Barrett v. National Union Fire Ins. Co. of Pittsburgh

In Barrett v. National Union Fire Ins. Co. of Pittsburgh, 304 Ga. App. 314, 696 S.E.2d 326 [2010], National Union argued that plaintiff Barrett's injury arose out of "his exposure to natural gas and that such gas was a pollutant, as that term is defined under the Policy" thus excluding coverage for his injuries (304 Ga. App. 314, supra at p 3). Barrett's complaint alleged that the negligence of AGL employees allowed natural gas from a tap to accumulate in a ditch where Barrett was working "thereby creating an oxygen-deprived atmosphere and that it was the lack of oxygen that injured Barrett" (supra). The court found that natural gas was not a "contaminant or irritant" so long as the supply of oxygen was not impeded, and therefore it was not a pollutant under the policy exclusion. The court also construed the language "arising out of" in the exclusion. Under a coverage provision the language would cover "almost any causal connection or relationship" and that proximate cause in the strict legal sense was not required. (304 Ga. App. 314, supra p 5). When construing the same language in an exclusion, the words were held to require "but for" causality. The court held that the release of natural gas did not show a "definitive but-for' causal link" (supra). Rather the record showed that the negligence of AGL employees, who failed to monitor oxygen levels in the excavation ditch after the taps had been open for a longer than usual time period, failed to view the space in the ditch as an enclosed space, failed to provide respirators and failed to ensure that Barrett took sufficient breaks while working to retrieve a plug which had fallen into the gas valve, caused Barrett's injuries and that "but for" their negligence Barrett would not have been harmed by the exposure to gas. Barrett addressed an additional and crucial theory under Georgia law regarding enforcement of exclusions. The state of Georgia will not enforce an exclusion in an insurance contract which violates public policy. Barrett held that it would be a violation of public policy to allow an insurer to sell a liability policy to cover an insured whose main product is natural gas, while at the same time including an exclusion for all damages resulting from natural gas. "Georgia public policy disfavors insurance provisions that permit the insurer, at the expense of the insured, to avoid the risk for which the insurer has been paid' and for which the insured reasonable expects it is covered" (304 Ga. App. 314, supra at p 4).