Source: https://www.law.com, March 7, 2019
By: Steven A. Meyerowitz
U.S. District Judge Ursula Ungaro dismissed a case against an insurance company facing a bodily injury claim from paint fumes in an office building.
A federal district court in Miami ruled an insurance policy’s pollution exclusion precluded coverage of a lawsuit against the owner and manager of an office building by a plaintiff claiming she suffered bodily injury after inhaling fumes from oil-based paint used to paint a floor of the building.
In August 2018, Sadie Williams-Panton filed a personal injury lawsuit in a Florida court against Sunnyvale Corp. N.V., and Mink & Mink Inc. Williams-Panton alleged that on or about January 14, 2017, Mink, the property manager of an office building in Fort Lauderdale owned by Sunnyvale, hired a painter to the building’s sixth floor. Williams-Panton asserted that from Jan. 14-16, 2017, the painter painted the sixth floor of the building with an oil-based paint without providing any kind of ventilation.
According to Williams-Panton, on Jan. 17, 2017, she reported to work on the sixth floor of the building when she immediately became overwhelmed with fumes from the oil-based paint, which allegedly caused her to become ill and suffer personal injury as the oil-based paint continued to recirculate through the building’s air conditioning unit.
Williams-Panton alleged that the “inhaling” of the “toxic fumes” from the oil-based paint resulted in her sustaining injuries.
AIX Specialty Insurance Co .filed a complaint in the U.S. District Court for the Southern District of Florida, seeking a declaration that it had no duty to defend or indemnify Sunnyvale or Mink under the insurance policy it had issued to them. AIX argued that pursuant to the pollution exclusion in its policy, Williams-Panton’s claim for personal injury arising out of the oil-based paint fumes was not covered by its policy.
AIX moved for summary judgment.
The District Court’s Decision
U.S. District Judge Ursula Ungaro, applying Florida law, granted the motion.
In its decision, the judge explained the pollution exclusion in the AIX policy excluded coverage for “body injury” resulting from “pollutants,” defined as “any … gaseous … irritant or contaminant, including smoke [and] vapor.”
The district court added that the AIX policy defined “bodily injury” as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.”
Then, the district court pointed out Williams-Panton alleged “the paint fumes from the oil-based paint continued to recirculate through the b]uilding’s air condition unit causing [her] to become ill and suffer personal injury” and that she inhaled “the toxic fumes from the oil-based paint and therefore sustained injury.”
The district court agreed with AIX that Williams-Panton alleged that she suffered bodily injury arising from oil-based paint vapors and irritants, making her claim “clearly subject” to the pollution exclusion.
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.