Page:Scottsdale Insurance Co. v. Morrow Valley Land Co.pdf/13

 312 Ark. at 129, 851 S.W.2d at 403. The insurer refused to defend or indemnify based on a pollution exclusion in the policy. The insured filed an action for declaratory judgment against the insurer for its failure to defend. The trial court granted summary judgment in favor of the insurer on the basis that the policy contained an exclusion for "waste" and that raw sewage is "waste." Id. On appeal, the issue centered on the interpretation of the term "pollutants" contained in the policy's pollution exclusion. The court concluded that the pollution exclusion was ambiguous because it was not clear from the policy's language whether a single incident involving the back-up of a septic tank in a mobile-home park was necessarily the kind of damage the pollution-exclusion clause was intended to exclude. Id. at 134, 851 S.W.2d at 406. The court further applied the rule of ejusdem generis to consider the term "waste" within the context of the entire list of examples of pollutants, and all of the pollutants contained in the list were related to industrial waste. In Minerva, the court noted that the initial determination of ambiguity must rest with the court, but if the court determines that "ambiguity exists, then parol evidence is admissible and the meaning of the ambiguous terms becomes a question for the fact finder." Id.

The court of appeals, in Anderson, supra, examined a pollution exclusion claimed to exclude an insurer's duty to defend. As in Minerva, the court of appeals concluded that the language of the pollution exclusion was ambiguous because the term "gasoline" was not included in a policy's definition of "pollutants" and the terms "irritant" or "contaminant" could reasonably be construed as either including or excluding the term "gasoline." Anderson, 84 Ark. App. at 318, 140 S.W.3d at 508–09. The court reversed the grant of summary