The insurer prevailed on summary judgment establishing it had no duty to defend the insured roofing contractor for damage caused by tar escaping from a roof. Mesa Underwriters Spec. Ins. Co. v. Myers, 2016 U.S. Dist. LEXIS 108444 (W.D. Ohio Aug. 16, 2016).
Myers contracted to do roofing work for Sireco III LLC. Myers removed stones from the roof, patched all bad sections, and sealed the roof. To seal the roof, Myers used a roofing-tar sealant. The substance was a skin irritant and harmful or fatal if swallowed.
Myers expected the sealant to harden within twenty-four hours. When rain hit the area eleven days later, however, it washed the sealant off the roof and into the downspouts. It then flowed into the city's sewer system and eventually into Lake Erie.
The Ohio Environmental Protection Agency notified Myers, and he hired SpillTek Environmental Services, LLC to remediate the damage. Myers also notified his insurer, Mesa. Mesa refused to cover the remediation and after four days, Myers ordered SpillTek to halt its work. After being warned it was being considered a responsible party, Sireco hired SpillTek to finish the cleanup work. Sireco hired another company to remove the sealant remaining on the roof.
Sireco sued Myers, alleging he breached the contract and was negligent in failing to use the proper sealant. Mesa refused to defend or indemnify, contending that the underlying suit alleged defective workmanship. Mesa recognized it might have had to cover the consequential damages Sireco sought, i.e, the clean-up costs incurred to capture the sealant that entered Lake Erie. But Mesa determined that the policy's Total Pollution Exclusion applied.
Mesa filed suit for a declaratory judgment. A prior Ohio case held that claims of defective construction or workmanship were not claims for property damage caused by an occurrence under a CGL policy. Westfield Ins. Co v. Custom Agr. Sys., Inc., 133 Ohio St. 3d 476 (2012). Westfield held that truly accidental property damage generally was covered. Conversely, faulty workmanship claims generally were not covered, except for their consequential damages, because they were not fortuitous.
Therefore, the cost of remediating the roof was not covered. Where the damages claimed were the cost of correcting the work itself, there was no coverage. But the policy did cover the consequential damages that stemmed from the insured's work and the damage caused to the water system. Here, however, the pollution exclusion applied. The roofing sealant was a pollutant under the policy. Sireco's remediation costs stemmed from the dispersal, seepage, release and/or escape of the sealant from the roof and into Lake Erie.
Therefore, Mesa's motion for summary judgment was granted.
