Tenant died: Should insurance pay?

[Guest guest]

http://www.orlandosentinel.com/realestate/orl-homeslaw21042102apr21.story

Tenant died: Should insurance pay?

By Bruss

Tribune Media Services

April 21, 2002

The case history: and Christel own an apartment building where

was a resident. She asked the landlords to spray to eradicate yellow jackets

in the building. Her landlords hired a licensed pest control exterminator

who sprayed the property several times.

became ill and died as a result of the toxic spraying. Her parents

filed a wrongful death lawsuit against and Christel, as well as the

pest control company.

The landlords turned the defense of their lawsuit over to their rental

property insurance company.

After investigation, the insurer denied insurance protection to and

Christel.

The insurance representative pointed to the policy pollution exclusion

clause, which reads: " We do not cover bodily injury or property damage

resulting from the actual, alleged or threatened discharge, dispersal,

release or escape of pollutants at or from any site or location on which you

or any contractors or subcontractors working directly or indirectly on your

behalf are performing operations if the pollutants are brought on or to the

site or location by you or for you. "

and Christel sued their insurer for breach of contract. They argued the

comprehensive liability insurance policy was purchased so they would be

covered for unexpected liability, such as 's death because of the

spraying.

The question: If you were the judge, would you order the insurance company

to provide insurance coverage to the landlords for tenant 's death

because of the toxic spraying?

The decision: The judge said no.

An insurer is entitled to exclude coverage for specified causes, the judge

began. Most comprehensive general liability policies now exclude coverage

for damages because of pollution, he noted.

This insurance policy defines pollution or pollutants as " any solid, liquid,

gaseous or thermal irritant or contaminant, including smoke, vapor, soot,

fumes, acids, alkalis, chemicals and waste materials, " the judge said.

's unfortunate death was because of exposure to such pollutants used

to spray to eradicate the yellow jackets, the judge said.

Because and Christel's insurance policy excludes premises coverage for

injury or damage due to irritants and contaminants, as well as chemicals,

the liability insurer has no duty to provide a defense to the lawsuit or to

pay damages, the judge concluded.

Based on the 2002 California Court of Appeal decision in MacKinnon vs. Truck

Insurance Exchange, 115 Cal.Rptr.2d 369.

Copyright © 2002, Orlando Sentinel