Scottsdale Ins. Co. v. Pursley (11th Cir. (Ga.) Jan. 10, 2012)
The Eleventh Circuit recently held that the pollution exclusion in a CGL policy did not bar coverage for a wrongful death claim arising from carbon monoxide poisoning.
The decedent retained the insured to make repairs on his boat. When making the repairs, the insured neglected to cover the exhausts for the starboard engine. While the repairs were ongoing, the decedent stayed overnight on the boat and used a generator to power the air conditioner. The next morning, the decedent was found dead next to his bed. It was later found that uncovered exhaust vents emitted carbon monoxide into the cabin via the air conditioner.
The decedent’s widow and his estate sued the insured for wrongful death and property damage. The insured’s CGL carrier denied coverage on the ground that the policy’s pollution exclusion applied. The district court agreed and found that the pollution exclusion precluded coverage.
On appeal, the Eleventh Circuit noted that the carrier’s reliance on the Georgia Supreme Court’s holding in Reed v. Auto-Owners Ins. Co., 677 S.E. 2d 90 (Ga. 2008) was misplaced. In Reed, the Georgia Supreme Court found that a pollution exclusion in a landlord’s insurance policy precluded coverage for a claim arising from carbon monoxide poisoning. The Eleventh Circuit noted that in Reed, the insured owned the premises, whereas in the case before it, the insured did not. The distinction was an important one insofar as the exclusion at hand barred coverage only if a pollutant leaks “at or from any premises, site or location which is or was at anytime owned or occupied by or rented or loaned to any insured.” The Eleventh Circuit held that the pollution exclusion did not apply because the insured did not own the boat where the decedent died.
For a copy of the decision, click here
Carrie Appler and Jeffrey Kingsley