On October 11, 1992, the minor son of John Twardowski and his wife, Mary, took a container of mercury from his home and took it to the home of Judi Grandadam. While playing with it, the mercury spilled and was scattered about the interior of the Grandadam home.
An action was brought by the Grandadams to recover for the damage to their home, as well as personal injuries suffered by members of the household. The complaint alleged that mercury was toxic to humans; that it was readily transported by air and by touch, and was easily absorbed through the skin.
The Twardowskis had a homeowners policy issued by Economy, and they tendered the defense of the claim to Economy.
Economy filed this action for declaratory judgment to determine its liability under its policy, which excluded coverage for "any bodily injury, or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants."
The policy defined "pollutant" as any "solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."
The parties agreed that mercury was a pollutant.
The lower court sustained the company's motion for judgment in its favor, and the insureds appealed.
The higher court, in affirming the judgment in favor of Economy, found that the policy exclusion was clear and not ambiguous, and the company was not liable for the damage caused by the escape of the mercury under the circumstances here.
The court noted, however, that its decision might have been different if the mercury had been released from a broken household thermostat or thermometer. In such a case, mercury might not be considered a pollutant.
Economy Preferred Insurance Company, v. Judi A. Grandadam et al, Appellants (John A. Twardowski and Mary E. Twardowski)--No. 3-94-0703--Appellate Court of Illinois, Third District--October 5, 1995--656 North Eastern Reporter 2d 787