Sunday, May 18, 2014
Eighth Circuit: Damages from Exposure to Concrete Sealant are subject to "Pollution Exclusion" in CGL Policy
Just a few days ago, the Eighth Circuit (applying Missouri law) analyzed whether a contractor had insurance coverage under a CGL policy relative to personal injuries stemming from three ladies' alleged exposure to an acrylic concrete sealant. The contractor had utilized the sealant in an office park where the ladies were employed. In a declaratory relief action, United Fire & Casualty Co. v. Titan Contractors Service, Inc., the Circuit Court held that a reasonable person purchasing the policy would consider the acrylic concrete sealant to be a "pollutant," which was defined in the policy to include an "irritant." While the term "irritant" was not defined in the policy, the Circuit Court held that the concrete sealant was an "irritant" as that term is ordinarily utilized, and thus fell under the policy's "pollution exclusion." The Circuit Court did remand the case for a determination of whether the alleged injuries resulted from the "discharge, dispersal, seepage, migration, release or escape" of the sealant. To avoid uninsured liabilities, contractors using potentially harmful solvents and various other chemicals should ensure they are properly insured against injuries stemming from the alleged exposure to such products.