Saturday, September 19, 2009

Nebraska Supreme Court affirms summary judgment in favor of heating repair business's liability and umbrella insurer against personal representative of decedents who died of carbon monoxide poisoning from allegedly faulty heating repairs. Harleysville Ins. Group v. Omaha Gas Appliance Co., S-07-1235, 278 Neb. 547 . The Douglas County District Court ruled in favor of insurer Harleysville did not owe liability and umbrella coverage for carbon monoxide poisoning that resulted from faulty heating repairs. The estate appealed. While the Supreme Court agrees that the estate could intervene in the action and did not expand the issues therein, it agrees that the policy "pollution" exception covered injuries from carbon monoxide poisoning. "(Personal Representative had) standing to bring this appeal and to present the arguments that she makes. PR was a proper party defendant to Harleysville’s declaratory judgment action alleging that it had no duty in relation to the alleged incident that killed the decedents. While PR presented somewhat different assertions as to why the policy should cover the incident, those did not interject any factual or legal questions extraneous to the action. As to whether the CO2 poisoning would be covered, the Court states "we need not engage in PR’s extensive semantic discussion of whether the isolated phrase referring to "liability caused by pollutants" refers solely to legal obligations stemming from the pollutants themselves without any human causal element The umbrella policy, like the general liability policy, excluded coverage for liability occasioned by the release of pollutants—regardless of what level of human culpability was involved"(emphasis supplied).

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