Mr. Rodriguez asserted that, after he and his sons were discharged from the hospital, they returned to the Mechkovas' property and “determine[d] that the poisonous gases were leaking from appliances within [the property].”

According to Mr. Rodriguez, Philadelphia Gas Works visited the property, deemed the heater unsafe, and instructed the Mechkovas to replace the heater and gas lines within the property.

The Rodriguezes sued the Mechkovas for negligence in a Philadelphia court.

The Mechkovas sought coverage from Foremost Insurance Company under a policy issued by Foremost to Tatiana Mechkova.

Foremost went to court, seeking a declaration that, based on the pollutant exclusion in its policy, it owed neither a duty to defend nor a duty to indemnify the Mechkovas for the Rodriguezes' lawsuit.

The Rodriguezes and the Mechkovas moved to dismiss.

The Foremost Policy

The Foremost policy provided that Foremost would not pay for bodily injury or property damage:

[a]rising out of the actual, alleged or threatened discharge, dispersal, release, escape of, or the ingestion, inhalation or absorption of pollutants.

The policy defined pollutant as:

any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, metals, lead paint components and compounds, and waste. . . . However, irritants and contaminants released by accidental fire on [the insured's] premises are not a pollutant.

The District Court's Decision

The district court denied the motions to dismiss.

In its decision, the district court reasoned that the Mechkovas had an insurance policy with Foremost that covered damages for bodily injury on the property, but the policy contained a pollutant exclusion, and the Rodriguezes rented the property from the Mechkovas and allegedly suffered bodily injury: gas poisoning. Therefore, the district court continued, Foremost's duty depended on whether the substance that allegedly poisoned the Rodriguezes was a pollutant.

The district court ruled that, based on the Rodriguezes' complaint, the specific substance at issue was carbon monoxide. It noted that although the Rodriguezes “attempt[ed] to recast” their allegations by arguing that they were poisoned by “a buildup of [n]atural [g]as,” they never mentioned “natural gas” in their complaint and only alleged suffering from exposure to carbon monoxide and carbon monoxide poisoning.

The district court observed that although carbon monoxide was not expressly included in the policy's definition of pollutant, courts had interpreted similar pollution exclusion provisions and concluded that carbon monoxide was “unambiguously a pollutant.”

The district court reiterated that the Rodriguezes only alleged suffering from exposure to carbon monoxide and carbon monoxide poisoning and it therefore concluded that Foremost had stated a claim for relief that it had neither a duty to defend the Mechkovas nor the narrower duty to indemnify the Mechkovas.

The case is Foremost Ins. Co. v. Rodriguez, No. 19-360 (E.D. Pa. July 11, 2019). Attorneys involved include: For FOREMOST INSURANCE COMPANY, Plaintiff: JAMES H. COLE, CONRAD J.J. RADCLIFFE, LEAD ATTORNEY, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PHILADELPHIA, PA. For MIGUEL G. RODRIGUEZ, Defendant: DAVID SAMUEL JAFFE, FREUNDLICH & LITTMAN, LLC, PHILADELPHIA, PA. For TATIANA MECHKOVA, Defendant: JONATHAN WHEELER, LAW OFFICES OF JONATHAN WHEELER PC, PHILADELPHIA, PA.