turn to examine Maryland's lead-based paint and pollution exclusion initiatives to determine whether either of these are currently evolving areas of public policy that would merit abandonment of the lex loci contractus choice of law doctrine in this instance.

         A. Maryland's Public Policy Approach to Lead-Based Paint Abatement

         Neither this Court, nor this State, is blind to the deleterious and devastating effects of childhood lead-based paint poisoning. Appellants thoroughly discuss the historical, legislative, judicial, and scientific-related initiatives concerning the safety and protection of victims of lead-based paint poisoning. Appellants assert Maryland's response to the public health issue is evidence of "strong and steadfast" public policy. However, Appellants misunderstand that a response to a public health issue does not affirmatively answer the very narrow question posed before us: whether Georgia's application of pollution exclusion clauses clearly violates Maryland's public policy.

         Historically, Maryland has developed a series of legislative policies aimed at protecting Maryland's children against the severe and permanent effects of lead-based paint poisoning by eradicating lead-based paint in homes. These legislative policies are indicative of a statewide commitment to eliminating lead-based paint from homes. These policies are not evolving toward requiring insurers to cover lead-based paint related claims. Appellants' contentions that Maryland's steadfast and continued efforts to pass laws geared towards removing lead-based paint from homes, do not necessarily translate into a demonstration of a strong state public policy of barring a pollution exclusion provision sufficient to override Georgia's law.

         Maryland has taken a strong approach in protecting children from poisoning by lead-based paint containing substances[5] through legislation aimed at abatement[6] of lead-based paint. Childhood lead-based paint poisoning has been a public issue of national concern for the last fifty years. See Richard Rabin, Warnings Unheeded: A History of Child Lead Poisoning, 79 Am. J. Pub. Health, 1668, 1668 (Dec. 1989). Beginning in the mid-1920s, childhood lead-based paint poisoning gained broader recognition as a common childhood disease, originally believed to be a condition solely stemming from lead-painted surfaces in the home. Id. However, later research uncovered that major sources of lead-based paint were also in "toys, furniture, porch railings, and window sills…" of many residences. Id. at 1669. Children, who typically exhibit hand-to-mouth activity, can ingest either lead-based paint chips that have flaked, or lead dust that becomes present due to normal wear and tear, home repair, or renovation. Jane E. Schukoske, Lead Paint and the Warranty of Habitability in Pre-1950 Rental Housing: Maryland's Lead Poisoning Prevention Program Creates A Presumption of the Presence of Lead Paint, 4 U. Balt. J. Envtl. L. 22, 29 (1994). Consumption of lead-based paint flakes or dust, even in small amounts, may result in poisoning. Id. Permanent injuries caused by lead-based paint poisoning include cognitive impairments, learning disabilities, and developmental delays. Md. Gen. Assemb. Rep. of the Lead Paint Poison. Comm'n. at 2 (May 5, 1994). Often, these permanent injuries that manifest during childhood subsequently impact a person's ability to function as an adult. Id.

         In many ways, Maryland's approach to abating lead-based paint began in Baltimore City, which has been particularly devastated by lead-based paint poisoning. Commencing in 1935, Baltimore City embarked on a series of steps to aid in the diagnoses and prevention of childhood lead-based paint poisoning. See George W. Schucker, et. al., Prevention of Lead Paint Poisoning Among Baltimore Children, 80 Pub. Health Rep. 969, 969 (Nov. 1965). At the first signs of large-scale lead-based paint poisoning in children, Baltimore began offering free access to physicians and hospitals for determination of blood lead levels in children. Id. By 1949, Baltimore City assigned a public health nurse to investigate lead-based paint reports. Id. Baltimore initiated laboratory studies, through which patients' homes were visited and ...


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