Successes

Goldberg Segalla Team Prevails in Pollution Exclusion Coverage Case August 11, 2015

Recently, a team of Goldberg Segalla attorneys — Michael A. Hamilton, Louis H. Kozloff, and Kevin M. Apollo — prevailed before Superior Court in Delaware in a pollution exclusion coverage matter involving whether a pollution exclusion applied to a claim for personal injuries suffered as a result of alleged carbon monoxide poisoning in a home. The insurer’s exclusion barred coverage for bodily injury of property damage “arising out of any interior or exterior presence of ... gaseous, or thermal irritants or contaminants ... or any other waste materials or other irritants, contaminants or pollutants.” In an issue of first impression, the Superior Court concluded that it was “patent that the claim [was] not covered” under the unambiguous pollution exclusion.

The scope of the pollution exclusion under property and liability policies continues to be a hotly contested issue across the United States, with insurers achieving mixed results, depending on the jurisdiction. Two areas that have been frequently litigated as of late focus on what type of solids, liquids, or gases qualify as a “pollutant” or “contaminant” or other term, as used in a pollution exclusion, and whether a particular court would require — sometimes in direct conflict with the policy language — that the pollution exclusion only pertain to traditional environmental harm, loosely described as outdoor, CERCLA-based type of pollution.

With its decision, the Delaware trial court joins other jurisdictions, including courts in Maryland, Minnesota and Pennsylvania,  in holding that that indoor inhalation of carbon monoxide, allegedly resulting in personal injuries, is not covered under a policy containing a pollution exclusion. The court also held that because the underlying claim was clearly based on alleged carbon monoxide exposure, the insurer was not required to affirmatively establish, through expert testimony, that the claimant had actually suffered exposure to carbon monoxide, as no other theory relating to the cause of the claimant’s alleged injuries was given. Because the plaintiff did not file an appeal from the trial court opinion and order granting summary judgment to the insurer, this particular case will remain an unpublished trial court opinion.

Nevertheless, these pollution exclusion cases will continue to proliferate in the insurance coverage landscape: several months ago, for example, a Georgia Court of Appeals held that lead-based paint was not a pollutant under a pollutant exclusion. The Vermont Supreme Court, however, recently concluded that exposure to airborne chemicals from spray-foam insulation fell within the exclusion. These cases illustrate that environmental coverage disputes will continue to give rise to ground-breaking court decisions going forward.