Tred Eyerly | Insurance Law Hawaii | February 3, 2016
In a per curiam decision, the Fifth Circuit affirmed the district court’s holding that the pollution exclusion barred coverage for bodily injury caused by the insured’s insulation. Evanston Ins. Co. v. Lapolla Industries, Inc., 2015 U.S. App. LEXIS 22552 (5th Cir. Dec. 23, 2015).
The homeowners’ contractors installed spray polyurethane foam (SPF) insulation as part of a renovation project in the home. Lapolla manufactured the SPF. Shortly after the insulation was installed, the homeowners smelled strong odors and suffered respiratory distress, causing them to leave the home. The homeowners sued the contractor and various subcontractors for negligence and breach of contract. A third party complaint was filed against Lapolla. The homeowners also amended their complaint to assert a products-liability claim against Lapolla.
Lapolla tendered to its CGL carrier, Evanston. Relying on the pollution exclusion, Evanston denied coverage. The policy excluded coverage for damages that “would not have occurred . . . but for the actual, alleged or threatened discharge, dispersal, seepage, migration release or escape of pollutants . . . .” “Pollutants” were defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, electromagnetic fields and waste.”
Evanston filed suit seeking a declaratory judgment that it had no duty to defend or indemnify. Both parties moved for summary judgment. Relying on the pollution exclusion, the district court granted summary judgment to Evanston.
The Fifth Circuit affirmed. The homeowners alleged that they suffered adverse health effects because of the vapors from the SPF insulation. They alleged that there were strong odors, and that they suffered upper respiratory injuries. All of the allegations fell under the pollution exclusion, entitling Evanston to summary judgment.