ANCHORAGE, Alaska (Legal Newsline) - An insurance company will be brought into a wrongful death lawsuit after the Alaska Supreme Court found carbon monoxide doesn't fall under a "pollutants" exception in its policy.
The U.S. Court of Appeals for the Ninth Circuit had asked for guidance on the issue from the Alaska court, which on Feb. 28 issued its ruling in the case over the death of Josiah Wheeler.
Wheeler was found dead in January 2019 in the bathtub of a cabin he rented in Tok. His parents sued Garrison Property and Casualty Insurance Company in Alaska federal court the following year.
A propane water heater in the house had no outside connection for its exhaust. Testing showed using the heater with the bathroom door shut would lead to high levels of carbon monoxide.
Garrison was the insurer for the cabin. Its policy excludes coverage for pollutants but only specified smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.
His parents reached a $1,680,000 settlement with the homeowners but Garrison refused to pay, citing the pollution exception. Years later, Justice Dario Borghesan wrote an insured could "reasonably expect" coverage for carbon monoxide injuries from an improperly installed home appliance.
"The literal terms of the pollution exclusion are broad, but the term 'pollutants' has a narrower connotation that is reinforced by the clauses addressing liability for monitoring and detoxification," Borghesan wrote.
"The specific exclusions for exposure to lead and asbestos, 'pollutants' that are commonly found within the home, supports an insured's reasonable expectation that harm from exposure to carbon monoxide, which is also often found within the home and causes no harm absent a defect or failure, is not an excluded harm."
Sections of the policy specified exceptions for lead paint and asbestos claims. This had a "significant effect" on how the insured would read the policy, the court found, saying those clauses lend support to a narrower interpretation of the pollution exclusion.
The decision reverses judgment entered for Garrison by federal judge Sharon Gleason in May 2022. She had written the pollution exclusion "unambiguously applies to the carbon monoxide at issue here."
The Complex Insurance Claims Litigation Association filed an amicus brief in the case in support of Garrison.