In Westport Ins. Corp. v. VN Hotel Group, LLC, 761 F. Supp. 2d 1337 (M.D. Fla. 2010), the United States District Court for the Middle District of Florida held that a general liability carrier had a duty to defend its insured in connection with a wrongful death lawsuit arising out of a hotel guest’s exposure to Legionella bacteria. Among other things, the court held that such bacteria did not fall within the policy’s pollution exclusion. More recently, in its decision Westport Ins. Corp. v. VN Hotel Group, LLC, 2011 U.S. Dist. LEXIS 117215 (M.D. Fla. Oct. 11, 2011), the court considered joint motions for summary judgment as to whether the insurer had a duty to indemnify with respect to such claims.
The insurer, Westport, argued that Legionella bacteria qualifies as a contaminant for the purpose of its policy’s pollution exclusion. While the court rejected this very argument in its prior ruling, Westport argued that reconsideration was warranted based on recent decisions by the Eleventh Circuit Court of Appeals in Maxine Furs, Inc. v. Auto-Owners Ins. Co., 426 F. App’x. 687 (11th Cir. 2011) (holding that curry aroma constituted a contaminant for the purpose of a pollution exclusion) and the Middle District of Florida in Markel Ins. Co. v. Florida West Covered RV & Boat Storage, LLC, No. 8:09-cv-2427-T-27TGW (M.D. Fla. Mar. 9, 2011), aff’d, 2011 U.S. App. LEXIS 16552 (holding that pollution exclusion applied to bacterial infection caused by millings from roadwork). The Westport court nevertheless distinguished both cases on the basis that neither involved bacteria. Bacteria, explained the court, are living organisms not readily classified as solid, liquid, gaseous or thermal substances as required by the policy’s pollution exclusion. Accordingly, the court reiterated its prior ruling that the pollution exclusion did not apply to the underlying suit.
The Westport court also revisited its prior ruling on the policy’s Fungi or Bacteria exclusion, which by its title alone seemed applicable to a claim arising out of exposure to Legionella bacteria. The exclusion, however, applied only to “… bacteria on or within a building or structure, including its contents … .” The underlying plaintiff was exposed to Legionella bacteria while in the hotel’s spa tub. The court held that a spa tub did not qualify as a “structure,” which the court defined as “an edifice or building of any kind.” The court further held that even if the spa tub could qualify as a “structure” for the purpose of the Fungi or Bacteria exclusion, the exclusion had an exception for bacteria “that are, are on, or are contained in, a good or product intended for bodily consumption.” The court reasoned that the term “consumption” in this exclusion was not limited to actual ingestion, but instead meant “the utilization of economic goods in the satisfaction of wants.” Thus, explained the court, the underlying plaintiff had consumed the hot tub water not in the sense of drinking it, but “to satisfy a desire or want.” As such, the court held that the exception to the exclusion was applicable even if the tub could be considered a structure.