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Carbon monoxide is a pollutant and may, therefore, trigger a pollution exclusion in an insurance policy, the Pennsylvania Superior Court has ruled in a case of first impression. Basing its decision on its own court precedent and dictionary definitions, the three-judge panel in Matcon Diamond Inc. v. Penn National Insurance Co., led by Judge Maureen Lally-Green, found that carbon monoxide falls within the category of a “contaminant.” Judges John L. Musmanno and Richard B. Klein were also on the panel. The plaintiff, Kevin Easterday, was overcome by carbon monoxide fumes while he was working in an area enclosed with plastic in the Beaver Valley Mall, in Beaver County, Pa., according to court documents. Easterday, a subcontractor, was cutting concrete with a gasoline-powered saw that emitted carbon monoxide. Easterday sued contractor Matcon Diamond Inc., other contractors and the May Co. for his injuries, arguing several theories of negligence based on the fact that he was using a gas-powered saw in an enclosed area, court documents say. Matcon requested defense by Penn National Insurance Co., but the insurer denied the request, citing a pollution exclusion in its policy. Matcon filed a declaratory judgment action in an attempt to get an order stating that Penn National had a duty to defend. The Beaver County Common Pleas Court granted Penn National’s motion for summary judgment, finding that the pollution exclusion barred coverage. In the appeal, Matcon argued that the trial court was wrong for finding carbon monoxide a pollutant under the exclusion. Lally-Green said that the issue had never before been addressed by a state appellate court. Lally-Green said Penn National’s policy defined a pollutant as an “irritant” or a “contaminant,” according to court documents. The court concluded that carbon monoxide falls into the latter category. In its ruling in Municipality of Mount Lebanon v. Reliance Insurance Co. in 2001, the Superior Court defined a “contaminant” as something that “renders another thing impure or unsuitable by contact or mixture.” Lally-Green also cited Random House Webster’s Unabridged Dictionary, which defines “carbon monoxide” as a “poisonous gas” that makes the air it mixes with “impure” and “unsuitable” for breathing. In addition, Lally-Green said, carbon monoxide is regulated by both state and federal laws. The federal Clean Air Act defines carbon monoxide as a pollutant, she said. And the Pennsylvania Hazardous Sites Cleanup Act defines a pollutant, in part, as any substance that can cause death or physiological malfunctions once it is released into the environment. “Carbon monoxide is a substance or compound which, upon inhalation, may reasonably be anticipated to cause death or physiological malfunctions,” Lally-Green said. “Moreover, in the underlying action, Easterday has alleged that he suffered physical harm from the most commonly known danger of carbon monoxide: namely, breathing it in an enclosed space.” Therefore, the court found that the trial court had not erred. Lally-Green said the case was distinguishable from the Mount Lebanon decision, in which the court found that natural gas is not a pollutant. The Mount Lebanon panel, of which Lally-Green was also a member, noted that state and federal laws exclude the substance as a “pollutant” and said the fact that natural gas is dangerous or flammable does not automatically render it a pollutant. “In the instant case,” Lally-Green said, “the dictionary definition of carbon monoxide as a ‘poisonous gas,’ combined with its well-known toxic effects and its status as a regulated pollutant under state and federal law, compels the opposite result.” Matcon also argued that it reasonably expected to be covered because the injury occurred on the job site and its work had not created pollution, according to court documents. But those claims did not succeed, either. “Under Pennsylvania law, mere assertions that a party expected coverage will not ordinarily defeat unambiguous policy language excluding coverage,” Lally-Green said. “We also note that our Supreme Court has rejected the position that pollution exclusions should be limited to claims in the nature of an environmental catastrophe.”

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