Given the voluminous body of case law addressing the applicability of the pollution exclusion, it is not often to see one that addresses a case of first impression. But Florida Farm Bureau Gen. Ins. Co. v. Worell, No. 5D21-3196 (Fla. Ct. App. April 28, 2023) – addressing whether blood is a pollutant – gets that nod. [Based on my research, barring some state trial court case not included on Lexis, Worell is the first decision to address this issue.]
It's a gorgeous Saturday morning here in the Philadelphia suburbs, and I want to get to the bagel store while they still have sesame, so I’ll save time and set out the facts verbatim:
“Laurance Anton, while intoxicated and apparently injured, wandered uninvited onto the Worrells’ residential property. After Anton, an individual who did not reside at the Worrells’ residence and was unrelated to them, broke into their shed, he left behind blood and what seemed to be feces. Anton was later found dead outside of a neighboring home. Anton was determined to have died accidentally from a blunt force injury to his head resulting from a fall.”
Ultimately, the Worrells contracted with Accident Cleaners and Restoration to clean their shed. The cleaning company filed a claim for compensation with Florida Farm Bureau, which denied the claim. Florida Farm Bureau concluded coverage for the restoration expenses was excluded by the insurance policy’s pollution exclusion provision.”
The Worrell’s filed suit and the trial court found in their favor and awarded a little over $4,000. The insurer appealed. [You don’t see too many appeals over a $4,000 award.] While the case involves a property policy, the pollution exclusion at issue is very similar to a total pollution exclusion contained in a general liability policy. Thus, I see the decision being relevant in the CGL context.
The appeals court affirmed: “A fair reading of the exclusion provision leads us to conclude that the blood left at the Worrells’ residence by Anton’s unlawful entrance onto their property is not a ‘Pollutant’ as defined by the policy’s exclusion provision—that is, blood is not ‘any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.’ Indeed, blood is materially different from any of the substances listed to illustrate that which constitutes a ‘pollutant.’ Further, blood does not meet the definition of ‘waste,’ as blood plainly is not a material to be ‘recycled, reconditioned or reclaimed.’”
Florida is in the category of states that apply the pollution exclusion broadly, i.e., not just to traditional environmental pollution. But the court did not address that body of case law in reaching its decision. It stuck to the policy language. In fact, the court cited to the unambiguous nature of the pollution exclusion -- that allows it is apply to non-traditional pollution – as the basis for why it did not apply here.
Obviously, as this is seemingly the first case to address the issue, it is not likely to arise too often. Despite this decision, I do not believe that the issue is dead in a state that applies the pollution exclusion broadly. |