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Could "Odor" Be Damage to Your Property?
Published on 06/10/09 10:43AM by Bruce A. BierhansOver the years, I have had many cases and inquiries involving alleged odors that caused illness. Examples include varnishes on floors, glues under carpeting and even methane gas in a condominium resulting from improper placement of a septic system.
This week, Mass. Lawyers Weekly reports that the 1st U.S Circuit Court of Appeals has ruled that a permeating odor could constitute "physical injury to property". While LW reports that this could have a significant impact upon liability carriers that may now have to defend or provide coverage for theses cases, it may also provide relief to homeowners or other persons that may have suffered injury or damage to property as a result of such conditions.
In 2000, a company hired Suffolk Construction as a general contractor to make improvements to office space. Suffolk contracted with a flooring company to install tile and carpet. When employees returned in 2001, they noticed offensive odors, and some complained of headaches. When the sub refused to redo the job, Suffolk had to pay 1.4mill to remediate the problem. Suffolk then sued the sub and a US Magistrate initially ruled that the insurer had no duty to defend because of "exclusions" in the underlying policy of the sub. The appellate court reversed, holding that "odor can constitute physical injury to property" under Massachusetts law, and that the remediation, which included bead blasting of the floor could be interpreted as "physical injury."
I have often had to fight for consumers against insurance companies that try to hide behind the multiple exclusions often found in homeowner insurance policies. Although this is a 1st circuit federal court case, it gives a good indication as to how our state appeals courts may rule in similar circumstances. A potential victory for the consumer down the road; and one that doesn't leave a "bad taste" in your mouth.
Bruce Bierhans