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The Rough Notes Company Inc.



September 28
07:20 2021

Grandma’s meth lab

Annette Vogelsang maintained a homeowners policy underwritten by The Travelers Home and Marine Insurance Company on her house in Sunset Hills, Missouri. Her grandson, James Vogelsang, resided with her from 2016 to 2018. On November 9, 2017, the Sunset Hills Police Department executed a search warrant at Annette’s house and discovered liquid and solid methamphetamine in the basement. James was subsequently arrested for possession and distribution of methamphetamine.

The St. Louis County Public Works Department posted an order to vacate on Annette’s house. The order required testing to determine whether the house was contaminated and, if so, mandated the house to be decontaminated before it could be reoccupied. Subsequent testing confirmed the presence of methamphetamine throughout the house.

On November 20, 2017, Annette submitted a claim to Travelers for the costs to remove the methamphetamine contamination in her house. In the course of Travelers’ investigation, James admitted during an interview that he was aware of the methamphetamine use in Annette’s house.

Travelers denied Annette’s claim because her policy did not provide coverage for “[t]he costs to comply with any ordinance or law which requires any ‘insured’ or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, pollutants in or on any covered building or other structure.” It defined pollutants as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” The policy also contained an exclusion with the same language. Additionally, the policy excluded “any loss arising out of any act an ‘insured’ commits or conspires to commit with the intent to cause a loss. In the event of such loss, no ‘insured’ is entitled to coverage, even ‘insureds’ who did not commit or conspire to commit the act causing the loss.”

On May 24, 2018, Annette filed a petition in St. Louis County Circuit Court alleging that Travelers breached the policy and vexatiously refused to pay. Travelers’ answer argued, among other things, that the policy did not cover Annette’s claim because the losses were costs of complying with an ordinance or law requiring an insured to test for and clean up the effects of pollutants.

On September 30, 2020, Travelers moved for summary judgment, arguing that there was no coverage under the ordinance and law provisions and asserting that the intentional acts exclusion applied. On December 2, 2020, the trial court granted Travelers’ motion. Annette appealed.

Annette raised three points on appeal. She argued that the trial court erred in granting Travelers’ motion for summary judgment because: (1) there was coverage under the ordinance and law provisions of the policy in that the ordinance at issue did not require a cleanup and that the substance at issue was not a pollutant; (2) the intentional acts exclusion did not apply in that no insured committed an act or did anything relevant to the issues in this suit; and (3) the vexatious refusal claim is an issue for a jury, not summary judgment. The appellate court found the lack of coverage in Point 1dispositive and said it need not address Annette’s second and third points.

Annette argued that the trial court erred in granting summary judgment because there was coverage under the ordinance and law provisions of the policy. She asserted that the ordinance at issue did not require a cleanup, and that methamphetamine was not a pollutant.

The policy does not cover the costs of complying with an ordinance or law that requires an insured to remediate pollutants in a covered building. Annette asserted that methamphetamine does not fall under the policy’s definition of a “pollutant.”

The policy does not define “contaminant” as used in the definition of “pollutant.” Merriam-Webster defines a “contaminant” as “something that contaminates.” The appellate court found that methamphetamine falls within the ordinary meaning of a “contaminant” because it is a substance that makes a house “unfit for use by the introduction of unwholesome or undesirable elements.” Indeed, the public works department determined that Annette’s house was unfit for human occupation because of the presence of methamphetamine. Because methamphetamine is a contaminant, it meets the policy’s definition of a “pollutant.”

The remaining issue was whether the order to vacate required Annette to remediate the pollutant in her house. Annette argued that the order required her to remove the methamphetamine only if she sought to reoccupy her house. She asserted that because she was not required to reoccupy her house, she accordingly was not actually required to clean up the methamphetamine.

The appellate court cited a section of the St. Louis County Property Maintenance Code that makes it unlawful to enter a structure that is an “imminent danger” except for the purpose of securing the structure, making required repairs, removing the hazardous condition, or demolishing the structure.

The court found that the order to vacate did not mean that Annette was not required to clean up the methamphetamine. In fact, it was a requirement to clean up the methamphetamine.

The judgment of the trial court was affirmed.

Vogelsang v. The Travelers Home and Marine Insurance Company—Missouri Court of Appeals for the Eastern District—No. ED109377—June 29, 2021.

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