Page:Scottsdale Insurance Co. v. Morrow Valley Land Co.pdf/9

 motion, resolving any doubts and inferences against the moving party, to determine whether the evidence left a material question of fact unanswered. Id.

Where the appeal is from the grant of summary judgment in cases involving an insurance policy, we liberally construe any ambiguities in the policy in favor of the insured. ''State Auto Prop. & Cas. Ins. Co. v. Ark. Dep't of Envtl. Quality'', 370 Ark. 251, 258 S.W.3d 736 (2007). The court, and not the jury, determines the construction and legal effect of the policy, except when the meaning of the language depends upon disputed extrinsic evidence. Id.

Scottsdale argues that no duty to defend arose because the unambiguous language of the policy's pollution exclusion negated its duty to defend appellee from the claims in the underlying lawsuit. We must first apply the test for determining a liability carrier's duty to defend. ''See Murphy Oil USA, Inc. v. Unigard Sec. Ins. Co.'', 347 Ark. 167, 61 S.W.3d 807 (2001). As a general rule, the pleadings against the insured determine the insurer's duty to defend. Id. The duty to defend is broader than the duty to indemnify; the duty to defend arises when there is a possibility that the injury or damage may fall within the policy coverage Id. Where there is no possibility that the damage alleged in the complaint may fall within the policy coverage, there is no duty to defend. Id.

To trigger a duty to defend under a CGL policy, the complaint must allege facts that would come within the coverage of the policy. Id. The pleadings in the underlying suit alleged that the defendants operated the CAFO "in such a manner that it generates noxious gases, smoke, dust, fumes, odors and particulate in great quantities which migrate off the