Mold, Fungi, Virus, Bacteria, Air Quality, Contaminants or Other Harmful Materials Exclusion in CGL Policy
Century Surety Co. v. Hallandale Beach Service Station, LLC, 2012 U.S. App. LEXIS 19648 (11th Cir. Sept. 19, 2012)
This case involves a coverage dispute with respect to injuries to workers at underground storage tanks at the insureds' gas station. Employees of a contractor hired to upgrade the underground storage tanks were injured in an explosion that resulted from fumes from a spillage of acetone. The employees brought suit against the owners of the gas station, which were insured on Century Surety's CGL policy. Century Surety contended that it had no duty to defend or indemnify its insureds because of the Mold, Fungi, Virus, Bacteria, Air Quality, Contaminants or Other Harmful Materials Exclusion and the Total Pollution Exclusion.
The Harmful Materials Exclusion applied to:
'Bodily injury' ... arising out of, caused by, or alleging to be contributed to in any way by toxic or hazardous properties of minerals or other substances.
Concluding that the injuries were contributed to "by a hazardous property (combustibility) of acetone (a substance)," the court held that the unambiguous exclusion applied and Century Surety had no duty to defend or indemnify its insureds. As coverage was excluded by the Harmful Materials Exclusion, the Eleventh Circuit did not address the application of the Total Pollution Exclusion.
