holding that pollution exclusion in apartment owner’s commercial insurance policy did not apply to claims arising from residential carbon monoxide poisoning
How later courts described this case
- holding that pollution exclusion in apartment owner’s commercial insurance policy did not apply to claims arising from residential carbon monoxide poisoning
- considering extrinsic evidence including insurance industry practice surrounding a specific exclusion in a policy before concluding, at summary judgment, that the exclusion could reasonably be read not to cover the insured’s claim
- holding that carbon monoxide from residential space heater was not "pollution” so as to be excluded by pollution exclusion
- ‘‘[T]he policy in question never clearly excludes claims for deaths or injuries caused by residential carbon monoxide poisoning. It is not the responsibility of the insured to guess whether certain occurrences will or will not be covered based on nonspecific and generic words or phrases that could be construed in a variety of ways.”
Written by the judges who cited it.
Distinguished
Distinguished by JTO, Inc. v. Travelers Indemnity Co. of America, 242 F. Supp. 3d 599 (2017)
The Court finds Andersen is distinguishable from the facts at bar and further finds the absolute pollution exclusion applies.
The opinion
Douglas, J.,
concurring. I concur in the syllabus, judgment, and opinion of the majority. I write further only to bring attention to evidence in the record that I believe shows that Indiana Insurance intended these policies to provide coverage for accidents involving carbon monoxide exposure. This evidence is in the form of an “Apartment Evaluation Supplement” questionnaire completed by an underwriter for Indiana Insurance in determining whether to issue insurance policies to Highland House and RMI. The questionnaire was to be “used by the underwriter to review * * * all the major underwriting standards important in the determination if a risk qualifies for [insurance]” and was “meant to alert the underwriter to the more common elements of underwriting this class of business.” Under the heading “Premises Liability” the questionnaire asks whether carbon monoxide detectors are provided in the apartments. (The word “some” was written next to this inquiry on the questionnaire.) If, as Indiana Insurance asserts, the standard commercial general liability insurance policy denies coverage for carbon monoxide exposure, then why would the standard apartment evaluation supplement question whether carbon monoxide detectors are provided in the apartments and why would the underwriter feel compelled to answer the question? If carbon monoxide exposure were not covered, then why would this information be “important in the determination if a risk qualifies for [insurance]”? I believe that this questionnaire clearly shows that Indiana Insurance intended its commercial general liability policies of insurance to provide coverage for carbon monoxide exposure notwithstanding its pollution exclusion. At a minimum, the underwriter’s request for this information from a potential insured supports the *553 potential insured’s reasonable belief that liability for such accidents would be covered by the policy.
F.E. Sweeney and Lundberg Stratton, JJ., concur in the foregoing concurring opinion.