A federal appeals court upheld a lower court decision in Liberty Mutual Insurance Co.’s entity favorite on Tuesday, ruling that the insurer does not have to reimburse a plaintiff who became ill after inhaling silica sand, based on a policy exclusion.
Philip Mauro became ill while working as a construction supervisor on a job site with Philadelphia-based Diamond Contact Flooring LLC, at the Philadelphia Airport Marriott, according to the ruling by the 3rd US Circuit Court of Appeals in Philadelphia in Philip Mauro, as Assignee for Diamond Contract Flooring, LLC v. Ohio Security Insurance Co.
After he was treated for chronic obstructive pulmonary disease, Mauro Diamond sued in state court, claiming that the company̵7;s use of Novoplan Easy Plus to smooth the concrete floor caused his illness.
Diamond sought coverage from Liberty Mutual unit Ohio Security, which refused to provide a defense citing a policy exclusion that excluded coverage for injuries arising from the inhalation of “silica” or “silica-related dust.”
Diamond then assigned his right under the policy to Mr. Mauro. Mauro won a $375,000 award against Diamond and then sued Ohio Security.
The United States District Court in Philadelphia ruled in Ohio Security’s favor and was affirmed by a three-judge court panel. “The main dispute concerned an issue of contractual interpretation: whether silica sand – the only silica product listed on Novoplan’s safety data sheet – is covered by the exemption” in the policy for silica or silica-related dust.
On the same page as the exclusion, the policy defines “silica” as “silica … silica particles, silica dust, or silica compounds” and defines “silica-related dust” as “a mixture or combination of silica and other dust particles,” the ruling said, concluding that the district court ” correctly held that the exclusion unequivocally precluded coverage for Mauro’s injuries arising from silica sand.”
Attorneys in the case did not respond to requests for comment.
In May, a federal appeals court upheld a lower court’s ruling in favor of an Iowa reinsurer in a dispute with a Munich Re unit over cleanup and property damage related to construction that created silica dust.