Is My Drywall Chinese? - HB Litigation Conferences

exclusion should not reflexively be applied to accidents arising during the course of normal
business activities” simply because they involved a “discharge, dispersal, release or escape” of
an “irritant or contaminant.” 49 The court therefore held that the case before it fell outside the
exclusion because it did not involve the kind of situation for which the exclusion was designed.
In a lengthy, impassioned dissent, one panel judge found that carbon monoxide fumes
constitute “pollutants” because they are “gaseous” “contaminants” which includes “fumes.” The
dissent criticized the majority for looking to the history of the exclusion when, in the dissenting
judge’s view, the language of clause was “plain and unambiguous.” 50
Other Cases Limiting the Reach of “Absolute” or “Total” Exclusions
Other state appellate courts also have concluded that the APE does not apply to injuries
caused by gases (carbon monoxide) originating from defective heaters or ovens. 51 For example,
the Supreme Court of Ohio refused to apply an APE to the release of carbon monoxide from a
faulty apartment heater. 52 The court refused to apply the exclusion to preclude coverage because
the exclusion does not “clearly, specifically, and unambiguously state that coverage for carbon
monoxide poisoning is excluded.” 53
49 Id. at 328-29.
50 Id. at 354.
51 Andersen v. Highland House Co., 757 N.E.2d 329, 331 (Ohio 2001); American States Ins. Co.
v. Koloms, 687 N.E.2d 72 (Ill. 1997); Western Alliance Ins. Co. v. Gill, 686 N.E.2d 997 (Mass.
1997); see also Motorists Mut. Ins. Co. v. RSJ, Inc., 926 S.W.2d 679, 682 (Ky. Ct. App. 1996).
52 Andersen, 757 N.E.2d at 331.
53 Id. at 331. See also Koloms, 687 N.E.2d at 81 (insurance industry sought to avoid “the
enormous expense and exposure resulting from the explosion of environmental litigation”)
(internal quotation marks and citation omitted); Gill, 686 N.E.2d at 998-99 (the exclusion’s
language “brings to mind products or byproducts of industrial production that may cause
environmental pollution or contamination.”).
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