A Pennsylvania appellate court ruled that the absolute pollution exclusion bars coverage for carbon monoxide-related injuries. In Matcon Diamond, Inc. v. Penn National Ins. Co., No. 186 WDA 2002 (Pa. Super., Jan. 17, 2003), a policyholder was sued when its employee succumbed to carbon monoxide fumes while using a gas-powered tool in an enclosed workspace. The policyholder turned to its insurer for a defense, but the insurer denied coverage based on its pollution exclusion. The court agreed with the insurer, holding carbon monoxide constitutes a "poisonous gas," falling within the policy's exclusion for injury caused by exposure to "solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste." The court observed that the federal Clean Air Act and the Superfund Act designate carbon monoxide as a pollutant. According to the court, carbon monoxide is reasonably anticipated to cause death or physiological malfunction upon inhalation and, therefore, constitutes a pollutant or irritant excluded from coverage.
If you have any questions about Matcon Diamond or about any other insurance issue, please do not hesitate to contact any of the following attorneys in the Insurance Coverage Group at McCarter & English, LLP:
| Andrew T. Berry | Sherilyn Pastor | |
| Gita F. Rothschild | Arnold L. Natali | |
| Anthony Bartell | Gregory H. Horowitz | |
| Thomas W. Ladd | R. Nicholas Gimbel | |
| Louis A. Chiafullo | ||