As an update, in addition to lead, mold and asbestos (and 100’s of chemicals) CARBON MONOXIDE POISONING has been found by a federal court in Pennsylvania to be EXCLUDED by the pollution exclusion in GL Policies.
In Foremost Ins. Co. v. Rodriguez, the federal court found the pollution exclusion served as a proper basis for the liability insurer to seek declaratory relief that it had no duty to defend or to indemnify the landlords.
The liability insurer sought to disclaim coverage for an underlying lawsuit alleging carbon monoxide exposure.
The landlords’ policy excluded coverage for bodily injury arising out of the discharge, dispersal, release, escape of, or the ingestion, inhalation or absorption of pollutants.
The policy contained a typical definition of pollutants, which included any gaseous irritant or contaminant, including smoke, vapor and fumes.
In the coverage case, the Foremost court applied Pennsylvania law, and compared the “four corners” of the underlying complaint against the policy.
The underlying complaint alleged injury from exposure to carbon monoxide, and carbon monoxide poisoning.
In applying the pollution exclusion, the Foremost court was not swayed by the fact that carbon monoxide was not expressly included in the policy’s definition of pollutant.
The court found that the language of the pollution exclusion was clear and unambiguous, and in accord with other decisions applying the exclusion.
The court determined that based upon the pending allegations of liability.
In the underlying state court lawsuit, tenants sued their landlords, alleging that the landlords refused to repair a heating system, which resulted, ultimately, in carbon monoxide poisoning. After the tenants’ hospitalization, the local gas company deemed the heater on the property unsafe, and instructed the landlords to replace the heater.
In this case, the Foremost court applied Pennsylvania law governing how courts evaluate the duty to defend, enabling the liability insurer in this case to overcome motions to dismiss filed in coverage litigation based upon the application of the pollution exclusion.
This case demonstrates that correctly applying the standards that govern the proper interpretation of a liability insurer’s coverage obligations is important, and likely outcome determinative.
In this case, the Foremost court applied established Pennsylvania law governing how courts evaluate the duty to defend, enabling the liability insurer in this case to overcome motions to dismiss filed in coverage litigation based upon the application of the pollution exclusion.
