Page:Scottsdale Insurance Co. v. Morrow Valley Land Co.pdf/10

 property and are disseminated in great quantities through the surrounding environment." The plaintiffs claimed that these gases, smoke, dust, fumes, odors, and particulate caused them to suffer "grievous discomfort" by effecting nausea and sleep disturbance and by forcing the plaintiffs to stay inside their homes with windows closed to diminish the stench. The plaintiffs stated that the foregoing conduct interfered with and denied them the use and peaceful enjoyment of their properties and resulted in a decrease in the property value of their properties. The plaintiffs alleged that the foregoing conduct constituted a public and private nuisance and a continuing trespass under Tennessee law.

Scottsdale provided a CGL-insurance policy during the relevant period alleged in the complaint. The policy stated that Scottsdale was obligated to defend appellee against any suit seeking damages because of bodily injury or property damage to which the coverage applied. However, Scottsdale relied on the policy's pollution exclusion, which follows, to deny coverage:

"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.""

The policy defined the term "pollutants" 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."

To determine whether a duty to defend arises in this suit, we must examine the language in the contract from which the purported duty arises. A critical part of this