According to Ms. West, as Mr. Milazzo and the employee serviced the septic tank, they discharged raw sewage into her home, causing extensive damage to the home and causing health problems for Ms. West and her family.

Ms. West sued CleanRite, the Milazzos, and two insurers of Clean Rite, Canal Indemnity Company, which had issued a commercial general liability insurance policy to Clean Rite, and Progressive Paloverde Insurance Company, which had issued a commercial auto liability policy covering the septic truck.

Progressive claimed that its policy did not provide coverage for the type of damage that allegedly had occurred in Ms. West's home.

The trial court agreed with the insurer and dismissed Ms. West's claim against Progressive with prejudice.

Ms. West, along with Clean Rite, the Milazzos, and Canal, appealed.

The Progressive Policy

The exclusions in the section of the Progressive policy entitled:

Liability to Others

stated:

Operations

Bodily injury, property damage, or covered pollution cost or expense arising out of the operation of:

a. any equipment listed in Paragraphs b. and c. of the definition of auto; or

b. machinery or equipment that is on, attached to, or part of, a land vehicle that would qualify under the definition of mobile equipment if it were not subject to a compulsory or financial responsibility law where it is licensed or principally garaged. 

The policy's section entitled:

General Definitions

stated:

“Auto” means a land motor vehicle or trailer designed for travel on public roads, or any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state or province where it is licensed or principally garaged. It does not include mobile equipment. Self-propelled vehicles with the following types of permanently attached equipment are autos, not mobile equipment:

… 

c. air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well-servicing equipment. 

Under the policy's section entitled:

Liability to Others

, Progressive agreed to pay damages for:

bodily injury, property damage, and covered pollution cost … because of an accident arising out of the ownership, maintenance or use of that insured auto. 

The appellate court affirmed.

In its decision, it explained that, under the exclusions section in Progressive's policy, bodily injury, property damage, or pollution costs were excluded from coverage when they were caused by the operation of equipment such as a pump permanently attached to a vehicle, or by machinery that was part of mobile equipment.

Here, the appellate court continued, when the pump allegedly caused sewage to back up into Ms. West's home, the septic truck was parked. Even accepting Ms. West's version of events arguendo, it found, the backup of sewage into her home had “occurred strictly from the operation of the pump. The stationary vehicle did not cause, nor could it have prevented the damage caused to [Ms. West's] home.”

The appellate court decided that the policy was not ambiguous and that there was “only one clear interpretation.” According to the appellate court, the policy indicated that bodily injury, property damage, or pollution costs would be covered unless those damages were caused by the operation of equipment, whether permanently attached to the covered vehicle or not. Because Ms. West's damages allegedly had been caused by the operation of the pump on the septic truck, not by the truck itself, Progressive's policy did not cover the damages claimed by Ms. West, the appellate court concluded.

The case is West v. Clean Rite Septic Tank Service, LLC, No. 2016 CA 0306 (La. Ct.App. Jan. 11, 2017). Atttorneys involved include: Kenneth M. Willis Baton Rouge, Louisiana, Counsel for Plaintiffs/ 2d Appellants Shenetta West, individually and on behalf of the minor child, Davonte West, and James Dorsey; John R. Walker Covington, Louisiana, Counsel for Defendants/ 1st Appellants Clean Rite Septic Tank Services, LLC, Courtney Milazzo, John Milazzo, and Canal Indemnity Insurance Company; David J. Schexnaydre Mandeville, Louisiana, Counsel for Defendant/Appellee Progressive Paloverde Insurance Company.