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Vol.13 - Issue 2

July 1, 2024

Pollution Exclusion Does Not Apply To Decomposed Human Body
“Returning the case at hand, if Anderson stands for the proposition that a malfunctioning residential heater emitting carbon monoxide resulting in death and injury does not trigger a policy exclusion for pollutants, it is difficult for this Court to analogize Southside (liquid nitrogen fertilizer tank) and Rybacki (underground heating oil tank) to determine that the Pollutant Exclusion would clearly and unambiguously exclude coverage for a decomposing human body over the course of under 3 weeks. Anderson involved death and injury caused by the so-called pollutant. Here an unfortunate and undiscovered death caused the damage that led to the so-called pollutant. Given the Supreme Court’s disposition of what was clearly a chemical leak that caused damage and death to determine it was not a pollutant under a policy of insurance, this Court cannot determine that the Pollution Exclusion and corresponding Pollution Definition ‘clearly, specifically, and unambiguously’ exclude coverage for process of decomposition of a human body.”  Sherritt v. Ohio Mut. Ins. Co., No. 2023CV01347 (Ohio Ct. Comm. Pl. May 30, 2024).

Contamination Exclusion Precludes Coverage For Meth
“As in Fleming, the exclusion here excludes coverage for loss due to the release or dispersal of contaminants. The exclusion is a stand-alone exclusion and is not part of a broader exclusion for ‘wear and tear’ or other terms that denote gradual processes. It bars coverage specifically for loss ‘either consisting of or caused directly or indirectly’ by the release of contaminants. Importantly, the parties have agreed that plaintiffs’ damage was caused by the tenant’s personal use of methamphetamine and that the damage consists of the cost incurred to remove the residue that resulted from that methamphetamine use. That loss is excluded by the plain language of the exclusion because the residue is itself a contaminant that was caused, either directly or indirectly, by the release of methamphetamine as the tenant smoked the drug in the insured dwelling.” Lockner v. Farmers Ins. Co. of  Oregon, No. A178057 (Ore. Ct. App. June 5, 2024).

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