The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Motion to Dismiss") filed by Defendant Shirley Guzikowski ("Guzikowski"), an Answer filed by Plaintiff General Casualty Company of Wisconsin ("General Casualty"), and Guzikowski's Reply to Plaintiff's Response to Defendant's Motion to Dismiss. For the reasons explained below, the Court will grant the Motion and dismiss the case.
This is a declaratory judgment action in which General Casualty seeks judgment regarding its duties and obligations to Guzikowski under two insurance policies it issued to her as they relate to claims arising out of a civil action against Guzikowski filed by a third party in state court.*fn1 Guzikowski is landowner and landlord of Newtown Depot Shopping Center in Newtown, PA. (Def.'s Mot. to Dismiss for Lack Subj. Matter Jurisd. at 2.) One of her tenants claims to have suffered personal, as well as bodily, injuries from alleged exposure to carbon monoxide upon the premises leased by Guzikowski located in the Newtown Depot Shopping Center. (Id. at 3.) General Casualty claims that it does not owe Guzikowski a defense or indemnity of claims made against her in the underlying action for bodily injuries sustained as a result of alleged exposure to carbon monoxide. (See Compl.) General Casualty seeks to invoke a pollution exclusion clause contained in both insurance policies in order to deny coverage to Guzikowski.*fn2 (Id.) Specifically, the pollution exclusion clause relied upon by General Casualty, which it claims applies to negate coverage for carbon monoxide exposure claims, provides that there is an exclusion of coverage for:
(1) "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants"
(a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.
(Def.'s Mem. Law Supp. Mot. to Dismiss for Lack Subj. Matter Jurisd. at 4; Exs. 5, 6, Commercial Gen. Liability Coverage Forms.)
Guzikowski denies that such pollution exclusion is a valid premise upon which to deny her coverage. (Id.) Guzikowski claims that coverage is afforded to her under a written exception to the pollution exclusion clause. (Id. at 5.) The written exception states:
However, this subparagraph does not apply to:
(1) "Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment . . . that is used to heat water for personal use, by the building's occupants or their guests. (Id.) (emphasis added). Guzikowski contends that the underlying state action involves allegations that a gas stove from one of her other tenants' premises, an Italian Restaurant owned by Vecchia Osteria, LLC, and/or a gas water heater on the premises caused any alleged carbon monoxide exposure. (Id.) Therefore, she argues that the underlying claim by the third party in state court falls within this exception and outside the scope of the pollution exclusion clause. (Id.)
II. PENDING STATE COURT CASES
As discussed above, Guzikowski is being sued by one of her tenants in state court. This action forms the underlying basis of the instant Declaratory Judgment Act claim. Guzikowski is being sued by Catherine Isaacson, her husband, and Catherine Isaacson's business, Centre Pilates, in Isaacson v. Vecchia Osteria LLC and Shirley Guzikowski individually and t/a Newtown Depot Shopping Center, No. 2011-00864, Court of Common Pleas of Bucks County, Pennsylvania ("Isaacson Action"). (Id. at 3-4.) The Isaacsons contend that Catherine Isaacson suffered personal and bodily injuries from alleged carbon monoxide gas which she asserts emanated from the restaurant premises leased from Guzikowski by an Italian Restaurant doing business as Vecchia Osteria, LLC. (Id.) The Isaacsons assert that the alleged carbon monoxide gas was due to the restaurant's cooking without exhaust fans. (Id. at 3.) They also allege that the carbon monoxide gas came from a ...