Court removes insurer from case against Berks Co. landlord over carbon monoxide poisoning

By Tomas Kassahun | Nov 21, 2018

PHILADELPHIA - In a ruling on Nov. 5, the U.S. District Court for the Eastern District of Pennsylvania ruled in favor of Foremost Insurance Co., saying it doesn’t have to defend a landlord who is facing a lawsuit in a carbon monoxide injury. 

Gina Sylvestre and her two children filed the lawsuit in 2017 in the Berks County Court of Common Pleas, alleging they suffered carbon monoxide poisoning at their residence due to the negligence of Nosam LLC, the landlord of the property.

The residents alleged Nosam failed to ensure the furnace was safe, the opinion stated.

Nosam sought a defense and indemnification from Foremost Insurance Co. pursuant to its insurance policy. Foremost then sought a declaration from the court, stating it does not owe a duty to defend or indemnify Nosam in the state court action based on a Pollution Exclusion in the policy, the district court said.

The district court agreed with Foremost, saying the Pollutant Exclusion bars coverage.

According to the complaint, Sylvestre and her children suffered from carbon monoxide poisoning because the furnace in the basement of the house was emitting a dangerous amount of carbon monoxide. The amended complaint states that the neighboring chimney collapsed and fell into the plaintiffs’ chimney, allegedly causing a blockage in the heating apparatus at the plaintiffs’ residence and contributing to the emission of carbon monoxide.

According to the opinion, the insurance policy says “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 court said “pollutant” is defined in the policy as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, metals, lead paint components and compounds, and waste... However, irritants and contaminants released by an accidental fire on your premises are not a pollutant.” 

According to Nosam’s argument, cited by the court, the facts pled in the underlying lawsuit would fall under the exclusion, but such facts are contested and “some kind of a fire would make more logical sense."

“The underlying plaintiffs also answered, asserting that the Exclusion does not apply because the carbon monoxide was released by an accidental fire, which is an exception to the Exclusion,” the opinion stated.

The court said Foremost filed a motion for summary judgment, arguing that the pollutant exclusion bars coverage, that there are no allegations in the underlying complaints of any fire, and that, regardless, there was no “accidental fire” as that term is used in the policy. 

According to the opinion, the language of the exclusion is clear and unambiguous, and is therefore given effect.

“Aside from the accidental fire exception, the parties also do not dispute that carbon monoxide is a ‘pollutant,’” the opinion stated. “Accordingly, Foremost has met its burden of establishing that the Pollutant Exclusion bars coverage.”

The court added that the fire wasn’t accidental. 

Although the residents argued that they didn’t know the heating system had been converted to gas, the court said there is no suggestion they did not knowingly and intentionally start the fire by turning on the furnace. 

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