On March 9, 2017, the U.S. District Court for the District of Oregon issued its opinion and order in Colony Ins. Co. v. Victory Constr. LLC, et al., holding that carbon monoxide is a “pollutant” and, therefore, the pollution exclusion unambiguously bars coverage for harm caused by carbon monoxide. 2017 U.S. Dist. LEXIS 34368 (D. Or. Mar. 9, 2017).

In Victory, the underlying plaintiffs brought two lawsuits against Victory Construction (“Victory”) after carbon monoxide from a natural gas swimming pool heater filled their home, resulting in carbon monoxide poisoning. The plaintiffs alleged that Victory was negligent in the installation and ventilation of the heater and negligent in failing to warn of the risks of carbon monoxide poisoning associated with operating the heater in an insufficiently ventilated area.

The policy contained a “Hazardous Materials Exclusion,” barring coverage for “’[b]odily injury,’ … which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘hazardous materials’ at any time.” The policy’s definition of “hazardous materials” included “pollutants,” which was defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”

The parties brought cross-motions for summary judgment on the issue of whether Colony Insurance (“Colony”) had a duty to defend and indemnify Victory in the personal injury lawsuits. In granting Colony’s motion and denying Victory’s motion, the Court found that “the only plausible interpretation of the Policy’s terms results in the conclusion that carbon monoxide is a pollutant.”

The Court recognized the wide array of conflicting judicial decisions throughout the country regarding the scope of the pollution exclusion, but found that most decisions fall into “one of two broad camps.” Quoting the Ninth Circuit, the Court noted that some courts apply the pollution exclusion literally because they find the terms to be clear and unambiguous, but other courts have limited the exclusion to situations involving “traditional environmental pollution.” Since the parties did not cite, and the Court did not find, any Oregon case law providing guidance on the scope of the pollution exclusion or its application to carbon monoxide, the Court attempted to predict whether the Oregon Supreme Court would conclude that carbon monoxide is an “irritant” or “contaminant,” and, thus, a “pollutant” under the policy.

The Court strictly adhered to the rules of policy interpretation as set forth in Hoffman Constr. Co. of Alaska v. Fred S. James & Co. of Oregon, 313 Or. 464 (1992). The intention of the parties is determined by the terms and conditions of the policy, beginning with the wording of the policy, applying policy definitions and otherwise presuming that words have their plain and ordinary meaning. If the court finds only one plausible interpretation of the disputed terms, that interpretation controls.

Since the policy did not define “irritant” or “contaminant,” the Court ascertained their plain and ordinary meanings, relying on dictionary definitions. Based on its plain meaning analysis, the Court concluded that carbon monoxide is either an “irritant” (substance that irritates or stimulates an organ) or “contaminant” (undesirable element whose introduction makes an environment unfit for use) and, therefore, is a “pollutant” under the policy.

The Court declined to address Victory’s contentions that the pollution exclusion should apply only to “traditional environmental pollution,” or that the Court should consider the reasonable expectations of the policyholder. “The Policy, as written, does not create any ambiguity that would lead this Court to believe that the Oregon Supreme Court would look outside the plain meaning of the Policy’s terms.”

This is the first reported decision to predict whether the Oregon Supreme Court would apply the absolute pollution exclusion outside the context of “traditional environmental pollution.” It remains to be seen whether Oregon state courts will follow the District Court’s lead.