The question of the month deals with the pollution exclusion in the standard homeowners policy. This exclusion specifically excludes claims involving pollutants unless the loss itself was caused by an insured coverage C peril, such as fire or lightning or windstorm. However, disputes between insureds and insurers over the application of the pollution exclusion seem to be never-ending. These disputes originate in a misunderstanding of the original intent of the pollution exclusion, and continue due to particular judicial interpretations of the exclusion's language. For an understanding of the HO pollution exclusion and an analysis of some court cases that have helped in defining the meaning and intent of the exclusion, link onto the designated article in the Bulletins.

One of the court cases cited in the Dec Page is from the Texas Supreme Court. This is a case wherein the Court defines “occupying” for auto coverage purposes in Texas and cites a variety of court rulings from around the country in order to help in defining that term.

The next cases deal with the Telephone Consumer Protection Act (TCPA) and unsolicited facsimile transmissions. The 9th U.S. Circuit Court and the 11th Circuit Court offer two examples of current judicial thinking on whether claims based on such transmissions are covered under the personal and advertising injury liability insuring agreement of the general liability policy.

A case decided by a South Carolina appeals court dealt with workers compensation and the issue of whether the injured party was in the course of employment at the time of the accident. The employee was attending a company meeting out of town, decided to sleep overnight at an out of town hotel after the meeting ended, and was killed in a fire that ravaged the hotel that night. Was the employee in the course of employment at the time of his death? The state WC commission thought so, but did the appeals court agree?

The final case is from New York and pertains to the issue of primary coverage versus excess coverage for a general contractor who was named as an additional insured on the subcontractor's liability policy.

Questions and Answers

A claim is denied because the roof was in such poor condition it could not be determined if hail had actually damaged it. The insured disagrees. Does the appraisal clause in an HO3 pertain to this kind of issue, or only to the amount of the claim payment? See Appraisal Clause Intent in Homeowners Policy. An insured purchases a property that has been vacant over sixty days. A week after the insured makes the purchase the property is damaged. Does the sixty-day vacancy exclusion apply in this situation? See Date of Purchase and Date of Vacancy.

The insured's three- and four-year-old children cause damage by coloring on the walls or breaking windows. Is this damage covered under the HO 3 policy? See Damage Caused by Insured's Children. Landscaping that was not damaged in the loss would be damaged in the repair of the dwelling. Wouldn't the cost to move the landscaping be considered mitigation expenses? See Mitigation Expenses Coverage.

Building and Personal Property Coverage Form

ISO introduced new forms to its commercial property program in 2007. The Building and Personal Property Coverage Form article has been updated to reflect changes made in the 2007 form, including new provisions for outdoor signs and party walls. See Building and Personal Property Coverage Form.