30 Fla. L. Weekly D1073a
Insurance — Liability — Exclusions — Pollution — Loss arising out of governmental direction that named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants — Trial court properly found that expenses incurred by county in course of remedying pollution as provided by consent order and settlement agreement between Department of Environmental Protection and county were excluded from coverage by government direction exclusion
MIAMI-DADE COUNTY, FLORIDA, Appellant, vs. AVIATION OFFICE OF AMERICA and UNITED STATES FIRE INSURANCE COMPANY, Appellees. 3rd District. Case No. 3D04-2113. L.T. Case No. 96-23008. Opinion filed April 27, 2005. An Appeal from the Circuit Court for Miami-Dade County, Ellen Leesfield, Judge. Counsel: Robert A. Ginsburg, Miami-Dade County Attorney and Mercedes Sandoval Holston, Assistant County Attorney, and Thomas H. Robertson, Assistant County Attorney; Mitchell J. Rotbert (Maryland), for appellant. Akerman, Senterfitt and Nina K. Brown and Antonio D. Morin; Haight, Gardner, Holland & Knight and John M. Toriello (New York), for appellees.
(Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.)
(SCHWARTZ, Senior Judge.) The trial court entered summary judgment that expenses incurred by Miami-Dade County in the course of remedying pollution at Miami International Airport as provided by a 1998 consent order and settlement agreement between the Florida Department of Environmental Protection and the County (which included a 1993 consent agreement between the County Department of Environmental Resources Management and the Metropolitan Dade County Aviation Department) were not covered by two liability policies issued by United States Fire Insurance Company. The court held that the claims were excluded by the following provision:
This policy does not apply:
* * *
(4) to any loss, cost or expense arising out of any governmental1 direction or request that the named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.
As the trial judge correctly stated:
Government direction exclusions have been enforced almost without exception in multiple U.S. jurisdictions. See, e.g., Cataract Metal Finishing, Inc. v. Hartford Fire Ins. Co., 2003 WL 251955, at *2 (W.D.N.Y. Jan. 2, 2003); Feinberg v. Commercial Union Ins. Co., 54 Mass. App. Ct. 587, 766 N.E.2d 888 (Mass. App. Ct. 2002); Cortland Pump & Equip. Inc. v. Firemen’s Ins. Co. of Newark, N.J., 604 N.Y.S.2d 633, 635-637 (App. Div. 1993); Kimber Petroleum Corp. v. Travelers Indem. Co., 298 N. J. Super. 286, 689 A.2d 747 (N.J. Super. Ct. App. Div. 1997); Cincinnati Ins. Co. v. Flanders Elec. Motor Service, Inc., 1993 WL 764462, at *6 (S.D. Ind. 1993), aff’d 40 F.3d 146 (7th Cir. 1994); High Voltage Eng’g v. Federal Ins. Co., 981 F.2d 596 (1st Cir. 1992). The simple import of this exclusion is to bar coverage for the exact costs at issue here arising from the DERM/FDEP Consent Orders. Therefore, . . . the governmental direction exclusion bars all of the County’s claims against U.S. Fire in this litigation.
Affirmed.
__________________
1The word “governmental” was included in one policy, but not the other. The exclusions were otherwise the same in all material respects.
