An insurer is not obliged to defend a construction company in a case involving hazardous fumes and dust because "there is no ambiguity". Its policy is the exclusion of pollution applied, a federal appeals court ruled Thursday to confirm a lower court. Lansing, Michigan-based Southern Owners Insurance Co., issued a general commercial liability to Shalimar, Florida-based BBG Design Build LLC, which ran from July 2014 to July 2015 and included an exclusion of contaminants under the decision of the 11th U.S. District Court of Appeals. in Atlanta and BBG Design Build, LLC, Patricia Armor v. Southern Owners Insurance Co.
In 2014, BBG worked as the main contractor on a renovation project in Shelter House, a domestic violence resource center in Ft. Walton Beach, Florida, when Ms. Armor, a victim of a lawyer who worked part-time at the facility, is alleged to have suffered bodily harm from construction debris.
She handed in the suit, charged BBG was negligent as it failed to ensure property control and protection was in place to contain "building debris."
Southern owners refused to defend or defend BBG because of its policy of exclusion of pollutants. BBG sued the insurer for breach of contract, and the U.S. District Court in Tallahassee, Florida, granted the insurer a summary judgment dismissing the case.
The verdict was upheld by a unanimous three-judge appeals court panel. "If we limit our analysis to the allegations in the operational first amended complaint, southern owners had an obligation to defend BBG in Armor's underlying suit," the decision said.
But "in special cases, a court may consider extrinsic facts if those facts are undisputed and if they had been made in the complaint, they would obviously have placed claims outside the scope," the decision said, referring to an earlier case.
" Before Armor filed the first amended complaint, Southern owners had knowledge of the preoccupation of unconverted facts that placed Armor's claims beyond the scope of policy coverage, "it said.
A" pre-requisite "package from Ms Armor's lawyer said she was injured after being "exposed to hazardous fumes and dust" due to BBG's remodeling activities at Shelter House, it said.
The package also referred to Ms Armor's medical records, where she reported that she had been exposed to fiberglass and was diagnosed with bronchitis from exposure to fiberglass, it said.
Based on these claims, which were confirmed by Ms Armor's medical records, "Southern owners were aware that Armor was claiming bodily harm that would not have occurred in whole or in part but for alleged release or refugee of contaminants," it said.
Pointing to the policy's exclusion of pollutants, the Appeals Panel said, 'We agree with the district court that there is no ambiguity in the exclusion of the policy, and it clearly includes building debris of the kind that Armor complained about ̵
"Thus, this case is one of the rare cases where unconverted facts put the claim beyond the scope of the coverage, and the first amended complaint is an attempt to bring coverage despite the unconverted facts," the Appeals Panel said to confirm the lower court's judgment.
"They made the right decision," said Southern Owners Lawyer Gregory M. Shoemaker from Wade Palmer & Shoemaker PA in Pensacola, Florida. "It was a case where it was very clear to everyone from the beginning that this exclusion applied."
BBG's lawyer did not respond to a request for comment.
A federal appeals court ruled last month that a Chubb Ltd entity was not required to defend a construction operator that was sued in connection with spraying of pesticides because of its coverage excluding contamination.