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Quote of the Day - Until you walk a mile in another man's moccasins you can't imagine the smell. - Robert Byrne
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The Tail Wags the Skunk

It's a rare day when I choose to take on a panel of appellate judges, but this one seems an easy task. Here's the pitch, with apologies to one of my favorite teams:

Skunk gets under house, homeowner calls insurance company. Insurance adjuster sends out restoration company to deodorize the house. Restoration company allegedly uses chemicals and deodorizers, and homeowner gets sick. Homeowner sues restoration company, restoration company makes a claim to its insurance company.

Then, of all things, restoration company gets its claim denied. Surprise. Strike three, yer out.

Insurance company says there's an absolute pollution exclusion in the policy. Restoration company sues.

Twice now, Courts have upheld the insurance company's position. Deodorizers are a pollutant, they say.

What?

Let me see here. The policy exclusion says not covered if the cause of the injury is a "irritant or a contaminant." I don't know whether the deodorizer used was this product, but even if it wasn't, what happened here?

Let's look at it again. What is the original pollutant?

Right - the skunk smell. What is the deodorizer designed to do? Right again - remove the smell. Make it smell better, less like a skunk.

Nowhere in the Court of Appeal's ten-page opinion do they explain how a deodorizer - that makes things smell better - qualifies as an irritant or contaminant.

It's the exact opposite. Call me silly, but I would have reversed the trial court.

Maybe the judges would have gotten the idea better with an actual demonstration of the effects of the skunk smell, followed by the deodorizer. Think about the possibilities. How about a scratch and sniff patch in the brief to the Court, followed on the next page by the deodorizer?

Nothing like reality to drive home a point.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, October 21, 2004 at 20:51 Comments Closed (0) |
 
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