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    Post: Asbestos disturbance during abatement

    Posted by Sharon on 3/18/05

    This is an FYI. For those of you who are writing
    remediation scopes, asbestos in the building sometimes
    becomes an issue. Who is responsible for it's removal once
    it has become disturbed? Maybe this will help clarify
    things and make your jobs a bit easier. According to the
    California courts, if the asbestos is disturbed during
    remediation, then it is part of the covered loss.
    Exclusion Doesn’t Apply To Asbestos Abatement As Damage
    Rather Than Cause
    SAN DIEGO — Because asbestos abatement costs were
    not “caused directly or indirectly by . . . pollution,” but
    by a fire, a covered peril, the pollution exclusion does
    not bar coverage, a California appeals court ruled Dec. 30
    (Abigay Gonzales, et al. v. Western Mutual Insurance Co.,
    No. D044000, Calif. App., 4th Dist.; 2004 Cal. App. Unpub.
    LEXIS 11903 Shepardize).

    (Opinion available. Document #03-050111-103Z.)

    The Fourth District Court of Appeal reversed a ruling
    barring coverage to homeowners seeking coverage for the
    cost to remove asbestos from their home, which existed in
    the ceilings and had become friable and exposed after a
    fire. The San Diego County Superior Court erred in
    granting summary judgment to Western Mutual Insurance Co.,
    it held.

    Cause Versus Damage

    According to the language of Abigay Gonzales and Maria
    Castelo’s all-risk property policy, the exclusion refers to
    excluded causesof damage rather than excluded items of
    damage, the appeals court concluded.

    Western accepted coverage for the fire loss but refused to
    pay for the removal of asbestos based on the pollution

    Even though asbestos is included in the definition of
    pollution, in this case, the asbestos — or the cost to
    remove it — was the claimed loss, not the cause of the
    loss. Generally, the question of whether a peril was the
    efficient proximate cause is a factual issue, but in this
    case, the insurer admitted that the asbestos removal costs
    were an item of damage and not caused by pollution.

    Thus, the appeals court held that the pollution exclusion
    in this policy applies only to damages caused by pollution,
    and in this case, pollution did not cause the claimed

    “Viewing the policy as a whole, an insured would have
    reasonably understood that the pollution exclusion
    contained in the ‘Section 1 — Exclusions’ portion of the
    policy would not exclude damages caused by a fire, and
    instead would exclude only those damages caused by
    pollution as that term is defined in the policy,” the court
    held in an unpublished opinion.

    William J. Brown of Encinitas, Calif., represents the
    homeowners. Randall L. Winet of Winet, Patrick & Weaver in
    Vista, Calif., is counsel for Western

    This is based on California Insurance Code 531. 531 is one
    of the original laws in the state of California, taken from
    the state of New York. Has a fascinating history. Started
    out with the shipping industry in the 1800's, as many
    insurance laws did.

    531. An insurer is liable:
    (a) Where the thing insured is rescued from a peril
    against, and which would otherwise have caused a loss, if,
    in the
    course of such rescue, the thing is exposed to a peril not
    against, and which permanently deprives the insured of its
    possession, in whole or in part.
    (b) If a loss is caused by efforts to rescue the thing
    from a peril insured against.

    Sharon Kramer

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