Insurers Say “Over My Dead Body” to Claims for Damage From Decomposition

by Cozen O'Connor
Contact

Last April saw decisions handed down in Pennsylvania and Florida that addressed the ghoulish question of whether first-party policies cover property damage from a decomposing body, and the courts in both jurisdictions held that the answer in no.  A word of warning – the balance of this post is not for the squeamish.

shutterstock_10128775The first decision was Certain Underwriters at Lloyds of London v. Creagh, — Fed.Appx. —, 2014 WL 1408868 (3rd Cir. , April 14, 2014).  The insured owned a building in Philadelphia where a tenant died in the bathroom of a second floor apartment.  The body went undiscovered for two weeks, by which time bodily fluids had seeped through the floor, contaminating both the apartment itself and parts of the first floor unit below, and there was “a powerful foul odor” in the entire structure.  The policyholder spent $180,000 to sanitize, remediate, and even rebuild portions of the building, and he then sought coverage from his property insurance carrier, Certain Underwriters at Lloyds of London.

Lloyds denied, and the matter went into suit.  The Eastern District of Pennsylvania granted summary judgment to the insurer, and the Third Circuit affirmed earlier this year, holding that coverage was barred by two exclusions in the Lloyds policy.  The first was a “Microorganism Exclusion” that recited as follows:

This Policy does not insure any loss, damage, claim, cost, expense or other sum directly or indirectly arising out of or relating to: mold, mildew, fungus, spores or other microorganism of any type, nature or description, including but not limited to any substance whose presence poses an actual or potential threat to human health.

The unanimous appellate panel agreed with the lower court’s finding that “the fluids that escaped from the decedent’s body and contaminated the premises contained bacteria, which is a microorganism,” and it rejected the policyholder’s argument that the bacteria were confined to the body as opposed to the bodily fluids in the absence of any evidence to that effect.  Lloyds had presented expert testimony that all of the damages, including the smell, arose out of the bacteria “which caused the fluid to escape the body and grew in the fluid after it left the body.”

In addition, Judge Thomas M. Hardiman’s opinion held that the contract of insurance’s “Seepage and/or Pollution and/or Contamination Exclusion” also operated to preclude coverage.  That provision stated:

[T]his Certificate does not ensure: (a) any loss, damage, costs or expense, or (b) any increase in insured loss, damage cost or expense . . . which arises from any kind of seepage or any kind of pollution and/or contamination[.]

The exclusion went on to recite that it specifically excluded coverage for losses caused by seepage of “any substance designated or defined as toxic, dangerous, hazardous or deleterious to persons or the environment under any . . . Federal, State, Provincial, Municipal or other law, ordinance or regulation[.]”  As the Court of Appeals explained, “the safety precautions that [the] sanitation contractor took and the classification by the Occupational Safety and Health Administration of such bodily fluids as potentially toxic and hazardous demonstrate the health and safety risk posed” by such substances.

Nine days later an intermediate level appellate court in Florida rejected similar claims in Rodrigo v. State Farm Florida Ins. Co. — So.3rd —, 2014 WL 1612494 (Fla.App. 4 Dist., April 23, 2014).  The policyholder owned a condominium, and she made a claim for damage to personal property after her next door neighbor died.  Once again, the body went undiscovered for days, and it leaked bodily fluids which infiltrated the walls and penetrated the insured’s unit.  The insurer, State Farm Florida Insurance Company, afforded personal property coverage only for named perils, and it denied liability because a decomposing body was not one of them.

The insured filed suit, contending that her property damage was caused by the named peril of “explosion,” but the trial court disagreed, granting summary judgment to State Farm.  The District Court of Appeals was in accord, and it affirmed.  The policyholder had presented a physician’s affidavit attesting to the fact that the decedent’s body “underwent advanced decomposition” and “the internal contents of her body explosively expanded and leaked.”  The unanimous appellate panel was having none of that, however.  As Judge Melanie G. May’s opinion explained, the fact that the term “explosion” was not defined meant that it had to be construed in accordance with the word’s plain meaning.  In the words of the court:

Rather than stretching common sense, the trial court correctly gave the term “explosion” its “plain and unambiguous meaning as understood by the ‘man-on-the-street.’ “ . . . The plain meaning of the term “explosion” does not include a decomposing body’s cells explosively expanding, causing leaking of bodily fluids . . .  [A]lthough novel in her attempt to do so, the insured could not establish that the decomposing body was tantamount to an explosion.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.