CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.  CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.

Today the Virginia Supreme Court, in answering a certified question from the federal Fourth Circuit, held unanimously that a homeowners’ insurance policy did not provide coverage for a loss caused by Chinese-made drywall. In TravCo Insurance Company v. Ward, Record No. 120347, slip op. (Va. Nov. 1, 2012), the court was asked to interpret exclusions for loss caused by: (1) latent defect; (2) faulty, inadequate, or defective materials; (3) rust or other corrosion; and (4) pollutants, defined to include any gaseous irritant or contaminant. The court held that “each of the four exclusions is unambiguous and reasonable in its form, scope and application and excludes damage resulting from the Chinese drywall from coverage.” Id. at 4. Here are a few quotes from the opinion:

  • Latent defect exclusion: “Although, as Ward argues, the sulfuric content of the drywall was potentially discoverable through testing after the product was manufactured, the actual defect is the release of sulfuric gases by the drywall. The future release of gas by the drywall was not discoverable. Ward lived in his home for approximately two years before discovering a problem with the drywall; the defect was ‘hidden or concealed, and not visible or apparent.’” Id. at 9-10.
  • Faulty, inadequate or defective materials exclusion: “[T]he drywall at issue in this case could not reasonably be said to perform its function; its sulfuric gases rendered Ward’s home uninhabitable. Further, the drywall is clearly defective.” Id. at 12.
  • Corrosion exclusion: “[Dictionary] definitions and the logical, common understanding of the term ‘corrosion’ do not draw a distinction between ‘naturally occurring’ and other corrosion. There is similarly no basis for reading a temporal element into the instant corrosion exclusion; the plain language of the policy and commonly understood definition of corrosion do not warrant such an interpretation. . . . Ward’s argument that the damage ‘was not caused by corrosion’ because the ‘damage was the corrosion itself’ is without merit. Such a construction would render this and similar corrosion exclusions meaningless, as the district court noted.” Id. at 15-16 (footnote omitted).
  • Pollution exclusion: “[T]he pollution exclusion could not reasonably be argued to invalidate coverage for ‘almost any condition or function’ in the Ward home. The pollution exclusion in the TravCo policy is not overbroad or unreasonable, and should be construed according to its plain language. . . .As for the nature of the sulfuric gases, Ward asserted the presence of ‘odorous fumes in the residence,’ described the gas as ‘toxic,’ and alleged that it caused ‘skin rashes,’ ‘lesions’ ‘sinus congestion,’ and ‘nosebleeds.’ These properties plainly place the sulfuric gases from the residence within the definition of ‘irritant or contaminant’ contemplated by the policy and commonly understood. . . . [I]t is difficult to envision how the sulfuric gases reached the air of the Ward home if not by the means encompassed by the ordinary meaning of ‘[d]ischarge, dispersal, seepage, migration, release or escape.” Id. at 20-21 (citation omitted).

Stephen Goldman of Robinson & Cole LLP argued this case on behalf of TravCo Insurance Company in the Virginia Supreme Court, and the briefs were prepared by Stephen Goldman, Wystan Ackerman and Daniel Sullivan of Robinson & Cole LLP.

SPECIAL DISCLAIMER: Because the Ward case is one in which Robinson & Cole LLP briefed and argued, we reiterate that the intent of this blog is to serve as an informational resource, not advertising for our legal services. Every case is different and the result achieved in the case described above may differ from the result in some other case, which may involve different facts, different applicable law or a different jurisdiction. Past results do not guarantee future results, and you should always consult your own lawyer about your own case.

Tags: Chinese drywall, coverage, covered cause of loss
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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.

Read more about Wystan Ackerman
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