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Quadrant Corporation v. American States Insurance Company4/28/2005
Concurring: Barbara A. Madsen, Gerry L Alexander, Susan Owens, Mary Fairhurst
Dissenting: Faith Ireland, Charles W. Johnson, Richard B. Sanders, Tom Chambers
EN BANC
A tenant in an apartment building was overcome by fumes and became ill after a restoration company applied sealant to a nearby deck. The tenant sued the restoration company and the owners of the apartment building. Both the restoration company and the building owners settled and the owners now claim that their business liability insurance should cover the loss.
The business liability policies at issue here both contain absolute pollution exclusion clauses, which the insurers now argue apply to exclude coverage for the tenantRs claim. The building owners contend that after this courtRs decision in Kent Farms, Inc. v. Zurich Insurance Co., 140 Wn.2d 396, 402, 998 P.2d 292 (2000), the pollution exclusion cannot be applied to exclude occurrences that are not Straditional environmental harms.T The owners also assert that if it is applied as the insurers suggest, the pollution exclusion would render the policy illusory with regard to the restoration company.
We hold that the plain language of the absolute pollution exclusion clause encompasses the injuries at issue here and therefore the tenantRs claim is excluded from coverage. We find that the Kent Farms case is distinguishable on its facts and instead we adopt the reasoning of Cook v. Evanson, 83 Wn. App. 149, 920 P.2d 1223 (1996), a case similar to this one in that it involved injuries that resulted from toxic fumes. Furthermore, we conclude that the pollution exclusion clause does not render the policies illusory with respect to the building owners because the insurance policy will still cover a variety of claims, including slip and fall accidents, despite the pollution exclusion. We note that the restoration company is not a party to this case and, thus, the question of whether the insurance contract is illusory with respect to the restoration company is not properly before us. The insuredsR request for attorney fees is denied.
I. Statement of Facts
The facts of this case are not in dispute. Roy Street Associates owns an apartment building located at 200 Roy Street in Seattle. In 1996, the building owners hired Pacific Restoration to make repairs and improvements on the building. In the course of completing the repair work, Pacific Restoration applied waterproofing sealants to the surface of a deck. The parties agree that Pacific Restoration used PC-220 and Polyglaze AL, manufactured by Polycoat Products. Both contain various chemicals, including a toxic substance called toluene diisocyanate (TDI), whose fumes can irritate the respiratory tract and, in high concentrations, can cause central nervous system depression.
Delores Kaczor was a tenant in the apartment adjacent to the deck. Pacific failed to warn Kaczor that it would be applying the sealant and then failed to properly ventilate the area. Fumes entered her apartment as the deck dried, making her ill enough to require hospitalization.
Specifically, Kaczor's estate claimed that exposure to the fumes caused 'exacerbation of her pre-existing chronic obstructive pulmonary disease' and led to her 'debilitating and declining health.' Clerk's Papers (CP) at 175. Kaczor filed a lawsuit against Pacific Restoration and the building owners claiming personal injury and property damage. Kaczor died in 1998 and her lawsuit was dismissed without prejudice. In 1999, her estate filed a second lawsuit based on Kaczor's injuries. That suit was settled for $30,000 and dismissed in July 2000.
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