The 8th Circuit recently issued two pollution exclusions cases:
United Fire & Cas. Co. v. Titan Contractors Service, Inc., No. 13-1307 (8th Cir. May 13, 2014)
Church Mut. Ins. Co. v. Clay Center Christian Church, No. 13–1613 (8th Cir. March 25, 2014)
In both of these cases, the Circuit denied coverage under a common policy clause that was aimed to exclude all coverage for loss due to exposure to pollutants.
In Church Mutual, a pastor succumbed to carbon monoxide poisoning when the parsonage’s heating system malfunctioned. The pastor’s wife also suffered bodily injuries from the exposure. The insurer, Church Mutual, denied the claim under the policy’s pollution exclusion clause. The district court granted summary judgment to the insurance company and found there was no coverage.
On appeal, the plaintiffs argued that carbon monoxide is not a pollutant nor an irritant; or in the alternative, that at least the clause excluding coverage was ambiguous. The 8th Circuit looked to the dictionary for answers. It concluded that the ordinary meaning of irritant would necessarily include a gas that would harm humans. It also concluded that carbon monoxide is a gas that can render air “unfit for use” if introduced at high levels, which makes it a “pollutant” as defined by the policies.
In United Fire, the defendant provided construction clean up services. This included sealing concrete floors with a acrylic concrete sealant called TIAH. After Titan applied the sealant, three women became sick and sued. Titan tendered the claim to United Fire, which in turn issued a reservation of rights letter because the policy’s absolute pollution exclusion clause denied coverage. The district court in Missouri determined that TIAH was not a pollutant and granted coverage.
The 8th Circuit overturned the decision and denied coverage. The Circuit applied the reasonable person test. The policy expressly stated there is no coverage for “irritants.” Would a reasonable person Consider TIAH to be a pollutant? It looked to the dictionary definition – which is what an ordinary person would do. An irritant is something that irritates, it found. “There can be little doubt that TIAH falls within that definition.”