An insurance company does not have to indemnify a landlord whose tenants sued over carbon monoxide poisoning, a federal judge has ruled.
U.S. District Judge Joseph F. Leeson Jr. of the Eastern District of Pennsylvania granted Foremost Insurance Co.’s motion for summary judgment on the basis that the policy’s pollutant exclusion was applicable.
Plaintiffs Gina Sylvestre and her two children, Jeffrey and Barbara LeBrun, sued landlord and building owner Nosam LLC after suffering carbon monoxide poisoning, allegedly from a faulty furnace, according to Leeson’s opinion.
The malfunction in the furnace was allegedly caused by a neighboring chimney collapsing and falling into the plaintiffs’ chimney. This allegedly caused a blockage in the heating unit at the plaintiffs’ residence, causing the emission of carbon monoxide.
According to Leeson’s opinion, Nosam’s policy with Foremost reads, “We will not pay for bodily injury or property damage … [a]rising out of the actual, alleged or threatened discharge, dispersal, release, escape of, or the ingestion, inhalation or absorption of pollutants.”
The underlying plaintiffs later claimed that the emission was caused by an accidental fire when the heating system was converted to a gas system, which would trigger the exclusion to the policy exemption. Nosam did not respond to the summary judgment motion, Leeson said.
As for the fire exclusion, Leeson said it did not apply because the underlying plaintiffs failed to show that the gas buildup leading to their exposure was accidental under the policy definition.
“Although the underlying plaintiffs contend that they did not know the heating system had been converted to gas, there is no suggestion they did not knowingly and intentionally start the December 9, 2015, fire by turning on the furnace,” Leeson said.
“There is also no suggestion that any flames from, or any part of, this controlled fire extended outside the sealed unit where it was designed to burn,” Leeson continued. “Further, although the chimney collapse may have contributed to the buildup of carbon monoxide inside the residence, the unexpected collapse did not cause the fire. The fire, regardless of whether it was ignited by gas or oil, did not happen by chance or unexpectedly and was therefore not ‘accidental.’ Although the buildup of carbon monoxide was accidental, it was not ‘released by an accidental fire’ and the underlying plaintiffs’ attempt to conflate the two requires a strained interpretation of that term.”
Foremost is represented by Eric Brown of Marshall Dennehey Warner Coleman & Goggin; Nosam is represented by Larry Miller; and the underlying plaintiffs are represented by Jeffrey Parker of Lowenthal & Abrams. None responded to requests for comment.