This is a continuation from the last blog on this subject – “The Pollution Exclusion:  A Crack Appears In The Chinese Drywall Litigation”.  We’re in agreement with the author of the articles, Gary E Mason from the Mason LLP law Firm Chinese Drywall Blog, that this legal finding could be an important step towards insurance relief for homeowners with Chinese drywall.  For those homeowners, this finding could represent a very small light starting to build at the end of the tunnel.  Only time will tell the true precedent-setting value of this finding for other Chinese drywall lawsuits. 

For additional information on Chinese drywall, please visit the following Chinese drywall resources:

Tampa Chinese Drywall Video Series – The video series walks step-by-step through and entire Chinese drywall remediation project.  It also covers other issues homeowners should consider before beginning a remediation project.

Tampa Chinese Drywall Blog – The blog focusses on those issues directly relevant to any homeowner with Chinese drywall.

 

Tampa Chinese Drywall Twitter Feed – This twitter feed also focuses on those issue directly relevant to homeowners with Chinese drywall.  The blog contains more in-depth information while the twitter feed contains the more timely issues relating to Chinese drywall.

The Pollution Exclusion: Is The Crack In Chinese Drywall Widening

Last week’s opinion in Auto Owner’s relied in part on an unpublished opinion from late last year –Scottsdale Ins. Co. v American Safety Indem. Co., No. 1:10-cv-00445-WS-N (S.D. Ala.., Nov. 10, 2010).  Scottsdale, like Auto-Owners, held that the Pollution Exclusion did not apply because the pollution release did not occur while the contractors were performing operations.  The main difference between the two cases appears to be that Scottsdale arose from a coverage dispute between a builder and its a carrier while Auto-Owners involved a coverage dispute between a builder and the carrier for its subcontractor, for which policy the builder was listed as an additional insured.  This important case, which together with Auto-Owners, may well signal the eventual demise of the pollution exclusion in the CDW litigation, can no longer be overlooked.

Both Auto-Owners and Scottsdale implicate identical provisions which the courts find did not work to exclude coverage for the same reason –  the release of pollutants did not occur (in whole or in part) during the time in which the insured was “performing operations.”  As the Court stated in Scottsdale:

A reasonable interpretation of the plain words found in subsection f.(1)(d)(i) is that the release of pollutants and the insured’s performance of operations must occur contemporaneously for the Pollution Exclusion to apply. After all, the Pollution Exclusion is not worded to bar coverage for losses from pollutant releases at locations where the insured or its contractors “are performing or have previously performed operations,” but instead only excludes losses from pollutant releases at locations where the insured or its contractors “are performing operations.” That distinction may be critically  important here. The Underlying Actions appear to relate, at least in part, to pollutant discharge from Chinese drywall occurring long after Mitchell’s operations at the construction site subsided.

Could this be a harbinger of the day when insurance carrier’s will start indemnifying builders and suppliers of CDW for the claims of homeowners?  We think so.

The Pollution Exclusion: Is The Crack In Chinese Drywall Widening

Charter Bay Home Builders is a full-service Tampa Chinese Drywall Remediator, Remodeler, and Custom Home Builder working throughout the greater Tampa Bay area including Hillsborough, Pinellas, Pasco, Hernando, Manatee, and Sarasota.  Charter Bay can help with your Chinese Drywall Problems and Remediation, Additions, Kitchen Remodeling, Bath Remodeling, Renovation, Remodeling, Home Design, Cabinets, Design Build, and Custom Home Building needs.

In addition, as one of the few Tampa custom home builders, or remodelers, with multiple green building and green remodeling certifications (FGBC Certifying Agent and NAHB Certified Green Building Professional), Charter Bay can also assist those clients who want green features and sustainable building practices incorporated into their projects.

Visit our website – www.CharterBayHomes.com – today to learn how “The Charter Bay Way” delivers:

“Yesterday’s Values • Today’s Technology • Tomorrow’s Vision”

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