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Meridian Mut. Ins. Co. v. Kellman

Citation: 30 ELR 20243
No. No. 98-1801, 197 F.3d 1178/(6th Cir., 12/02/1999)

The court affirms a district court holding that a total pollution exclusion clause does not exempt an insurer from defending a painting company for an individual's personal injuries caused by exposure to toxic chemicals that were used by the painting company in the course of its business. The insurance policy held by the painting company contained a pollution exclusion clause providing that the insurance would not apply to bodily injury or property damage that would not have occurred but for the discharge, dispersal, seepage, migration, release, or escape of pollutants. A teacher in the school the company was painting brought a lawsuit alleging that fumes from the chemicals the company used seeped into her classroom and caused her severe and disabling respiratory injuries. The court first holds that the total pollution exclusion clause does not bar coverage for the teacher's injuries. In light of the disarray surrounding pollution exclusion clauses, no reasonable person could find that the insurance policy at issue unambiguously excluded coverage for injuries suffered by an employee who was in the vicinity of the chemicals and where the injury occurred only a few feet from where the chemicals were being used. Moreover, a pollution exclusion clause does not shield an insurer from liability for injuries caused by toxic substances that are still confined within the area of their intended use. The fact that the injured party was not the direct user of a harmful product does not change a localized injury into an excludable discharge of pollutants under the policy, where, as here, the injured party was in the immediate vicinity of the harmful product at the time of injury.

Counsel for Plaintiff
Daniel S. Saylor
Garan, Lucow, Miller, Seward, Cooper & Becker
1000 Woodbridge Pl., Detroit MI 48207
(313) 446-1530

Counsel for Defendant
Matthew E. Krichbaum
Soble & Rowe
221 N. Main St., Ann Arbor MI 48104
(734) 996-5600

Before Martin and Daughtrey, JJ.