8TH CIRCUIT COURT OF APPEALS, INTERPRETING MINNESOTA LAW, FINDS THAT CARBON MONOXIDE IS A POLLUTANT FOR PURPOSES OF THE APPLICATION OF A POLLUTION EXCLUSION

In Travelers Property Casualty Co. of America v. Klick, 867 F.3d 989 (8^th Cir. 2017) the 8^th Circuit held, under Minnesota law, that carbon monoxide was a pollutant for purposes of a policy’s pollution exclusion. The pollution exclusion in question required the pollutant to be released into the atmosphere. Under the case facts there was a carbon monoxide build-up in the engine compartment of a boat. When the boat owner went to check on the engine, the boat owner opened the engine compartment hatch, which allowed carbon monoxide to be released into the wheelhouse of the boat. The boat owner was injured when he lost consciousness and fell into the engine compartment and was severely burned while lying on the engine. The boat owner argued that his injuries did not arise out of the release of carbon monoxide into the atmosphere because the engine compartment did not contain “atmosphere.” However, the 8^th Circuit rejected this argument. The court found that the boat owner was exposed to a pollutant that was not in a controlled environment. The court also found that a reasonable person in the position of the insured would have understood that a person in the wheelhouse of the boat was in “atmosphere.”