The federal district court predicted the Missouri state courts would not exclude coverage for damages caused by a concrete sealant, TIAH. United Fire & Cas. Co. v. Titan Contractors Serv., 2013 U.S. Dist. LEXIS 10716 (E.D. Mo. Jan. 28, 2013).
The insured was a construction clean up company. It supplied day labor and cleaned construction projects when they were finished. The insured also cleaned and sealed concrete floors.
The underlying plaintiffs sued the insured, alleging they had suffered injury based upon exposure to TIAH applied in their office space by the insured. United Fire agreed to defend, but subject to a reservation of rights because it contended damage caused by TIAH was excluded under the pollution exclusion. United Fire filed suit for a declaratory judgment on its coverage obligations.
The federal district court reasoned that the pollution exclusion did not apply if the court found the definition of pollutant to be beyond the reasonable expectations of the insured. A reasonable policy holder in the insured's position would not expect that injury or damage arising from its use of TIAH in the course of its business would be considered pollution within the meaning of the policy's pollution exclusion.