CBR accidents, hostile fires, and pollution exclusions

What does it mean to call a fire hostile? For an insurance policyholder seeking coverage for a large loss involving a fire or explosion and a release of something an insurer might call a pollutant like oil, gas, or a hazardous chemical product, such as following a CBR (crude by rail) accident and fire, this can be an important question.

When an explosion or fire event like this happens resulting in death, personal injuries or property damage, insurance companies may rely on a pollution exclusion. These exclusions may contain important exceptions, however, for “hostile fires.”

Background

The “absolute” and “total” pollution exclusions have been in common use in liability policies since 1985, and at first blush they purport to bar coverage for any claim that, however tangentially, involves a substance that conceivably could be labeled a “pollutant,” with few exceptions, one of which involves “hostile fires,” the subject of this article. At the time these exclusions were introduced, however, the insurance industry represented to state insurance regulators that these exclusions were aimed only at government-mandated cleanup of long-term traditional environmental industrial pollution.

Despite those representations, because the language of the exclusions appear on their face to be unbounded, after these exclusions were first introduced, insurance companies began to deny coverage for a wide variety of property damage and personal injury claims unconnected to damage to the environment. More specifically, insurers argued that, under their “plain meaning,” these exclusions barred coverage for damages from any substance conceivably deemed an “irritant,” including ordinary household substances that most people would never consider to be environmental pollutants.

Fortunately, courts in the majority of states frequently reject the basis for many insurers’ denials of coverage, narrowly construing the pollution exclusion and broadly construing the hostile fire exception. Indeed, many courts considering these insurance industry positions have concluded that “absolute” and “total” pollution exclusions do not bar coverage for claims outside of the context of traditional industrial pollution. Thus, in many ways, pollution exclusions are far less “absolute” than insurance companies repeatedly argue.

An Example

The hostile fire exception is a more express and tangible limitation on the pollution exclusion’s reach than the representations made by insurance industry representatives to state insurance regulators, yet insurers still repeatedly seek to exceed its limits. For example, a recent, modified version of an absolute pollution exclusion we have seen in use containing a hostile fire exception broadly purports to exclude pollution, but then provides a hostile fire exception that is ambiguous concerning whether it applies to cleanup costs and government demands to remediate pollutants. First, the exclusion states, “This insurance does not apply to:”

f. Pollution

(1) “Bodily injury” or “property damage” that would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at any time.

This language is then immediately followed by the following hostile fire exception:

This exclusion does not apply to “bodily injury” or “property damage” arising out of heat, smoke or fumes from a “hostile fire” unless that “hostile fire” occurred or originated:

(a) At any premises, site or location that is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; or

(b) At any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are performing operations to test for, monitor, clean up, remove, contain, treat, detoxify, neutralize or in any way respond to, or assess the effects of, “pollutants”.

Without expressly re-addressing application of the hostile fire exception, the exclusion next lists “(2) any loss, cost or expense arising out of any:”

(a) Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify, neutralize or in any way respond to, or assess the effects of, “pollutants”; or

(b) Claim or “suit” by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of, “pollutants”.

After all of the above, the term “hostile fire” is then defined as meaning “one that becomes uncontrollable or breaks out from where it was intended to be.”

When a loss occurs that may potentially implicate an exclusion of this type, like a crude oil train accident resulting in spilled oil igniting and exploding, a variety of questions may surface: In addition to the type of chemical or pollutant involved, one will question what the source was, whether or how they were “released” into the environment, under what circumstances, and exactly when it is alleged that pollution occurred. One will also closely question whether the exception for hostile fire applies solely to bodily injury and property damage, or if it is possible to argue the exception applies also to required responses to cleanup demands for responding to pollutants. In this example (and many others) we would argue the exclusion is hopelessly ambiguous, and it must be construed in favor of coverage, with the hostile fire exception read as modifying a single “pollution exclusion.”

Nationwide, however, there are not many cases construing “hostile fire” exceptions to pollution exclusions. The precedents available have reached divergent results, but they largely agree that coverage exists for “bodily injury” or “property damage” claims under policies with hostile fire exceptions to pollution exclusions, where the damage is caused either by an uncontrollable fire, or a fire that escaped from its usual place. The cases are in greater disagreement concerning whether the hostile fire exceptions can apply to damages in the form of pollution cleanup efforts and government-ordered remediation of pollutants.

Defining a Hostile Fire

A hostile fire has been “defined as being a fire unexpected, unintended, not anticipated, in a place not intended for it to be and where fire is not ordinarily maintained, or as one which has escaped in the usual and ordinary sense of the word.” The doctrine of hostile fire dates to nineteenth century case law interpreting fire insurance policies, and the term stands in contrast to a “friendly fire,” which is one lighted and contained in its usual place.

In Florida Farm Bureau General Insurance Co. v. Insurance Co. of North America, the Florida District Court of Appeal reversed a lower court’s finding on a motion to dismiss that an automobile accident resulting from the release of smoke was subject to the absolute pollution exclusion. The smoke allegedly arose from a controlled burn of a field that grew out of control. The court ruled that a motion to dismiss should not have been granted because questions remained regarding application of the “hostile fire” exception in the exclusion. The court did not explain in any greater detail how exactly it understood the hostile fire exception, but it is clear that the allegation of the allegedly “uncontrollable” nature of the fire raised the possibility of a “hostile” fire.

In Mid-Continent Casualty Co. v. Safe Tire Disposal Corp., a Texas appellate court ruled that the hostile fire exception to a pollution exclusion applied in a case involving damage to neighboring people and property caused by smoke after an uncontrolled, accidental and unintended fire broke out in a pile of rubber chips and wire at a scrap rubber recycling facility. In the insurer’s view, “the hostile fire exception will apply only if Safe Tire intentionally set a controlled fire in an appropriate location on its premises which becomes uncontrollable or breaks out from its place of origin.” The court rejected the insurance company’s strained argument that the definition, “gets out of control or breaks out from where it ought to be,” requires a “friendly fire” to exist first that later becomes uncontrollable or break out from its place of origin. Rather, it was “more reasonable” to include “any ‘accidental’ or ‘unintended’ fire,” as these are “not restrained, directed or regulated by someone,” and so the court declared the definition ambiguous and adopted the interpretation more favorable to the policyholder. The court went on to reject efforts to construe the insured’s desired product, rubber chips and wire that had already been recycled, as “waste,” or the facility as a “waste” processor, because an alternate view would render the hostile fire exception “meaningless” for that insured.

Similarly, in Schmid v. Fireman’s Fund Insurance Co., a case involving a carbon monoxide fatality, a federal court in Minnesota held that a natural gas flame in a water heater was a “hostile fire,” and the exception to the pollution exclusion applied. Focusing on the word “or” in the definition of “hostile fire,” the court clarified that what was required to qualify as a hostile fire was either a fire that a person cannot contain, guide or extinguish (whether within an intended location or an accidental fire elsewhere), or a fire that had broken out from where it was intended to be (whether controllable or uncontrollable). The court agreed with the insurer that the fire in the combustion chamber of the heater was not uncontrollable, because the device could have been turned off, but the exception still applied, because there was evidence the burner was “three inches out of alignment” and not where intended to be.

In American Star Insurance Co. v. Grice, the court held that a pollution exclusion with a hostile fire exception was ambiguous, requiring coverage to be construed in favor of the policyholder, in a case involving a fire, which proved very hard to extinguish, at a property used as a dumping ground. Neighbors of the property owner sued for damage to their health and property from the resulting “noxious, chemical-laden smoke and other debris from the landfill.” Observing that “[t]he ability of the pollution exclusion to limit coverage is itself limited by the hostile fire clause which provides an exception to that exclusion,” the court relied on an “Explanatory Memorandum” submitted to a state insurance regulator by the Insurance Services Office (ISO) to conclude the exception was ambiguous as applied to a hostile fire on the insured’s premises.

In Associated Wholesale Grocers, Inc. v. Americold Corp., the court ruled that an absolute pollution exclusion did not apply to smoke damage, because the smoke was from a “hostile fire.” Therefore, the smoke damage was covered as being within the hostile fire exception to the exclusion. The insurer argued that it was not fire or smoke, but rather “contaminants” within the smoke from a long-smouldering fire that contaminated the insured’s products. The court disagreed and found unpersuasive the insurer’s efforts to “draw a distinction between smoke and the toxic materials contained in the smoke.” The court held that it was incomprehensible that one would “knowingly purchase a policy that covered liability for hostile fire damage but excluded smoke damage from the fire.”

In Illinois, coverage was held to exist under the hostile fire exception for hundreds of claims against a landfill brought by its neighbors for bodily injury, property damage and remedial costs, because the complaint alleged that a number of subsurface and surface fires that proved impossible to extinguish ignited waste, leading to an underground gas buildup, geysers of leachate, explosions, and releases of dangerous chemicals. The court rejected the insurance company’s arguments that the fire was not uncontrollable or had not broken out from where it was intended to be, merely because the fire was contained to the premises of the landfill. It was more accurate to say it was uncontrolled and continuing to feed on materials at the landfill. Additionally, based on rules of interpretation, the court adopted a narrow interpretation of “arising under” as used in the pollution exclusion. The court also noted that a broader “but for” causation interpretation for the exclusion, as is used for coverage grants, would lead to the exclusion applying beyond the scope of “traditional environmental pollution.”

Several courts that found no coverage on the facts of the cases before them have defined “hostile fire” in a way that acknowledges that what is needed is either an uncontrollable fire or a fire that broke out from where it ought to be. For example, in Indiana Lumbermens Mutual Insurance Co. v. West Oregon Wood Products, Inc., an owner of a manufacturing plant was sued based on allegations of bodily injury and property damage arising from gas and particulate emissions at the plant; an amended complaint added allegations that the plant also emitted smoke and fires. The court held that these allegations did not require a duty to defend because they did not raise any possibility that any of the damages were caused by a fire that was either uncontrollable, or one that broke out from where it was intended to be. The court concluded that there was no allegation that any fire ever became uncontrollable or broke out from where it was intended to be, because the complaint instead alleged the pollutants came about from “Defendant’s operation of the factory in a dirty way,” and were “controllable.”

The questions as to whether there has been an uncontrolled fire or a fire not where it is supposed to be also dominate coverage disputes relating to carbon monoxide injuries (at least in states that agree pollution exclusions can apply to indoors “contaminants” as opposed to only traditional environmental pollution). In Capron v. Steadfast Insurance Co., the policyholder sought coverage for an underlying wrongful death complaint arising from carbon monoxide poisoning caused by a damaged hot water boiler. While the policyholder argued that the hostile fire exception applied, the court disagreed. Although facts were “imaginable” in which the exception could apply, the complaint did not support any inference that any fire (unmentioned in the complaint) became uncontrollable or broke out from where it was intended to be, and so the court ruled that no duty to defend was owed.

Likewise, in Owners Insurance Co. v. Singh, coverage was sought for a carbon monoxide poisoning incident arising from a faulty furnace at an apartment. The trial court ruled that the hostile fire exception applied due to the existence of a flame in the furnace going “below and to the side” of the burner. On appeal, the court reversed, ruling that evidence of the flame was hearsay; there was no evidence the flame could not be shut off; and there was no evidence that flame caused the release of carbon monoxide.

Coverage for Cleanup of Oil, Chemical, and Pollution following Fire or Explosion

Like the example above, some insurance policies contain pollution exclusions addressing property damage, bodily injury and government-ordered remediation or cleanups, in addition to providing exceptions for hostile fire. Many of these policies are hopelessly ambiguous concerning their treatment of the costs of remediation and cleanup following a hostile fire and pollution release. If the insurance policy does not plainly exclude the cost of the cleanup, there is often a strong argument the hostile fire exception provides coverage for it.

The insurers who sold these policies will, at times, argue that a hostile fire can restore coverage for liabilities from bodily injuries and fire damage to property, but not for liabilities from cleanup and remediation efforts or compliance with governmental orders. If they do, there appears to be a split in authority as to whether the hostile fire exception also applies to that portion of the pollution exclusion that purports to exclude all pollution cleanup efforts and government suits to cleanup or respond to pollutants.

On the positive side, in Scranton Dunlop, Inc. v. St. Paul Fire & Marine Insurance Co., the court agreed that two potential constructions exist concerning the impact of the hostile fire exception on the pollution exclusion. The court noted that in Grice, the separate provisions of the pollution exclusion were viewed “as a single exclusion, modified in their entirety by the hostile fire exception.” By contrast, in Mid-Continent, the separate provisions were “considered to be independent—so that as long as a claim falls within one of the sub-sections that is not subject to the hostile fire exception, coverage is excluded regardless of the exception’s applicability to another sub-section.” Because two reasonable constructions existed, the court denied a motion to dismiss as premature and permitted extrinsic evidence on the issue to be explored.

By contrast, in Transportation Insurance Co. v. Valentine Investments, LLC, in a case decided under Michigan law, the court ruled that the hostile fire exception does not apply to any cleanup efforts following an accidental fire at a plating facility that caused smoke, soot and ash to infiltrate a neighboring church property. The court viewed the two subparts of the pollution exclusion as being, in effect, two separate exclusions, and ruled that it was plain the hostile fire exception “explicitly” only applied to the provisions relating to “bodily injury” and “property damage,” not the section for cleanups. The court therefore affirmed the district court’s judgment that because the underlying case solely involved cleaning up the church, the claim was excluded in full.

The Ninth Circuit employed the same distinction between claims seeking cleanup-related damages and claims seeking damages for bodily injury/property damage in Gerald L. Risner Testamentary Trust v. American States Insurance Co. In that case, a fire broke out in a laboratory, ignited flammable vapors, and caused the release of many chemicals, which were then carried away by water from the firefighting effort and from a broken water main. After government officials contained and remediated the contamination, the EPA brought a suit to recover the clean-up costs, and that was the suit and the damages at issue. The policyholder attempted to argue that the “concurrent proximate causation” doctrine applied, because “two independent acts of negligence combine to produce an injury, and one is covered risk and the other is excluded risk.” While the court agreed concurrent causation doctrine could apply “when multiple events cause an injury,” the court concluded that the doctrine did not apply to the costs of a cleanup under the facts of the case. The problem was that the “second pollution exclusion clause squarely bars coverage of ‘any expense’ arising out of ‘any governmental direction’ to clean up pollutants, regardless of what caused the pollution,” and in that case, it was “expenses of remediation” that were sought by the government.

There is one case of which we are aware in which the court distinguished between pollution causing a fire, and fire causing pollution. In Noble Energy, Inc. v. Bituminous Casualty Co., decided under Texas law, the court ruled that the pollution exclusion applied and the hostile fire exception did not. In that case, a petroleum producer’s truck was unloading hazardous oilfield waste, when flammable gas caused the diesel truck’s engines to “race,” leading to an explosion and fire. The court would not distinguish between the vapors acting as an “accelerant” rather than a “pollutant,” but it did conclude that it was the vapors that were the proximate cause of the explosion. According to the court, “[t]he hostile fire exception applies only if a pre-existing fire causes the pollution,” and “not vice versa.” Generally, this type of argument is usually a weak one, as the existence of an accelerant or pollutant will require an accident of some kind to ignite, for which the policyholder is looking to insurance.

Finally, we note the existence of two cases that distinguish between “heat, smoke or fumes” from a hostile fire, and various other harms that can result from a fire, including, remarkably, “combustion.” In E&L Chipping Co. v. Hannover Insurance Co., the court ruled that an absolute pollution exclusion applied to underlying lawsuits alleging run-off of contaminated water from firefighting efforts at the insured’s property, notwithstanding a hostile fire exception. The court ruled: “Whatever caused the contamination of the liquid emanating from E&L’s property, the alleged cause of the property damage to Ms. Miller’s lakeside property, as alleged in the petition, was liquid pollution, not damage caused by heat, smoke or fumes from a hostile fire.” Because of that, the court determined that the exception was inapplicable, and the claims relating to the contaminated water from the firefighting effort was excluded. Even more strangely, in West American Insurance Co. v. Hopkins, the court expressed its view, in dicta, that the exception would not apply to damages from combustion from fire because the exception lists “heat, smoke or fumes” without referencing combustion. The court had already separately concluded that the exception did not apply because the wording of the clause at issue in that case only applied to hostile fire at or from the insured’s premises. These cases appear to be outliers, and we would argue any policyholder would be surprised to learn that he or she had contracted to purchase an exception for a fire, but not the obvious effects of fire damage or firefighting.

Proximate Causation and Concurrent Causation

Some insurance policies contain pollution exclusions with no hostile fire exception at all. Even so, there are often arguments insurers that sold these liability insurance policies must respond to a claim involving bodily injury and property damage resulting in an accidental fire or explosion involving oil, gas, or another chemical that might be characterized by an insurer as a pollutant.

In a straightforward example, if a train carrying crude oil or hazardous chemical cargo derails, releasing cargo from breached tank cars that ignites and explodes, injuring bystanders and properties, the insurer may seek to rely on an exclusion for “any liability which would not have occurred in whole or part but for” the pollutants. Nevertheless, it may be difficult if not impossible in most cases for the insurer to prove which people and which properties were injured in whole or in part because of the cargo itself. While the crash without the cargo may well have injured fewer people or less property, it would be difficult to determine which persons or properties would not have been injured or damaged at all in that eventuality. It could be argued that uncertainty requires insurers with pollution exclusions that have no hostile fire exceptions to nevertheless defend their policyholder from any claims resulting from an incident like this example at least until they can resolve that question as a matter of law.

Assuming for the sake of argument that the oil or chemical is a “pollutant,” which as noted above can frequently be contested, we can argue further that to the extent the bodily injuries and property damages were caused by the oil or chemical, they were proximately caused, or were concurrently caused, by a covered casualty: alleged negligence leading to a train crash, fire and explosion. In North Dakota, for example, the Supreme Court refused to enforce a flood exclusion purporting to exclude coverage even if another cause concurrently causes a loss, where the evidence supported a conclusion that the “efficient proximate cause” was a sewer backup, not a flood. In that case, after record flooding led the Red River to overflow and then enter insured buildings through the overwhelmed sewer system, the university argued coverage based on “sewer backup,” which was not specifically excluded in the insurance policy. The insurer relied on a flood exclusion purporting to apply if damage were caused “directly or indirectly” by flood, “regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” Relying on a North Dakota statute regarding the “efficient proximate cause” doctrine, and precedent from other states concerning the issue, the court ruled that the efficient proximate cause controlled the insurance claim, despite the anti-concurrent causation policy language. The court quoted the California Supreme Court and Couch on Insurance for the proposition that “the efficient cause—the one that sets others in motion—is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.” The court quoted the California Supreme Court and Couch on Insurance for the proposition that “the efficient cause—the one that sets others in motion—is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.”

Florida courts have similarly adopted an efficient proximate cause rule for determining coverage of insured and uninsured risks holding that insureds may be entitled to coverage where an insured risk was at least a concurrent proximate cause of the damages. In Wallach v. Rosenberg, a Florida appeals court held that an insured could obtain coverage for damage caused by a sea wall collapse if a jury found that an insured risk, human negligence, as opposed to a non-insured risk, weather, was the efficient or proximate cause of the wall’s collapse. Applying the same principles to our train example, we could argue that the accident was the efficient proximate cause of the injuries, not the release of the cargo, because the latter occurred and was set in motion by the former. Other courts have eschewed this rule, or held the parties to an insurance policy are free to contract out of the efficient proximate cause doctrine.

Where the doctrine is accepted, we would argue that if a jury or court is unable to segregate the damages by covered and uncovered perils and no excluded factor is the overriding cause, the insurer may not deny coverage. In our train accident example, it may simply be impossible for the insurer to determine the overriding cause was the release of the chemical rather than the fire, a crash, or some other cause, or to separate damages resulting only from the covered versus the uncovered causes. This is often enough to establish a compelling case for coverage.

Conclusion

There is little case law nationwide interpreting hostile fire, but the available law generally shows these exceptions should be interpreted expansively and in favor of the policyholder. Indeed, whether a pollution exclusion contains a hostile fire exception or not, policyholders should consider arguing the pollution exclusion does not apply at all. This type of argument can succeed either by arguing that the alleged “pollutant” is a useful product and not a traditional environmental pollutant, or by arguing the alleged pollutant was not the driving cause of the accident or specific damage at issue.

John Ellison (top photo) and Luke Debevec are partners in the New York and Philadelphia offices of Reed Smith LLP who represent exclusively policyholders and their captives seeking to recover insurance and reinsurance payments.

ENDNOTES

1. For example, the Louisiana Supreme Court found that the so-called “total” pollution exclusion “was designed to exclude coverage for environmental pollution only.” Doerr v. Mobil Oil Corp., 774 So. 2d 119 (La. 2000). Likewise, in Nav-Its, Inc. v. Selective Ins. Co. of Am., 869 A.2d 929, 939 (N.J. 2005), the New Jersey Supreme Court held that the so-called “absolute pollution exclusion” must “be limited to traditional environmental pollution.” See Debevec, Ellison and Law, Recent Developments in the Law Regarding the ‘Absolute’ and ‘Total’ Pollution Exclusions, the ‘Sudden and Accidental’ Pollution Exclusion, and Treatment of the ‘Occurrence’ Definition ALI-ABA Environmental Insurance Conference Co-Author(s) (8-9 May 2008) (compiling state by state surveys and extensive treatment of both sides of these issues).

2. See Michael F. Aylward, “Absolute Pollution Exclusion – Hostile Fires,” 4 Law & Practice of Ins. Cov. Lit. § 44:87 (2013) (citing Youse v. Employers Fire Ins. Co., 238 P.2d 472 (Kan. 1951)).

3. Id.

4. No. 5D99-943, 2000 Fla. App. LEXIS 7031 (Fla. Ct. App. June 9, 2000).

5. Id. at *9.

6. 16 S.W.3d 418 (Tex. Ct. App. 2000).

7. Id. at 422.

8. Id.

9. Id.

10. Id. at 424.

11. 97 F. Supp. 2d 967 (D. Minn. 2000).

12. Id. at 972.

13. Id. at 972-73.

14. 854 P.2d 622 (Wash. 1993).

15. Id. at 624-25.

16. Id. at 628.

17. 934 P.2d 54 (Kan. 1997).

18. Id. at 78.

19. Id. at 77.

20. See Greenwich Ins. Co. v. John Sexton Sand & Gravel Corp.¸No. 1-12-1263, 2013 WL 950755 (Ill. Ct. App. Mar. 11, 2013).

21. Id. at *8.

22. Id.

23. Id. at *6.

24. Id. at *7 (citing Koloms, 687 N.E.2d 72).

25. 268 F.3d 639 (9th Cir. 2001).

26. Id. at 644-45.

27. Id. at 645.

28. No. 8:09-cv-2506-T-23-AEP, 2010 WL 1837753 (M.D. Fla. Apr. 29, 2010).

29. Id. at *1.

30. Id. As referenced above, certain Florida courts have historically construed pollution exclusions very broadly. See, e.g., West Am. Ins. Co. v. Band & Desenberg, 925 F. Supp. 758, 761-62 (M.D. Fla. 1996) (applying Florida law).

31. No. 98-CA-108, 1999 WL 976249 (Oh. Ct. App. Sept. 21, 1999).

32. Id. at *4-5. Certain Ohio courts have historically construed pollution exclusions very broadly. See, e.g., Park-Ohio Indus., Inc. v. Home Indem. Co., 975 F.2d 1215, 1219 (6th Cir. 1992) (applying Ohio law).

33. No. CIV A. 00-2138, 2000 WL 1100779, *2 (E.D. Pa. Aug. 4, 2000).

34. Id.

35. Id.

36. Id.

37. 205 Fed. Appx. 362 (6th Cir. 2006).

38. Id. at *2-3.

39. Id. at *3-4. Id. at *3-4.

40. 91 F.3d 152, 1996 WL 382321 (9th Cir. 1996)

41. Id. at *1.

42. Id. at *2.

43. Id.

44. Id.

45. 529 F.3d 642, at 648 (5th Cir. 2008).

46. Id. at 644.

47. Id. at 647.

48. Id. at 648; but see Kent Farms, Inc. v. Zurich Ins. Co., 998 P.2d 292, 295 (Wash. 2000) (applying Washington law) (finding that damage to driver injured by being struck by high-pressured diesel fuel while attempting to stop leak of thousands of gallons of fuel was not caused by fuel acting as a pollutant any more than if a barrel of fuel had rolled over driver).

49. 962 S.W.2d 272, 277 (Tex. Ct. App. 1998).

50. Id.

51. Id.

52. No. CA 3108, 1994 WL 559005, *4 (Ohio Ct. App. Oct. 14, 1994)..

53. Id. at *1-2.

54. See Western Nat. Mut. Ins. Co. v. University of North Dakota, 643 N.W.2d 4, 15-16 (N.D. 2002); Houser v. Gilbert, 389 N.W.2d 626 (N.D. 1986).

55. Id. at ¶¶ 3-4.

56. Id. at ¶¶ 14-26.

57. Id. at ¶ 14 (citing Sabella v. Wisler, 377 P.2d 889, 895 (Cal. 1963)). The insurer protested that the flood was necessarily the efficient proximate cause because it occurred before the sewer backup and set it in motion, but the court declined to disturb the jury’s finding of fact on this point. Id. ¶¶ 27-33.

58. Id. at ¶ 14 (citing Sabella v. Wisler, 377 P.2d 889, 895 (Cal. 1963)). The insurer protested that the flood was necessarily the efficient proximate cause because it occurred before the sewer backup and set it in motion, but the court declined to disturb the jury’s finding of fact on this point. Id. ¶¶ 27-33.

59. Wallach v. Rosenberg, 527 So. 2d 1386 (Fla. 3d DCA 1988); see also Westmoreland v. Lumbermens Mut. Cas. Co., 704 So. 2d 176, 187 (Fla. Dist. Ct. App. 4th Dist. 1997) (holding that insurer could not rely on an exclusion to avoid defending its insured against both potentially covered and uncovered claims because a jury could find that any one of the alleged insured risks was the legal cause of the damages in the case).