Lititz Mutual Insurance Co. v. Steely

No. 98-01719HBG (746 A.2d 607) (Pa. Super. Ct. December 28, 1999)

The court holds that a pollution exclusion clause in a rental property owner's insurance policy bars coverage of underlying claims based on the lead poisoning of a tenant's child. The court first holds that the pollution exclusion's definition of pollutant unambiguously applies to lead-based paint. Lead-based paint is not innocuous. Exposure to lead in lead-based paint has been extensively studied, and its deleterious effects are well known. Indeed, it is for these reasons that the use of lead in residential paint has been banned. Moreover, lead-based paint, not just the lead in the paint, is a pollutant. The court next holds that the exclusion unambiguously applies to the facts of this case. Movement of paint dust due to the exfoliation, abrasion, flaking, [30 ELR 20272] and deterioration of paint constitutes an actual discharge, dispersal, release, or escape of a pollutant under the pollution exclusion clause. The property owner, therefore, is not covered under the policy.

A dissenting judge would hold that the nature of the claims underlying this dispute involve causes of action such as breach of implied warranty of habitability and misrepresentation and, therefore, do not trigger application for the pollution exclusion.

The full text of this opinion is available from ELR (18 pp., ELR Order No. L-152).

[Counsel not available at this printing.]

[30 ELR 20272]

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