32 ELR 20363 -- Andersen v. Highland House Co.

Andersen v. Highland House Co.

No. 00-1214 (757 N.E.2d 329) (SUPREME COURT OF OHIO November 14, 2001)

ELR Digest

The court holds that carbon monoxide emitted from a malfunctioning residential heater is not a pollutant under the pollution exclusion clause of a comprehensive general liability policy, and, thus, the insurer has a duty to indemnify and defend the insured. After inhaling fumes from a faulty heating unit at an apartment building, one woman died and another was injured. The estate of the deceased sued the apartment building owner and manager, who, in turn, sued their insurer seeking defense and indemnification. The insurer claimed it did not have a duty to defend and indemnify the owner and manager. The court, however, holds that the insurer does have a duty to defend and indemnify the apartment building owner and manager. The policy at issue here never clearly excludes claims for deaths or injuries caused by residential carbon monoxide poisoning. Additionally, the genesis of the pollution exclusion does not support the notion that it was created to preclude the kind of claim involved in this case. Further, based on the history and original purposes for the pollution exclusion, it was reasonable for the apartment building owner and manager to believe that policies purchased would not exclude claims for injuries due to carbon monoxide leaks. The court, therefore, reverses the appellate court's finding in favor of the insurer.

The full text of this decision is available from ELR (16 pp., ELR Order No. L-412).

[Counsel not available at this printing.]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]