Certified questions, in accordance with NRAP 5, regarding the interpretation of exclusionary provisions in an insurance policy. United States Court of Appeals for the Ninth Circuit; Carlos F. Lucero, Consuelo M. Callahan, and N. Randy Smith, Judges.
McDonald Carano Wilson LLP and James W. Bradshaw and Debbie A. Leonard, Reno; Woolls & Peer and H. Douglas Galt, Los Angeles, California, for Appellant.
Burton Bartlett & Glogovac and Scott A. Glogovac, Reno, for Respondent.
Armstrong Teasdale LLP and Kevin R. Stolworthy and Conor P. Flynn, Las Vegas, for Amicus Curiae Complex Insurance Claims Litigation Association.
Douglas, J. We concur: Gibbons, C.J., Pickering, J., Hardesty, J., Parraguirre, J., Cherry, J., Saitta, J.
BEFORE THE COURT EN BANC.
The United States Court of Appeals for the Ninth Circuit has certified questions of law to this court regarding the interpretation of two exclusionary provisions in a motel's insurance policy issued bye appellant Century Surety Company: the absolute pollution exclusion and the indoor air quality exclusion. The certified questions ask:
(1) Does the pollution exclusion in Century's insurance policy exclude coverage of claims arising from carbon monoxide exposure?
(2) Does the indoor air quality exclusion in Century's insurance policy exclude coverage of claims arising from carbon monoxide exposure?
We determine that, when applied to the facts of this case, both exclusions are ambiguous because they are subject to multiple reasonable interpretations; therefore, under the circumstances presented, we answer these questions in the negative.
Four people died from carbon monoxide poisoning while sleeping in a room directly above a pool heater in the Casino West Motel, the respondent here. Casino West sought coverage for the deaths from its insurer, Century Surety Company, but Century denied the claims based on two provisions of Casino West's general liability policy: the absolute pollution exclusion, which excludes coverage for " '[b]odily injury' or 'property damage' arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of 'pollutants,'" and the indoor air quality exclusion, which excludes coverage for " '[b]odily injury,' 'property damage,' or 'personal and advertising injury' arising out of, caused by, or alleging to be contributed to in any way by any toxic, hazardous, noxious, irritating, pathogenic or allergen qualities or characteristics of indoor air regardless of cause.'" After Century denied ...