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Lauren S. Curtis, Traub, Lieberman Staus & Shewsberry LLP, St. Petersburg, FL, representing Century Surety Company, obtained summary judgment in a federal declaratory judgment action involving interpretation of an indoor air exclusion. The declaratory action concerned an underlying wrongful death claim over the death of an employee of an auto body shop who allegedly died from carbon monoxide poisoning when he fell asleep in a customer’s vehicle while working after hours. The complaint alleged that while the decedent was in the course and scope of his employment, he fell asleep in the car with the ignition running and “ultimately died from carbon monoxide poisoning.”

Century issued a commercial garage liability policy to the auto shop. The insurance policy excluded injuries to employees arising out of and in the course of employment (“the employer’s liability exclusion”), and injuries arising out of toxic or hazardous qualities or characteristics of indoor air (“the indoor air exclusion”). In the coverage case, Lauren moved for summary judgment on the ground that the allegations of the complaint fell squarely within both exclusions. As to applicability of the indoor air exclusion, she argued that carbon monoxide is indisputably a hazardous or toxic substance based on standard dictionary definitions, which define carbon monoxide as a “poisonous gas” and a “toxic gas.”

The federal district court granted the summary judgment motion based on the indoor air exclusion, finding the language of the exclusion to be plain and unambiguous. The court stated: “The policy language here is plain and unambiguous – based on the pleadings, the Indoor Air exclusion applies: The alleged injuries arose out of a toxic and hazardous substance that was a characteristic of the indoor air.” Accordingly, the court held that Century had no duty to defend as a matter of law, and thus no duty to indemnify, with respect to the wrongful death claim.

 



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