Larry Alber sued farm operators Lyle Rodin and Darin Rodin in state court after allegedly suffering "life-altering cardiovascular and neurological injuries" from carbon monoxide emitted by a portable heater in the Rodins' farm shop. North Star Mutual Insurance Company, which had issued a liability policy to the Rodins, sought a declaratory judgment that it had no duty to defend or indemnify the Rodins because the policy's pollution exclusion barred coverage for carbon monoxide-related claims.
Circuit Judge Smith, writing for the three-judge panel, rejected the Rodins' argument that carbon monoxide should not be considered a "pollutant" under the policy. "Carbon monoxide is a gas that can render air 'unfit for use' if introduced at high levels," Smith wrote, citing the court's reasoning in Church Mutual Insurance Co. The judge found that carbon monoxide clearly qualifies as a "gaseous...contaminant" under the policy's definition of pollutant, which includes "any solid, liquid, gaseous, thermal, or radioactive irritant or contaminant."
The Rodins had unsuccessfully sought summary judgment in the District of North Dakota, where Chief Judge Peter D. Welte ruled in favor of North Star. The Rodins then asked the Eighth Circuit to certify the pollution exclusion interpretation question to the North Dakota Supreme Court, but the appeals court declined, noting that the Rodins waited until after receiving an adverse judgment to seek certification and that North Dakota law provided "ample guidance" for federal courts to make the determination.
The ruling adds to a circuit split on how broadly pollution exclusions should be interpreted, with some courts limiting them to traditional environmental pollution while others, like the Eighth Circuit here, apply them as "absolute" exclusions. The decision strengthens insurers' ability to invoke pollution exclusions for indoor air quality claims involving carbon monoxide from heating equipment.