This environmental coverage action involved a Church pastor and his wife’s exposure to carbon monoxide from the Church’s heating system resulting in the death of the pastor, and the court’s interpretation as to the application of the policy’s pollution exclusion. Specifically, the insurer commenced a declaratory action seeking a determination that the policies’ pollution exclusions precluded any duty to defend or indemnify the Church with respect to the pastors’ estates’ claims and issued a reservation of rights denying coverage on the basis of those exclusions.
Notably, the claimants disclosed their intent to have a chemist testify as an expert witness regarding whether carbon monoxide is an “irritant” or “contaminant.” The insurer moved in limine to exclude the chemist’s testimony and then later moved for summary judgment. The district court granted both motions, concluding that the pollution exclusions were unambiguous, that carbon monoxide was a “pollutant” as defined by the policies, and that the claimants’ claims were not covered under the plain terms of the policies.
On appeal, claimants argued that the pollution exclusions were ambiguous because the terms “irritant” and “contaminant” as used in the definition of “pollutant” were ambiguous. In affirming the district court, the appellate court relied the Nebraska Supreme Court ruling in Cincinnati Ins. Co. v. Becker Warehouse, Inc. 262 Neb. 746 (2001) which interpreted a standard pollution exclusion. Significantly, there the Nebraska Supreme Court concluded that although the pollution exclusion was “quite broad” it was unambiguous and was not limited to traditional environmental damage. The holding further noted that it recognized that the “majority of state and federal jurisdictions have held that absolute pollution exclusions are unambiguous, as a matter of law, and thus, exclude coverage for all claim alleging damage caused by pollutants.”
The claimants attempted to distinguish Cincinnati, and contested denial of the motion in limine granting the insurer’s motion to exclude the testimony of their expert witness regarding whether carbon monoxide is an “irritant” or “contaminant.” The court held that the district court did not abuse its discretion in excluding the testimony of claimant’s expert and affirmed the ruling on the applicability of the exclusion to preclude coverage under the terms of the policy. Thus, the release of carbon monoxide was deemed to fit within the exclusion and constituted traditional environmental contamination consistent with the majority of jurisdictions.
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