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THE AIR THAT I BREATHE

THE AIR THAT I BREATHE

February 25
06:54 2021

The air that I breathe

Hawley resided in a rental property owned by Gary Rogowski. Hawley informed Rogowski that Hawley smelled natural gas in the residence. Twelve days later a technician from NW Natural, a natural gas company, was dispatched to the residence. The technician noted that the odor of natural gas was immediately evident upon entering the premises. The technician also noted that his gas meter indicated an alarm for carbon monoxide, and that a subsequent test for carbon monoxide indicated levels of 4,000 parts per million at the gas furnace and hot water heater. The technician recommended immediate action.

The next day a technician from AAA Heating and Cooling came to the residence and observed that the exhaust duct of the furnace was plugged by debris in the chimney and that the furnace had been improperly modified. Hawley’s complaint alleged that a chimney technician subsequently removed over 80 pounds of debris from the chimney that had been blocking the furnace and hot water heater exhaust outlets. That technician also noted that the HVAC system was not working well.

Hawley filed a complaint against Rogowski. Hawley alleged that Rogowski was aware of the furnace problems and had disconnected the smoke detector and/or carbon monoxide detector in the residence. The complaint alleged that the defects in the HVAC system caused Hawley serious health concerns by exposing him to degraded indoor air quality and long-term carbon monoxide emissions and poisoning. The complaint also alleged that Rogowski was negligent in failing to provide and maintain properly functioning HVAC equipment.

Rogowski was insured under a landlord protection policy with Safeco Insurance Company of Oregon.

The premises liability section of the policy contained an exclusion for liability arising in whole or part out of the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, escape, emission, transmission, absorption, ingestion, or inhalation of pollutants at any time. This included any loss, cost, or expense arising out of any:

“(1) request, demand or order that any insured or others test for, monitor, abate, clean up, remove, contain, treat, detoxify, neutralize, or in any way respond to, or assess, the effects of pollutants; or

“(2) claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, or in any way responding to, or assessing, the effects of pollutants[.]”

Rogowski tendered the Hawley lawsuit to Safeco for defense under the policy. Safeco denied coverage. Rogowski then filed suit for breach of contract, seeking money damages for his defense costs and a declaratory judgment that Safeco had a duty to defend him against Hawley’s complaint.

Safeco filed a motion for summary judgment, asserting that it had no duty to defend Rogowski because Hawley’s complaint fell outside of the policy. Safeco argued that Hawley claimed injury from carbon monoxide, which was expressly excluded under the “pollutant” exclusion. Rogowski filed a cross-motion for partial summary judgment. Rogowski conceded that any injury from carbon monoxide was excluded under the pollutant exclusion, but Rogowski argued that the complaint could reasonably be read to allege injury from “natural gas” and “degraded indoor air quality,” neither of which was excluded.

The court ruled that Safeco had a duty to defend Rogowski. The court concluded that, although bodily injury caused by exposure to carbon monoxide was unambiguously excluded from coverage by the pollutant exclusion, the policy was ambiguous as to whether degraded indoor air quality and natural gas were also excluded as pollutants. Construing the ambiguity against the insurer, the court concluded that the policy could reasonably be understood to cover bodily injury as a result of degraded indoor air quality and exposure to natural gas. The court therefore ruled that Safeco owed Rogowski a duty to defend. Safeco appealed.

On appeal, the court said that if the complaint can reasonably be interpreted to allege any basis that would fall within the policy coverage, the insurer owes a duty to defend.

The court found that the complaint could reasonably be understood to allege a theory of degraded air quality based on reduced oxygen levels that was not dependent on the presence of carbon monoxide or other pollutants, irritants, or contaminants.

Because the complaint alleged conduct that was covered by the policy, and because at least one plausible interpretation of the policy’s pollutant exclusion did not exclude that conduct, the court held that Safeco had a duty to defend Rogowski. The judgment of the trial court was affirmed.

Rogowski v. Safeco Insurance Company of Oregon—Court of Appeals of Oregon—No. A169063—September 16, 2020.

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