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

Lucey, Michael T

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

- Benjamin Franklin

Perhaps inspired by Benjamin Franklin'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.

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 Donaldson 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.

'The author acknowledges the assistance of his partner Sara M. Thorpe and associates Amy Briggs and Michael A. Laurenson.

`LEWIS W. LEEDS, LECTURES ON VENTILATION AT FRANKLIN INSTITUTE, 1866-67, 8 (1868) (quoting a letter by Benjamin Franklin 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).

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.

Sld. at 1057. 61d. at 1054.

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

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).

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").

'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. McDonald 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).

"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.

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).

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).

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. Hayes-- 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).

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.

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).

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).

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.

48Michael 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).

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.

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

"See section II.A.4, supra.

MICHAEL T. LUCEY1

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