Total Pollution Exclusion Precluded Coverage, Ohio District Court Decides

A federal district court in Ohio has ruled that a total pollution exclusion in a commercial general liability (“CGL”) insurance policy precluded coverage for the costs of cleaning up Lake Erie after roofing tar had escaped from a roof and flowed into the lake.

The Case

Ronald L. Myers and his sole proprietorship, Myers Recycling and Painting, were sued by a client who alleged that Myers’ negligence had caused roofing tar to escape from a roof and flow into Lake Erie.

Myers asked Mesa Underwriters Specialty Insurance Company, the insurance company that had issued Myers a CGL insurance policy, to defend the suit, but Mesa refused.

Mesa then sought a declaratory judgment stating that it had no duty to defend or indemnify Myers. The parties moved for summary judgment.

The District Court’s Decision

The district court granted Mesa’s motion, ruling that the policy’s total pollution exclusion precluded coverage.

In its decision, the district court explained that a reasonable jury only could conclude that the roofing sealant was a “pollutant” and that its escape from the roof and its release into Lake Erie had caused the damages claimed by Myers’ client.

The district court reasoned that the sealant was “harmful or fatal if swallowed,” that its manufacturer had urged “immediate” action in the event of a spill, and that Myers and his crew had donned protective gear when they had applied the sealant. The district court added that the pollutant had escaped from or had seeped off the roof and had flowed into Lake Erie, and that the damages sought by Myers’ client were the costs it had incurred cleaning up the sealant after it made its way into the lake.

Accordingly, the district court concluded, the total pollution exclusion relieved Mesa of any obligation to defend Myers against this claim.

The case is Mesa Underwriters Specialty Ins. Co. v. Myers, No. 3:14CV2201 (N.D. Ohio Aug. 16, 2016).