Can you imagine if Wile E. Coyote brought products lability claims against all those Acme-named companies from which he bought devices to try to take down the Road Runner. The devices always backfired, leading to all manner of serious injuries.  Acme’s general liability insurer would surely need some serious manuscript endorsements to address this challenging exposure.  

I couldn’t help but think of an anvil, falling on top of the Coyote, when I saw the exclusion at issue in United Specialty Ins. Co. v. Everest Construction, No. 18-45 (D. Utah Feb. 28, 2019). 

Kimberly Delobel, a building inspector, filed suit against Everest Construction, after she was seriously injured upon being struck by an eighty-five pound package of roofing shingles that had been thrown, by an Everest employee, off the roof of a building at a construction project.

Everest sought coverage from its general liability insurer, United Specialty.  The insurer denied that it owed a defense, citing that oooold “Fall From Heights” exclusion:

“Bodily injury” sustained by any person at the location of the incident, whether working or not, arising out of, resulting from, caused by, contributed to by, or in any way related to, in whole or in part, from a fall from heights. For purposes of this exclusion, a ‘fall from heights’ shall be defined as a fall from any elevation where there is a height differential between surfaces. This also includes the fall of an object causing, contributing to, or in any way relating to, in whole or in part, a person sustaining “Bodily injury.”

Everest argued that the “Fall From Heights” exclusion did not apply because the bag of shingles did not “fall” off the roof, but, rather, it was thrown.  As Everest saw it, the “Fall from Heights” exclusion was silent as to thrown objects.

The court agreed: “United Specialty argues that ‘fall’ includes an object thrown from above.  But the court agrees with the Defendants that United Specialty’s interpretation is strained.  The court concludes, after having reviewed the various dictionary definitions cited by the parties, that the usually accepted understanding of ‘fall’ means that an object drops to the ground without involvement by a human actor.”
   
Unique issue.  Interesting decision.     

I reached out to Everest Construction for comment.  A company spokesperson had two words to say: “Meep Meep.”