Absolute Pollution Exclusion Applicable To Allergic Reaction

General Liability	Duty To Defend
Gross Negligence	Irritant

A woman contracted with a home remodeling company to replace sections of the floor and paint interior walls of her house. She claimed that she arranged for the work to be done with non-toxic glue and paint because of her extreme sensitivity to chemicals in commonly used glue and paint. The contractor, however, used standard materials.

The woman sued the contractor, alleging that fumes from the regular glue and paint injured her and caused partial loss of use of her home. The contractor's general liability insurer provided defense under a reservation of rights and filed an action for a declaration of its obligations. The trial court charged the insurer with a duty to defend against the gross negligence claim and concluded that the policy's pollution exclusion was not a bar to coverage. The insurer appealed, contending that the alleged gross negligence claim was not covered by virtue of the following pollution exclusion language:

"This policy does not apply to: 'Bodily injury' or 'property damage' arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants ....Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."

The trial court had determined that the fumes from glue and paint did not "normally inflict injury" and, therefore, are not pollutants within the purview of the pertinent exclusion. It said that all irritants are not pollutants.

The appeal court disagreed. It agreed with the insurer that the pollution exclusion was of an "absolute" nature and excluded the claim from coverage. "Pollutant" was described in the exclusion as "any....irritant," specifically including fumes. The court found, additionally, that a chemical in paint and glue fumes is listed by the EPA as hazardous and that paint and glue cans carry labels to the effect that chemical fumes within may cause injury.

The judgment of the trial court was reversed in favor of the insurance company and against the insured.

AMERICAN STATES INSURANCE COMPANY, Plaintiff-Appellant v. NETHERY, Defendants-Appellees. United States Court of Appeals for the Fifth Circuit. No. 95-60175. April 9, 1996. CCH 1996 Fire and Casualty Cases, Paragraph 5641.