December 1, 2017

Legionnaire’s at Illinois Veterans Home

Read here about the third person at an Illinois veterans home who has recently contracted Legionnaires’ disease.…

September 25, 2017

NYC man dies of Legionnaires’ disease, 1 other sickened

Source: http://www.foxnews.com, September 21, 2017

A Queens resident is dead and another was sickened after they both contracted Legionnaires’ disease within a two-month period, prompting New York City health officials to investigate their apartment building’s plumbing.

The other residents of Park Towers, located on Queens Boulevard in Forest Hills, have been notified of the ongoing investigation.

“The Health Department is working with the building management to test the building’s hot water plumbing system,” a New York City Department of Health and Mental Hygiene spokesman said, according to NBC New York. “The building does not have a cooling tower. While the risk of infection to tenants is very low, as part of our protocol, the Department will notify residents about the investigation and next steps.”

While authorities did not identify either victim, they said the fatality involved an elderly resident.

“It makes my stomach sick,” Denise Innes, a building resident, told NBC New York. “I feel like I don’t know, I’m nervous now to use the water.”

In 2015, there were multiple clusters of Legionnaires’ disease in the Bronx. Twelve people died in the largest one, which was in the South Bronx.

Symptoms of Legionnaires’ can mimic the flu and present as cough, shortness of breath, fever, muscle aches and headaches. Symptoms typically begin two to 10 days after exposure, and could progress to lung failure or even death without treatment. According to the Centers for Disease Control and Prevention (CDC), about one out of every 10 Legionnaires’ patients will die due to complications form their illness.…

August 30, 2017

Lead-Based Paint Is a “Pollutant” within CGL Pollution Exclusion

Source: http://www.constructionrisk.com, August 2017
By: Kent Holland

Where lead-based paint was ingested by a tenant’s child, the tenant sued her landlord for injuries allegedly sustained by the child. The landlord tendered the claim to its commercial general liability (CGL) insurer who, instead of defending the case, filed a declaratory judgment action seeking a determination that the pollution exclusion of the CGL policy barred coverage for the alleged injuries. The Owner held that, although not specifically listed in the pollution definition as a “pollutant,” lead-based paint is, in fact, a “pollutant” within the meaning of the policy. The policy’s pollution exclusion was, therefore, applicable, and the insurer had no duty to defend and indemnify the landlord. See Georgia Farm Bureau Mut. Ins. Co. v. Smith, 298 Ga. 716, 784 S.E.2d 422 (2016).

The terms of the CGL policy required the insurer “to pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’” … “only if: (1) the ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place ….” An occurrence is defined as “an accident.” Coverage was subject to exclusions, including the pollution exclusion, which provided that the insurance does not apply to “(1) ‘[b]odily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’: (a) [a]t or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.”…

May 10, 2017

Law firm says elevated levels of radioactivity found in four more Bridgeton homes

Source: http://www.stltoday.com, May 9,2 017
By: Bryce Gray

Months after a Bridgeton couple filed a lawsuit alleging that household dust and soil from their property contained elevated levels of radioactivity, the plaintiffs’ law firm said Monday that tests of four more homes show similar contamination.

All homes are about a half mile south of the West Lake Landfill, slated for cleanup through the Environmental Protection Agency’s Superfund program. The November lawsuit filed by Michael and Robbin Dailey of Bridgeton’s El Ferrol Court alleged that samples taken from the couple’s home matched the radioactive signature of the waste dumped in the landfill decades ago.

One of the new homes tested is also on El Ferrol Court. The other three are on nearby San Sevilla Court, elsewhere in the Spanish Village neighborhood.

Samples from all four allegedly show the presence of radioactive isotopes such as thorium, radium and lead that exceed naturally occurring levels. The newly tested households are still determining how to proceed — and whether to pursue litigation — after getting the results, said Winston Calvert, a spokesman for Hausfeld, the Washington-based law firm handling the Daileys’ case.

Calvert said that the firm has paid for area residences to get tested after being approached by individuals at community meetings. He said more test results are pending for other homes in both Bridgeton and near Coldwater Creek, regarding separate concerns of radioactive contamination.

“Our investigations of radiation contamination in the Bridgeton area will continue,” said Calvert. “We expect lab reports from other homes in the area soon.”…

September 22, 2016

HUD proposes new lead-based paint rule to protect kids

Source: http://www.crainsdetroit.com, September 19, 2016
By: Saulius Mikalonis

“Because lead-based paint is the most important source of lead exposure for young children, the first essential element of primary prevention is implementation of strategies to control lead paint-contaminated house dust and soil and poorly maintained lead paint in housing.” — Preventing Lead Poisoning in Young Children, Centers for Disease Control, August 2005

The U.S. Department of Housing and Urban Development recently announced a new proposed rule that would lower the threshold for responding to elevated blood lead levels in children under 6 years old living in HUD-assisted housing. Currently, HUD requires intervention for lead-based paint when testing finds children living in target housing with a one-time blood lead level of 20 micrograms per deciliter of lead (μg/dL) or 15-19 μg/dL in two tests taken at least three months apart. HUD’s proposed standard will be CDC’s current “reference range value” of 5 μg/dL, which the CDC may revise every four years.

Lead was used in paints prior to 1978, because it made painted surfaces washable and more durable. The Toxic Substances and Control Act (TSCA) banned the use of lead in paint, beginning in 1978 because of health concerns associated with exposure to lead. HUD adopted the Lead Safe Housing Rule (LSHR), which established requirements with respect to lead-based paint hazards in HUD-assisted projects. As noted in the quote from the CDC report above, children are especially susceptible to lead-based paint in the form of paint, paint dust, soils contaminated with lead paint and dust from lead paint and this type of exposure represents the greatest lead-based risk to children.…

April 20, 2016

Judge: No insurance reimbursement for River Ridge

Source: http://www.newsandtribune.com, April 19, 2016
By: Elizabeth Beilman

Board still hoping to receive $1 mil back for environmental policy

An ongoing fight for reimbursement of $1 million worth of environmental insurance between the River Ridge Development Authority and the U.S. Army is not over.

Last month, the U.S. Armed Services Board of Contract Appeals granted River Ridge about $27,000 in credit but left the bulk of insurance payments to be negotiated directly between the Army and River Ridge.

“Basically [the meeting] is to provide more evidence and to show whether or not there’s any overlap in what the insurance covers and what the Army agreed to cover in its indemnities,” River Ridge General Counsel David Lewis said during a board meeting Monday.

River Ridge is asking for reimbursement of its environmental insurance policy because officials believed when a lease agreement was first signed, the Army would be the liable party.

River Ridge bought the 10-year pollution insurance plan in 2005 when it learned the Army would not shoulder River Ridge’s liability related to personal injury and property damage from hazardous substances.

And though the master lease between both parties — which allows River Ridge to operate on the land until all land is transferred —provided this indemnity when the lease was signed, the Army later stated the provision was a mistake. Because the former Indiana Army Ammunition Plant was closed through special legislation, the Army had no authority to provide this indemnity.…

April 14, 2016

Georgia Supreme Court Denies Coverage for Lead-Based Paint Injuries Based on the Pollution Exclusion

Source: http://www.lexology.com, April 12, 2016
By: Thomas C. Blatchley, Gordon & Rees LLP

In a matter of first impression, the Georgia Supreme Court recently held that personal injury claims arising from lead poisoning due to lead-based paint ingestion were excluded from coverage under an absolute pollution exclusion in a commercial general liability insurance policy covering residential rental property. The decision in Ga. Farm Bureau Mut. Ins. Co. v. Smith, S15G1177, 2016 Ga. LEXIS 245 (Ga. Mar. 21, 2016) is significant for insurers since it expressly rejects the notion that a pollution exclusion clause is limited to traditional environmental pollution.

The facts are straightforward. Amy Smith (“Smith”), individually and as next friend of her daughter Tyasia Brown (“Brown”), sued her landlord, Bobby Chupp (“Chupp”), for injuries Brown allegedly sustained as a result of ingesting lead from deteriorating lead-based paint at the house Smith rented from Chupp. Georgia Farm Bureau Mutual Insurance Company (“GFB”) insured the house under a CGL policy issued to Chupp. Chupp tendered Smith’s claims to GFB, and the insurer filed a declaratory judgment action against Smith and Chupp seeking a determination that Brown’s injuries were not covered under the policy and that it had no duty do defend Chupp against Smith’s claims.

GFB contended, among other things, that Brown’s injuries from lead poisoning were excepted from coverage by the policy’s pollution exclusion, which defined “Pollution” as “‘[b]odily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, 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.”…

October 22, 2015

When an Exception to the “Mold Exclusion” Exposes Carriers to More Than Just Fungi or Bacteria

Source: http://www.jdsupra.com, October 21, 2015
By: Eric Cheng, Wilson Elser

The recent New York City outbreak of Legionnaires’ disease (named for a 1976 outbreak of a type of pneumonia at an American Legion convention) has raised awareness of the illness. It has also renewed the courts’ interest in interpreting the Mold Exclusion. In the recent decision Acuity v. Reed & Associates, No. 15-2149 (W.D. Tenn. August 19, 2015), the court held the exception to the exclusion, i.e., fungi or bacteria contained in a good or product intended for bodily consumption, applied to provide coverage.

The Reed action arises out of a personal injury matter where the tenant filed suit against the insured Reed & Associates seeking damages for injuries allegedly sustained due to mold infestation of a house rented from Reed. Reed tendered its defense to Acuity, its insurer. Acuity agreed to defend under a reservation of rights and filed an action seeking a declaratory judgment that its policy did not provide coverage.

At issue was whether the policy’s “Fungi or Bacteria Exclusion” applied to exclude coverage.

The exclusion is as follows:

“Bodily injury or property which would not have occurred, in whole or in part, but for the actual alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of any fungi or bacteria on or within a building or structure, including its contents, regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage.”…

September 11, 2015

Insurer must defend asbestos exposure lawsuit, California court rules

Source: http://www.lexology.com, August 27, 2015
By: Amy B. Briggs, Donna M. Carlton, Christine Spinella Davis, David B. Killalea, Stephen T. Raptis and Robert H. Shulman, Manatt Phelps & Phillips LLP

Why it matters: A California federal judge has ruled that an insurer had a duty to defend an apartment owner and its construction contractor in connection with a suit brought by tenants who allege they were exposed to asbestos. Although the policy contained an exclusion for injuries that “related in any way” to asbestos, the underlying allegations included potentially covered claims, such as wrongful entry into the tenants’ unit. As such, the insurer was obligated to defend the entire suit. The insurer asserted that the asbestos exclusion still applied to those allegations because the insured’s employees made multiple entries into the building to abate the asbestos. But the court disagreed, finding that argument to be baseless, pointing out that the tenants did not claim in their suit that asbestos abatement was the reason for the alleged wrongful entries. Emphasizing that the test to prove a duty to defend is extremely lenient, the court explained that “even if one such entry could properly be excluded under the asbestos exclusion, [the insurer] has not established that there was no potential for coverage for the other alleged entries.”

Detailed discussion: In 2012, tenants of Parklyn Bay brought suit against the apartment owner and its contractor Oliver & Co., alleging, among other things, that they knowingly or negligently exposed the tenants to asbestos during a construction project.

The complaint also contained allegations that were unrelated to asbestos. For example, one of the allegations stated: “During the time that plaintiffs were out of their unit, defendants and/or workers employed by defendants made multiple entries into the Premises without prior notice, and without the consent of plaintiffs.”…

February 11, 2015

Virginia court nixes claim Chinese Drywall damage to HVAC systems is covered as equipment breakdown

Source: http://www.lexology.com, February 5, 2015
By: Richard C. Bennett, Cozen O’Connor

In Travco Ins. Co. v. Ward, 284 Va. 547, 736 S.E.2d 321 (2012), the Virginia Supreme Court held that loss occasioned by the sulfuric gas released by defective Chinese drywall was excluded under the primary coverage grant of a property policy because of exclusions for corrosion and pollution.  Last month, a Virginia federal court shut down claims that such a loss might nonetheless be covered under a policy’s secondary coverage provisions extending coverage to equipment breakdown.  The matter was Nationwide Mut. Ins. Co. v. CG Stony Point Townhomes, LLC, 2015 WL 236826, 2015 U.S. Dist. LEXIS 5682 (E.D.Va., Jan. 15, 2015).

The policyholder made claim after the heating, ventilating, and air-conditioning (HVAC) systems in five townhouses at its Creek’s Edge at Stoney Point Townhomes complex in Richmond broke down due to off-gassing from the drywall.  Its property insurance carrier, Nationwide Mutual, responded by filing a declaratory judgment action asking the court to hold that it had no obligation to cover the claims.  Stony Point conceded that it had no coverage under the main body of the contract of insurance in the wake of Travco, but it contended that the damage to the HVAC units was covered by an Additional Coverage for “Equipment Breakdown.”  This recited that Nationwide “will pay for loss caused by or resulting from an ‘accident’ to ‘covered equipment.’ “  The provision also afforded coverage for “the additional cost to repair or replace Covered Property because of contamination by a ‘hazardous substance.’ “…