Sick Building Syndrome: Airing insurance coverage issues arising from this new wave of toxic tort litigation

[Guest guest]

Federation of Insurance & Corporate Counsel Quarterly

Spring 1999 - Vol. 49

Sick Building Syndrome: Airing insurance coverage issues arising from this

new wave of toxic tort litigation

By T. Lucey

I.INTRODUCTION

I considered (fresh air) an enemy, and closed with extreme care every

crevice in the rooms I inhabited. Experience has convinced me of my error. I

now look upon fresh air as a friend: I even sleep with an open window. I am

persuaded that no common air from without is so unwholesome as the air

within a close(d) room that has been often breathed and not changed.2

- lin

Perhaps inspired by lin's prescient observation, an increasing

number of cases are being filed with a common claim: that the air in the

buildings in which we work and live can make us sick. The ailment has been

dubbed " Sick Building Syndrome " ( " SBS " ), and commentators predict that

litigation involving SBS and associated claims will proliferate in the

coming years.3

There appear to be two main causes of SBS. The first is microbial

contamination which occurs as a result of bacterial or fungal growth.4

Microbes breed in areas of excessive moisture, which may be caused by

improper drying during construction or improper design and maintenance of

the heating, ventilation and air conditioning ( " HVAC " ) system in a building.

The second primary cause of SBS is the organic gases which are discharged

during the evaporation and decomposition of volatile organic compounds

( " VOCs " ).5 VOCs are found in synthetic products such as furniture,

carpeting, paints and cleaning supplies.

The physiological effects of SBS are numerous. The World Health Organization

has identified " eight noninclusive symptoms including: (1) irritation of the

eyes, nose and throat; (2) dry mucous membranes and skin; (3) erythema,

(redness of the skin and inflammation); (4) mental fatigue and headaches;

(5) respiratory infections and cough; (6) hoarseness of the voice and

wheezing; (7) hypersensitivity reactions; and (8) nausea and dizziness. " 6

Plaintiffs claiming to suffer from SBS have been suing building owners,

building managers, architects, engineers, construction managers,

contractors, sub-contractors, material suppliers and manufacturers allegedly

responsible for the contamination of the building. Claims normally include

several causes of action, including breach of contract, breach of express

warranty, breach of implied warranty, strict liability, negligence, breach

of the covenant of quiet enjoyment by constructive eviction, fraudulent

concealment and misrepresentation, nuisance, assault and battery and

emotional distress.7 Some examples of SBS cases include:

Employees in an office building become ill. The employees pursue their

employer under workers compensation and sue all tenants and owners of the

building claiming that something in the tenants' business operations or the

owners' maintenance and supervision of the building has caused toxic fumes

to be in the building.

(Photograph Omitted)

Captioned as: T. Lacey is a partner with the San Francisco firm of

Gordon & Rees. He received his bachelor's degree from Stanford University in

1977, and graduated from the University of California, Hastings College of

the Law in 1981, where he was a member of the Hastings Law Journal. Mr.

Lucey is a member of the Federation of Insurance & Corporate Counsel, the

Association of Defense Counsel, and the San Francisco, California and

American Bar Associations. His personal injury practice involves small

matters, as well as complex torts and class actions. In the employment area,

Mr. Lucey has defended clients in cases involving allegations of wrongful

termination, discrimination, and harassment. His environmental experience

includes personal injury matters allegedly arising out of exposure to toxic

substances, as well as defending owners and occupiers of real property

against claims of pollution. Mr. Lucey has also handled numerous insurance

bad faith and coverage matters.

A tenant sues a building owner because the tenant has been unable to occupy

the building due to fumes or gases. The prospective tenant also alerts state

or local authorities. The owner has a duty under state or local statute or

ordinance to abate the health hazard.

The owner of a residence sues the general contractor and subcontractors

because defective construction has led to water intrusion in the home which

has caused a toxic mold to form in the walls of the home. The owner is

sensitive to the molds and develops a health condition which forces her to

leave her home.

In defending the building owner, architect, contractor, subcontractor, or

tenant, consideration must be given to whether there may be insurance

coverage for the claims by or against one's client. This article discusses

the insurance coverage issues presented by SBS cases. It is not meant to be

an exhaustive review of all the insurance coverage issues that may be

presented. It is, however, intended to raise awareness of the issues that

should be considered when making a claim for defense or indemnity under a

liability policy or for benefits under a property insurance policy. In

addition to the general considerations addressed in this article, the

specific insurance policy at issue should always be consulted and all terms,

exclusions, and conditions of that policy should be carefully reviewed.

II.

COVERAGE ISSUES UNDER INSURANCE POLICIES

Coverage for SBS claims may be found under the following types of insurance

policies: third party liability (e.g., for business owners, product sellers,

property owners, lessees and tenants); first party property; professional

services errors and omissions (e.g., for architects and engineers); workers'

compensation; and surety bonds.8 The scope of this article is limited to

examining the coverage issues under liability and property policies.

A. Liability Insurance Policies

As with all insurance policies, one must review the language of the specific

insurance policy to determine if coverage exists for SBS claims. However,

there are some issues that are generally applicable to any SBS coverage

analysis.

1. The Duty to Defend

A primary consideration under any tender of an SBS claim will be the

insurer's duty to defend. California is typical of most states in holding

that an insurer owes a broad duty to defend its insured against claims that

create a potential for coverage.9 To that end, a carrier " must defend a suit

which potentially seeks damages within the coverage of the policy.10 The

existence of a duty to defend will rest on the allegations in the complaint

and extrinsic facts known by the insurer at the inception of the lawsuit.11

Accordingly, it is the responsibility of counsel for the insured to

establish the potential for liability by reference to the factual

allegations of the complaint, the terms of the policy, and any extrinsic

evidence.12

2. Other Enforcement Actions

In most instances, the basis for a tender by the insured will arise out of a

lawsuit brought by an individual claiming to suffer from SBS. However, the

duty to defend may also extend to other enforcement actions. Most

comprehensive general liability policies charge the insurer with the duty to

defend the insured against a " suit " seeking covered damages. Many courts

have decided that the term " suit " is not limited to the filing of a

complaint in a civil action, and may also include demands made by state or

local governments to abate a hazardous condition.13 Accordingly, a property

owner tasked by government authorities with cleaning up a " sick " building

may be able to tender such a claim to its insured.

3. " Occurrence "

The standard-form general liability policy only covers damages caused by an

" occurrence. " An " occurrence " is typically defined as " an accident,

including continuous or repeated exposure to substantially the same general

harmful conditions. " The term accident is generally held to mean not

expected or intended.14 In fact, more recent policy forms have used the term

" neither expected nor intended from the standpoint of the insured " to limit

the meaning of " occurrence. " The focus of this inquiry is not on the

consequences of an act, but rather on the act itself.15 Accordingly, when

SBS is expected or intended, there may be no coverage. For example, when a

building owner is on notice that the building's HVAC system is defective,

but takes no action to correct the defect, resulting claims of SBS may be

considered expected.

4. Triggering Coverage

Whether an insurer owes a duty to defend depends upon whether the insurer's

obligations under a particular policy are activated, or " triggered, " by the

happening of a covered harm during the policy period. As the California

Supreme Court explained in Montrose Chemical Corp. v. Admiral Insurance Co.:

" (T)rigger of coverage " is a term of convenience used to describe that

which, under the specific terms of an insurance policy, must happen in the

policy period in order for the potential of coverage to arise. The issue is

largely one of timing what must take place within the policy 's effective

dates for the potential of coverage to be " triggered " ?16

When the covered harm is an isolated event, determining whether a particular

policy was " triggered " is simple. However, when the injury or damage is

continuous, courts have recognized several different " triggers. " Depending

upon the nature of the harm, these have been held to be: the date of

exposure, the date of the first occurrence of injury in fact, the date of

manifestation or discovery of the damage or injury, or a continuous trigger

from exposure through manifestation and beyond when the injury is ongoing.17

Under the latter theory, called the continuous injury (or multiple) trigger,

bodily injury and property damage that are continuous or progressively

deteriorating are covered by all policies in effect during that period.18

The timing of the event or conditions causing the injury or damage and the

date of discovery of the damage or injury are either immaterial or included

within the triggered time period.

Jurisdictions that have adopted the continuous injury trigger, such as

California, would likely apply it to SBS claims. As previously discussed,

the two main causes of SBS are microbial contamination from excessive

moisture and the discharge of organic gases during the evaporation and

decomposition of VOCs. Both these processes involve an ongoing and

progressive condition that may cause injury over a long period of time.

Accordingly, all policies in effect during the entire period would be

triggered.

5. " Bodily Injury "

Under a general liability policy, coverage is usually provided for " bodily

injury, sickness or disease sustained by a person, including death resulting

therefrom. " Courts have held that the term " bodily injury " is plain and

unambiguous and that coverage is limited to physical injury to the body and

does not include nonphysical, emotional or mental harm.19 Similarly, a claim

based upon an individual's fear of contracting harm in the future would also

be beyond the scope of bodily injury coverage.20

Accordingly, SBS claims involving victims who suffer some of the physical

manifestations identified by the World Health Organization would be

potentially covered under a general liability policy. However, emotional

distress injuries or a claim based on an individual's fear of subsequently

contracting SBS would not.

6. " Property Damage "

Depending upon the policy, " property damage " may be defined as physical

injury to tangible property or loss of use of tangible property that is not

physically injured. To the extent that a particular policy covers only

physical damage to property, the insured would have to argue that the

microbial contamination or the release of toxic gases from decomposing VOCs

associated with SBS caused physical damage to the subject building.21 When

loss of use is covered, a building owner or tenant may be covered for his

loss of use of a " sick " building that has become uninhabitable or

unusable.22

However, courts have held that purely economic loss does not constitute

property damage.23 Accordingly, when gases or fumes do not render the

building uninhabitable, and the building owner's only damage is economic

(the diminished value of the building), there may be no coverage for an

SBS-related claim.24

7. Pollution Exclusions

Even if an insured is successful in arguing that SBS-related conditions

constitute bodily injury or property damage, coverage may nonetheless be

excluded under a pollution exclusion. There are a number of issues that may

affect the applicability of a pollution exclusion to an SBS claim.

a. Pollutants

Whether a pollution exclusion will apply to exclude SBS-related claims may

depend upon the judicial interpretation of the term " pollutant. " The

standard-form general liability policy defines a " pollutant " as " any solid,

liquid, gaseous or thermal irritant or contaminant, including smoke, vapor,

soot, fumes, acids, alkalis, chemicals and waste. " Many courts have decided

that toxic fumes, like those discharged by decomposing VOCs, are a

pollutant.25 However, some courts have taken a contrary view. Typical of

those cases is American States Insurance Co. v. Koloms,26 in which the court

determined that the standard-form pollution exclusion did not bar coverage

for carbon monoxide build-up caused by a faulty furnace. The court reviewed

the historical background of the pollution exclusion and determined that it

was intended to apply " only to those injuries caused by traditional

environmental pollution. " 27

Another court decided that the standard-form pollution exclusion is

inapplicable to an SBS claim based only upon the excessive accumulation of

carbon dioxide in the work area. In son v. Urban Land Interests,

Inc.,28 the plaintiffs claimed that an inadequate air exchange ventilation

system in an office building resulted in poor air quality. This allegedly

caused the plaintiffs to suffer from headaches, sinus problems, eye

irritation, extreme fatigue, upset stomachs, asthma, sore throats, nausea

and pounding ears. Although it was claimed that the inadequate ventilation

also caused the accumulation of " other air contaminants, " the decisions of

the circuit court and court of appeals dealt only with the accumulation of

exhaled carbon dioxide. Thus, the Wisconsin Supreme Court's opinion was

limited to that issue.29 The court held that, although " (e)xhaled carbon

dioxide can achieve an injurious concentration in a poorly ventilated area,

( ) it would not necessarily be understood by a reasonable insured to meet

the policy definition of a 'pollutant. " '30

b. The Release

In addition to the foregoing, many pollution exclusions may require that the

release or discharge of pollutants be " into or upon land, the atmosphere or

any water course or body of water. " Interpreting this language, some courts

have determined that the pollution exclusion does not apply to pollution

which occurs inside a building, as there has been no release into the

" atmosphere. " 31 However, some courts have ruled otherwise.32

c. " Sudden and Accidental "

Even if microbial contamination or fumes from VOCs qualify as pollutants

released into the environment, the pollution exclusion may still not apply.

The applicability of the pollution exclusion depends upon whether the

release or discharge of pollutants is " sudden and accidental. " This is a

phrase subject to varying judicial interpretations.

For example, in Leverence v. United States Fidelity & Guaranty Co.,33 the

plaintiff homeowners alleged that excessive moisture within the exterior

walls of their homes, caused by defective design and faulty construction,

promoted the growth of mold and other toxins. This, it was asserted, created

a continuing health risk which adversely affected the value of the homes.

The court held that because the growth of the molds was unexpected and

unintended, and therefore " accidental, " the pollution exclusion did not

apply.34

However, some courts have held that, in order for the pollution exclusion to

apply, the release must be both accidental and abrupt.35 In jurisdictions

where " sudden " means abrupt, it is likely that the growth of molds and the

release of toxic gases during decomposition would not be found to be sudden

and the pollution exclusion would preclude coverage for SBS claims.

d. The " Absolute " Pollution Exclusion

Since the mid-I980s, general liability insurance policies usually contain an

" absolute " pollution exclusion. Among other things, the " absolute " pollution

exclusion purports to exclude coverage for any actual, alleged or threatened

release or discharge of pollutants at or from any premises owned, rented or

occupied by the insured. It also applies to the release or discharge of

pollutants at or from any site where the insured is " performing operations. "

However, there may still be circumstances in which the " absolute " pollution

exclusion does not apply to an SBS claim. For instance, because it only

applies to sites where the insured is " performing operations, " the exclusion

does not apply to exclude coverage for pollution which has occurred after

the insured has completed its operations.36 Accordingly, when the growth of

molds or the release of toxic gases from VOCs occurred after a building was

completed, the " absolute " pollution exclusion would not apply to exclude

coverage of an SBS claim brought against a contractor.

8. Intentional Conduct

Most general liability policies exclude coverage for bodily injury or

property damage which was intended or expected from the standpoint of the

insured. Unlike the definition of " occurrence " discussed above, which

focuses on causation, this exclusion focuses on the damage or injury. In A-1

Sandblasting & Steamcleaning Co. v. Baiden,37 the insured was a contractor

in the business of cleaning and painting large structures. The insured sued

its liability insurer to recover the money that it paid to the owners of

automobiles that were damaged during the course of its spray-painting a

bridge. The insurer argued that recovery was precluded because the insured

intentionally chose a method of operation (spray painting), which it

expected to cause harm.38 The court disagreed, noting that " nothing in the

record suggest(ed) that it was any part of the contractor's purpose to spray

paint on automobiles crossing the bridge while it was being painted. " 39

Similarly, if an insured intentionally chose materials that resulted in the

release of harmful VOCs, coverage may not be precluded by the intentional

conduct exclusion.

However, the intentional conduct exclusion may preclude coverage of some

SBS-related claims.40 When the complaint includes allegations that the

insured intentionally misrepresented the health hazards of certain dangerous

chemicals in the products placed in the building, coverage would be

precluded by the intentional conduct exclusion.

9. Employees and Workers' Compensation

Most general liability policies exclude coverage for claims by employees and

claims otherwise covered by workers' compensation. Accordingly, SBS--

related claims arising out of and in the course of the employment of a

person by the insured may not be covered. To that end, it is instructive to

note that two recent SBS-related workers' compensation claims have been

thwarted by the employees' inability to establish that their ailments were

caused by the particular building in which they worked.41

10. Personal Injury Coverage

Many general liability policies include " personal injury " coverage, which

covers injuries arising out of, among other things, wrongful entry or

eviction or other invasions of the right of private occupancy. As previously

discussed, SBS suits may include claims for breach of the covenant of quiet

enjoyment resulting from constructive eviction or nuisance. Accordingly,

insureds may argue that SBS-related claims are covered by the personal

injury provision.

The success of this argument depends upon the jurisdiction. Many courts have

interpreted the coverage afforded by the personal injury provision as being

limited to injuries personal to the occupant, as distinct from damage to the

realty.42 This is particularly true when the insured's claim for personal

injury appears to the court to be an attempt to avoid the preclusive effect

of a pollution exclusion.43

Some courts have decided otherwise.44 One such case is Titan Holdings

Syndicate v. City of Keene.45 In that action the plaintiff-homeowners sued

the City of Keene, New Hampshire, for trespass and nuisance. They alleged

that they had been " 'continuously bombarded by and exposed to noxious, fetid

and putrid odors, gases and particulates, to loud and disturbing noises

during the night, and to unduly bright night lighting' emanating from the

City's sewage treatment plant which abut(ted) their land. " 46 The court found

that the fumes, noise and light did not constitute a wrongful entry or

eviction under the personal injury provisions of the city's liability

policies because the alleged conduct was not intentional. Intentional

conduct is required under New Hampshire law in actions for trespass.

Moreover the court found there was no landlord-tenant relationship to

support a claim of eviction. However, the court held that the allegations

would be covered as " other invasions of the right of private occupancy, " as

no showing of a physical invasion is required under that language.47

B. Property Insurance Policies

Coverage for SBS-related claims may also be found under property insurance

policies such as homeowners or commercial property policies. As with general

liability policies, the particular policy must be reviewed to determine

whether the " sick " building is insured by the policy and what aspects of the

building are covered (e.g., the building itself, personal property, business

interruption).

1. Covered Perils

Some property insurance policies cover only specified perils, while others

cover on an " all risk " basis. The importance of identifying the scope of

property insurance coverage was explained as follows:

The term " perils " in traditional property insurance parlance refers to

fortuitous, active, physical forces such as lightning, wind, and explosion,

which bring about the loss .... Frequently property losses occur which

involve more than one peril that might be considered legally significant. If

one of the causes (perils) arguably falls within the coverage grant -

commonly either because it is specifically insured (as in a named peril

policy) or not specifically excepted or excluded (as in an " all risks "

policy) - disputes over coverage can arise. The task becomes one of

identifying the most important cause of the loss and attributing the loss to

that cause.48

Accordingly, property policies must be examined to determine if the

specified perils include SBS-related claims (e.g., negligent construction),

or whether the policy is all-risks and coverage for SBS-related claims is

specifically excluded (e.g., loss from water damage).

2. Efficient Proximate Cause

Some jurisdictions have adopted the doctrine of efficient proximate cause.

This doctrine requires that, when a loss is the result of a concurrence of

different causes, the loss is attributed to the efficient cause. That is

defined as the cause that sets the others in motion, even though other

causes may follow it and operate more immediately in producing the loss.49

In the context of an SBS claim, the presence of microbial contamination or

toxic gases from VOCs might be the result of one or more concurrent causes,

such as poor workmanship during construction or negligent maintenance by the

owner. Accordingly, a determination must be made as to what is or are the

efficient proximate cause or causes of the SBS. If an efficient proximate

cause is a specified peril, the loss may be covered.

3. Common Exclusions

There are numerous, common exclusions in first party property insurance

policies that may operate to exclude coverage of an SBS claim.

a. Contamination

Many property policies exclude coverage for losses caused by contamination.

An example of such a clause is found in Auten v. Employers National

Insurance Co.50 So In that case, the insured-homeowners sued their insurer

to recover under an all-risk policy. A professional exterminator's

misapplication of pesticides rendered their home uninhabitable. The court

held that the policy's contamination exclusion operated to preclude

coverage.51 Coverage for an SBS--related claim may be similarly precluded by

a contamination exclusion when the source of the condition is microbial

contamination from excessive moisture.

b. Deterioration

Property policies often exclude coverage for losses caused by deterioration

of the property. For example, in Twin City Hide v. Transamerica Insurance

Co.,52 the insured was a cattle hide tanning company. Its hides were damaged

by a water leak in the roof of its plant. The all risk policy excluded

coverage for losses caused by " 'wear and tear, deterioration, rust or

corrosion, mold, wet or dry rot. " '53 An insurance adjuster testified that

the leak was caused by rust and corrosion. The court held that the damage to

the hides was caused by " rotting " and was therefore excluded under the

deterioration exclusion.5 "

Coverage for an SBS-related claim may be similarly precluded by a

deterioration exclusion. As previously discussed, the most common causes of

SBS are the growth of molds from excessive moisture and the release of gases

from deteriorating VOCs. Both causes would likely be found to come under a

deterioration exclusion.

c. Faulty Workmanship

Some all-risk policies exclude coverage for losses caused by faulty

workmanship. In Tzung v. State Farm Fire & Casualty Co.,55 the insured

apartment owners sued their insurer when their claim for cracks in the

apartment's drywall and driveway was denied. The court noted that the

insured's all risk policy " clearly state(d) that damages caused by faulty

workmanship (were) not covered unless a fire ensue(d). " 56 The court held

that the exclusion was unambiguous and precluded coverage for " losses caused

by the defective design and construction of the (insureds') apartment

building. " 57

C. Other Insurance

In addition to reviewing a client's liability and property insurance

policies for potential coverage of SBS-related claims, consideration should

also be given to whether insurance purchased by other parties may benefit

the client. For example, leases and construction contracts usually provide

that the tenant and subcontractors must provide insurance for the benefit of

the building owner and general contractor, respectively. The client may be

an additional insured under insurance policies issued to the tenant or

subcontractor. Furthermore, given the continuing nature of most SBS-related

claims, it is possible that more than one insurance policy may be

" triggered " by the condition.58 Accordingly, all potential insurers should

be put on notice of the claim against their insured or additional insured.

III.

CONCLUSION

There is strong indication that SBS-related claims may constitute the next

wave of toxic tort litigation. Therefore, attorneys representing building

owners, architects, engineers, manufacturers, suppliers and contractors must

familiarize themselves with SBS and the attendant technical and legal issues

associated with poor air quality claims. This article addresses a few select

issues in the context of insurance coverage for SBS-related claims. As is

clear from the legal authority cited, whether there is coverage for an

SBS-related claim will depend upon the particular language of the insurance

policy and the applicable law of the forum.

Footnote:

'The author acknowledges the assistance of his partner Sara M. Thorpe and

associates Amy Briggs and A. son.

'LEWIS W. LEEDS, LECTURES ON VENTILATION AT FRANKLIN INSTITUTE, 1866-67, 8

(1868) (quoting a letter by lin to Dr. Ingenhaus, Physician to

the Emperor of Vienna) reprinted in Gene J. Heady, Comment: Stuck Inside

These Four Walls: Recognition Of Sick Building Syndrome Has Laid The

Foundation To Raise Toxic Tort Litigation To New Heights, 26 TEX. TECH L.

REV. 1041 (1995).

Footnote:

3Heady, supra note 2, at 1046, 1054 (citing estimates that between ten and

twenty-five million occupants in 800,000 to 1.2 million commercial buildings

in the United States alone will exhibit all or some of the symptoms typical

of SBS). 41d. at 1056.

Footnote:

Sld. at 1057. 61d. at 1054.

Footnote:

:E: 0 :0:fs at Id. 0

Footnote:

8While surety bonds typically only guarantee that a job is completed, some

courts hold that sureties may remain liable for latent defects discovered

after a contractor has completed work. See, e.g., Regents of Univ. of Cal.

v. Hartford Acc. & Indem.Co. , 581 P.2d 197 (Cal. 1978) (surety liable for

latent defect discovered after statute of limitations had run against

principal), superseded on other grounds by CAL. CoDE Ctv. PROC. (sec)337.15

(1979). 9Gray v. Zurich Ins. Co., 419 P.2d 168,176 (Cal. 1966).

Footnote:

10Id.

11Id.

12See Montrose Chem. Corp. v. Superior Court, 861 P.2d 1153, 1160 (Cal.

1993) (holding that the insurer must assume its duty to defend " unless and

until it can conclusively refute that potential " ).

Footnote:

'3See Aetna Cas. & Sur. Co., Inc. v. Pintlar Corp., 948 F.2d 1507, 1517 (9th

Cir. 1991) (applying Idaho law) (government demand letter under CERCLA the

functional equivalent of lawsuit); Avondale Indus., Inc. v. Travelers Indem.

Co., 887 F.2d 1200 (2d Cir. 1989), cert. denied, 496 U.S. 906 (1990); A.Y.

Mc Indus., Inc. v. Insurance Co. of N. Am., 475 N.W.2d 607 (Iowa 1991)

(stating that the majority of courts construe the term " suit " to include any

attempt to gain an end by a legal process); but see, Aetna Cas. & Sur. Co.

v. General Dynamics Corp., 968 F.2d 707,714 (8th Cir. 1992) (applying

Missouri law) (acknowledging that it was a " close " question, the court held

that a government demand was not a " suit " when it merely encouraged the

insured to participate in, and negotiate, the clean-up of various sites).

" Shell Oil Co. v. Winterthur Swiss Ins. Co., IS Cal. Rptr.2d 815, 836 (Ct.

App. 1993). " Id. at 838.

'6913 P.2d 878, 881 n.2 (Cal. 1995).

Footnote:

" Id. at 892; Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d

1178, 1197 (2d Cir. 1995), mod. on other grounds, reh'g denied, 85 F.3d 49

(2d Cir. 1996) (holding that Texas and New York would apply a continuous

injury trigger to asbestos claims where the evidence establishes progressive

bodily disease). " Id. at 893.

Footnote:

19Chatton v. National Union Fire Ins. Co., 13 Cal. Rptr.2d 318, 323 (Ct.

App.1992); Knapp v. Eagle Prop. Mgmt. Co., 54 F.3d 1272,1284-85 (7th Cir.

1995) ( " bodily injury " covers injuries with physical component); Allstate

Ins. Co. v. Diamant. 518 N.E.2d 1154, 1156 (Mass. 1988) ( " bodily injury "

refers to physical injuries only).

2See Khan v. Shiley Inc., 266 Cal. Rptr. 106, 111 (Ct. App. 1990) (fear that

heart valve might fail not sufficient to support emotional distress claim).

Footnote:

2 " See United States Fidelity & Guar. Co. v. Korman Corp., 693 F. Supp. 253,

258-259 (E.D.Pa.1988) (acknowledging that the leaching and giving off of

gases and fumes from a nearby landfill arguably alleged physically injury to

property).

z'See United States Fidelity & Guar. Co. v. Wilkin Insulation Co., 578

N.E.2d 926 (Ill. 1991) (loss of use of building caused by asbestos

constituted property damage). 23 Waller v. Truck Ins. Exchange, Inc., 900

P.2d 619 (Cal. 1995); Lamar Truck Plaza, Inc. v. Sentry Ins., 757 P.2d 1143

(Colo.1988); General Ins. Co. of Am. v. Western Am. Dev. Co., 603 P.2d 1245

(Or. Ct. App. 1979).

24See New Hampshire Ins. Co. v. Vieira, 930 F.2d 696, 701 (9th Cir. 1991);

but see Baugh Constr. Co. v. Mission Ins. Co., 836 F.2d 1164, 1171 (9th Cir.

1988) (diminution in value claim covered as " loss of use " because it

resulted from reduced utility of building).

Footnote:

25See, e.g., White v. Freedman, 643 N.Y.S.2d 160 (App. Div.1996) (noxious

fumes through ventilation system); American States Ins. Co. v. Nethery, 79

F.3d 473 (5th Cir. 1996) (applying Miss. law) (paint and glue fumes in

home); American States Ins. Co. v. F.H.S., Inc., 843 F. Supp. 187 (S.D.

Miss. 1994) (ammonia gas fumes to area surrounding warehouse); Crabtree v.

--Dockside, Inc., 612 So. 2d 249 (La. Ct. App. 1992) (polyvinyl

chloride dust); Lower Paxton Township v. United States Fidelity & Guar. Co.,

557 A.2d 393 (Pa. 1989) (methane gas from landfill).

26687 N.E.2d 72 (I11.1997).

Footnote:

27Id. at 82; accord Stoney Run Co. v. Prudential-LMI Commercial Ins. Co., 47

F.3d 34 (2d Cir. 1995) (carbon monoxide poisoning in apartment).

28564 N.W.2d 728, 730 (Wis. 1997).

29Id. at 730 n.2.

30Id. at 732.

Footnote:

31See Gamble Farm Inn, Inc. v. Selective Ins. Co., 656 A.2d 142,144-46

(Pa.1995) (release of gas from hot water heater into restaurant); Regents of

the Univ. of Minn. v. Royal Ins. Co., 517 N.W.2d 888, 890 (Minn. 1994)

(release of asbestos fibers within building); Garfield Slope Housing Corp.

v. Public Serv. Mut. Ins. Co., 973 F. Supp. 326, 336-38 (E.D.N.Y.1997)

(release of new-carpet fumes in building).

32See Essex Ins. Co. v. Tri-Town Corp., 863 F. Supp. 38 (D. Mass.1994)

(Zamboni's release of noxious fumes in indoor rink was " into atmosphere " ).

33462 N.W.2d 218 (Wis. Ct. App. 1990).

341d. at 232; accord Queen City Farms, Inc. v. Central Nat'l Ins. Co. of

Omaha, 882 P.2d 703 (Wash.1994).

355ee, e.g., Vann v. Travelers Cos., 46 Cal. Rptr.2d 617, 620 (Ct. App.

1995).

Footnote:

36See, e.g., West American Ins. Co. v. Tufco Flooring East, Inc., 409 S.E.2d

692, 695-97 (N.C. Ct. App. 1991). 37643 P.2d 1260 (Ore. 1982). 381d. at

1262. 391d. at 1265.

4See Heady, supra note 2, at 1049 (discussing an SBS suit filed by students

and teachers against engineers, architects, contractors, and manufacturers

associated with building a school).

Footnote:

4'See Knapp v. Vestal Central School Dist., 668 N.Y.S.2d 718, 720 (App. Div.

1998) (employee experienced similar symptoms in other locations); Minner v.

Card, 1998 WL 10091, *4 (Del. Super. Ct. 1998) (employee was reactive to

another building and grass pollen). 42See Titan Corp. v. Aetna Cas. & Sur.

Co., 27 Cal. Rptr.2d 476, 485 (Ct. App. 1994); Leek v. Reliance Ins. Co.,

486 So. 2d 701, 704 (Fla. Dist. Ct. App. 1986); Inland Constr. Corp. v.

Continental Cas. Co., 258 N.W.2d 881, 885 (Minn. 1977).

4;See Titan Corp. v. Aetna Casualty & Sur. Co., 27 Cal. Rptr.2d at 487;

Legarra v. Federated Mut. Ins. Co., 42 Cal. Rptr.2d 101, 107 (Ct. App.

1995). 44See Blackhawk-Central City Sanitation Dist. v. American Guar. &

Liab. Ins. Co., 856 F. Supp. 584 (D. Colo. 1994). 45898 F.2d 265, 267 (lst

Cir. 1990). 461d. at 267. 471d. at 272-73.

Footnote:

48 E. Bragg, Concurrent Causation and the Art of Policy Drafting: New

Perils for Property Insurers, 20 FORUM 385, 386-87 (1985).

49See Sabella v. Wisler, 377 P.2d 889, 895 (Cal.1963); Safeco Ins. Co. of

Am. v. Hirschmann, 773 P.2d 413,414 (Wash. 1989); but see Millar v. State

Farm Fire & Cas. Co., 804 P.2d 822, 826 (Ariz. Ct. App. 1990); Kane v. Royal

Ins. Co. of Am., 768 P.2d 678, 685-86 (Colo. 1989) (declining to adopt the

doctrine).

Footnote:

5722 S.W.2d 468 (Tex. Ct. App. 1986), writ denied, 749 S.W.2d 497 (Tex.

1988). " Id. at 469-71; accord American Cas. Co. v. Myrick, 304 F.2d 179 (5th

Cir. 1962); Duensing Travelers Cos., 849 P.2d 203 (Mont.1993). 52358 N.W.2d

90 (Minn. Ct. App. 1984). " Id. at 92. 54 " Id.

Footnote:

55873 F.2d 1338 (9th Cir. 1989). 561d. at 1341. 571d.

" See section II.A.4, supra.