Carbon monoxide death liability claim fails on pollution exclusion (US)

Two tenants of a second-floor unit in an apartment building (condominium) in Florida USA died in their bedroom, after inhaling carbon monoxide gas whilst asleep.

Carbonmonoxide death liability claim fails on pollution exclusion (US)

Two tenants of a second-floor unit in an apartment building (condominium) in Florida USA died in their bedroom, after inhaling carbon monoxide gas whilst asleep. The gas was believed to have come from a car in the unit’s garage. It seeped into the air-conditioning system of the unit and entered the bedroom through the system’s ducts or vents. The liability insurance claim failed because of a pollution exclusion in the policy. 

The Homeowners Association (HOA) in control of the condominium was sued for wrongful death. The insurers approached the court for a declaration that they owed no duty to defend the action on behalf of the HOA. The insurance policy contained a Total Pollution Exclusion which included aBuilding Heating, Cooling and Dehumidifying Equipment Exception.

 

According to the exclusion, the policy does not cover bodily injury which would not have occurred but for “the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time”. Carbon monoxide is a pollutant under the policy.  

 

The exception provides that the exclusion does not apply to bodily injury if sustained within the insured’s building caused by smoke, fumes, vapour or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building.

The courtrejected the HOA’s argument that the carbon monoxide fell within the exception ontwo bases.  Firstly, the State Complaint filedby the HOA did not allege that the carbon monoxide was produced by ororiginated from the building equipment (it stated that the carbon monoxide wasbelieved to have come from the car). Secondly, the carbon monoxide did not originate from theair-conditioning ducts or vents merely because it travels through them.

The exception did not apply, and the policy did not provide cover. The court order can be accessed here

More News Stories

January 31, 2020
Cybercrime in the Legal Profession

Conveyancing attorneys are becoming increasingly popular targets for cyber criminals both because of the attractively large sums of money involved in property transactions, and the trending increase in the use of electronic communications exchanged between client and attorneys in carrying out and completing certain sensitive transactions.

Read story
January 31, 2020
The pitfalls of not purchasing professional indemnity insurance: The struggles of the construction industry in the current economic climate

The economic crisis in South Africa has seen the construction industry struggling, with several large construction companies filing for business rescue during the course of the year.

Read story
December 11, 2019
Silent Cyber: Unforeseen Data Breach Claim Under a General Liability Policy

On 15 November 2019, Target Corporation (the “Plaintiff”), a listed general merchandise retailer in the United States of America, filed a complaint in the District Court of Minnesota, against ACE American Insurance Company and Ace Property and Casualty Insurance Company (the “Defendant”), now incorporated into Chubb Limited, as a result of the Defendant’s refusal to indemnify the Plaintiff for part of the costs it incurred following a data breach of the Plaintiff’s computer network (the “Complaint”).

Read story