Supreme Court Addresses Coverage For Hacking
Thomas Todd and Sally Leonard were both members of the paddling committee of the New Hampshire Chapter of the Appalachian Mountain Club. They had a tiff about Todd’s participation in a paddling event. Sally voiced for opinion that he should not be allowed “due to his history of aggressive behavior toward females.” Todd responded by hacking Sally’s computer and breaking her car’s window. Sally filed a stalking action. Todd sought coverage from his homeowner’s insurer. The Supreme Court of New Hampshire, in Todd v. Vermont Mutual Ins. Co., No. 2015-0233 (N.H. Apr. 7, 2016), held that hacking a computer and shattering a car window were not accidents. Next the court turned to the possibility of personal injury coverage for “invasion of private occupancy.” Here too the court said no can do to coverage, concluding that “invasion of private occupancy” applies to claims involving an interest in real property – which hacking a computer is not.

Court Holds That Moth Balls Are A Pollutant
The seemingly odd substances that courts have found qualify as a “pollutant,” for purposes of a “pollution exclusion,” are legion. There are fireworks, ejaculate, deli odors, curry odor, swine waste odors, flies and insects, bat guano and no doubt others. Now add mothballs and mothball fumes to the list. Without any analysis, except to cite to a Texas Supreme Court case giving the pollution exclusion a broad interpretation, the court in United Fire & Cas. Co. v. Condeb, L.P., No. 14-150 (E.D. Tex. Feb. 22, 2016) held that the pollution exclusion precluded coverage for bodily injury caused by exposure to mothballs and its fumes.

Always A Good Reminder
It is easy to jump right to a potentially relevant exclusion when addressing coverage. But that is putting the cart ahead of the horse. There was a good reminder of this in Miller v. Mardak, No. 2015AP206 (Wis. Ct. App. Apr. 5, 2016): “In determining whether there is a duty to defend, the court first considers whether the insuring agreement makes an initial grant of coverage—i.e., whether the insurer has a duty to defend its insured—for the claims asserted. If the court determines that the policy was not intended to cover the claims asserted, the inquiry ends. . . . Only after concluding that coverage exists does the court examine the policy’s exclusions to determine whether they preclude coverage. In other words, when a court determines that there is no coverage in the policy for the allegations in the complaint, it is not necessary to interpret the policy’s exclusions.” (citations omitted).