Source: https://www.law.com, July 24, 2018
By: Steven A. Meyerowitz, Esq., Director, FC&S Legal
This story is reprinted with permission from FC&S Legal, the industry’s only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.
A federal district court in Florida has ruled that a pollution exclusion in an insurance policy issued to a homeowner’s association precluded coverage of a lawsuit seeking damages for the death of two people in a condo unit caused by carbon monoxide poisoning.
The Case
Ursula Maria Alvarez and Jose E. Rodriguez Jr. died from carbon monoxide poisoning in a condominium unit in Broward County, Florida. The carbon monoxide apparently came from a motor vehicle in the unit’s garage when it became airborne and seeped into the air conditioning ducts or vents, causing the carbon monoxide to be distributed to the second floor bedroom, where it was unknowingly inhaled by Ms. Alvarez and Mr. Rodriguez, resulting in their deaths.
Ms. Alvarez’s mother, Luisa Antonia Guido, filed a wrongful death complaint against Courtyards at Hollywood Station Homeowners Association, Inc. (“Courtyards HOA”), which controlled the condominium’s common elements.
Colony Insurance Company, which had issued commercial general liability insurance coverage to Courtyards HOA, asked a court to declare that it had no duty to defend in Ms. Guido’s action.
Relying on its policy’s “total pollution exclusion,” the insurer moved for summary judgment.
The Colony policy excluded coverage for:
“[b]odily injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at any time.
An exception (the “Exception”) provided that the exclusion did not apply to:
“Bodily injury” if sustained within a building which is or was at any time owned or occupied by, or rented or loaned to, any insured and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building, or equipment that is used to heat water for personal use, by the building’s occupants or their guests. . . .
The District Court’s Decision
The district court granted summary judgment in favor of the insurers.
In its decision, the district court explained that Ms. Guido’s complaint alleged that Ms. Alvarez and Mr. Rodriguez had died from carbon monoxide poisoning. It observed that carbon monoxide was a pollutant under the policy’s total pollution exclusion, so the allegations in Ms. Guido’s complaint fell within the exclusion.
The district court rejected the argument that the allegations in Ms. Guido’s complaint brought her claim within the Exception to the exclusion because the actual source of the carbon monoxide was unknown and “may have been produced by or originated from the building’s heating, cooling, or dehumidifying equipment,” so the Exception “could potentially apply.”
According to the district court, Colony’s duty to defend Courtyards HOA could “not arise from an inference that the carbon monoxide could have been produced by, or originated from, equipment used to heat, cool, or dehumidify the [unit].” Ms. Guido’s complaint only listed the motor vehicle left running in the garage as a potential source of the carbon monoxide, the district court said, adding that it could “not infer any other sources to create a duty to defend.”
Moreover, the district court was not persuaded by the argument that the carbon monoxide had entered the unit through air conditioning ducts or vents, so that it originated from the ducts or vents and Ms. Guido’s allegations fell within the Exception. In the district court’s opinion, for the purposes of the Exception, the carbon monoxide “was produced by or originated from the motor-vehicle, not the A/C ducts or vents.”
The fact that the carbon monoxide entered the unit through the air conditioning ducts or vents did not mean that the carbon monoxide had been produced by, or had originated from, the ducts or vents, according to the district court. Rather, the district court said, it originated from and was produced by the motor vehicle. Accordingly, the facts alleged did not fall within the Exception and Colony had no duty to defend Courtyards HOA in Ms. Guido’s action, the district court concluded.
The case is Colony Ins. Co. v. Great American Alliance Ins. Co., No. 17-62467-CIV-DIMITROULEAS (S.D. Fla. July 17, 2018). Attorneys involved include: For Colony Insurance Company, Plaintiff: Lawrence I Gramovot, Gramovot , Takacs, PL, Tallahassee, FL. For Great American Alliance Insurance Company, Intervenor Plaintiff: Daniel Hentschel, LEAD ATTORNEY, Hinshaw & Culbertson LLP, Miami, FL; Ronald Lee Kammer, LEAD ATTORNEY, Hinshaw & Culbertson LLP, Coral Gables, FL. For The Courtyards At Hollywood Station Homeowners Association, Inc., Defendant: Ralph George Patino, LEAD ATTORNEY, Patino & Associates, P.A., Coral Gables, FL. For Luisa Antonia Guido, individually, and as Personal Representative of the Estate of Ursula Maria Alvarez, Defendant: Gonzalo Ramon Dorta, LEAD ATTORNEY, Dorta Law, Coral Gables, FL. For Steven Rodriguez, as Personal Representative of the Estate of Julio E. Rodriguez, Jr., Defendant: Joseph C. Schulz, LEAD ATTORNEY, The Law Offices of Berman & Berman, Boca Raton, FL.
Steven A. Meyerowitz, Esq., is the Director of FC&S Legal, the Editor-in-Chief of the Insurance Coverage Law Report, and the Founder and President of Meyerowitz Communications Inc. As FC&S Legal Director, Mr. Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Mr. Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.