Litchfield Cavo Obtains Summary Judgment For Insurer In Coverage Dispute Involving Carbon Monoxide Exposure Claims and Total Pollution Exclusion Clauses

Litchfield Cavo LLP Partner Melicent B. Thompson and Associate Joseph H. Carlisle obtained summary judgment from a Connecticut trial court for a commercial general liability insurer on a commercial tenant’s claims for insurance coverage arising from her alleged exposure to carbon monoxide. The court’s ruling marks the first time that a Connecticut court has held that carbon monoxide qualifies as a “pollutant” when exposure occurs in a commercial setting, and therefore, carbon monoxide exposure claims are barred from coverage under a general liability policy’s pollution exclusion clause.

In the underlying action against the insured, a construction contractor, the plaintiff claimed injuries from alleged inhalation of carbon monoxide that the insured’s equipment emitted when the insured operated a concrete buggy inside the commercial building where the plaintiff worked. The insured allowed a $500,000.00 stipulated judgment to enter against it in return for assigning its purported rights under the subject CGL policy to the plaintiff.   Plaintiff then sued the insurer under Connecticut’s “direct action” statute to recover the outstanding amount of the stipulated judgment, asserting claims against the insurer for breach of contract, negligence and bad faith, among others.

Attorneys Thompson and Carlisle successfully moved to strike plaintiff’s bad faith claim and then moved for summary judgment on the remaining claims on the ground that the policy’s Total Pollution Exclusion clause barred coverage for plaintiff’s claims because carbon monoxide qualifies as a “pollutant” under the facts presented.

Judge Grant Miller agreed, concluding that the policy’s Total Pollution Exclusion clause was “clear and unambiguous” and that in the commercial setting presented, carbon monoxide qualified as a “pollutant.” Accordingly, Judge Miller held that neither defense nor indemnity coverage existed under the policy for the plaintiff’s claims, which arose exclusively out of alleged carbon monoxide exposure.   Having found that the Total Pollution Exclusion clause was unambiguous, Judge Miller also concluded that plaintiff’s “reasonable expectations” argument was unavailing.

Plaintiff appealed, but withdrew her appeal after settlement discussions.

See Wayland v. Atl. Cas. Ins. Co., 2015 WL 5236636 (Conn. Super. Ct. July 29, 2015)