Drywall, silt and green construction: Liability landmines?

If an underwriter stopped by the office a few years ago and proposed that drywall leads to significant pollution liabilities, you probably would have laughed. Yet it turns out that drywall–pulverized limestone sandwiched between paper–isn’t as innocuous as one would assume. While all limestone contains sulphur, for reasons unknown, the sulphur levels in the now infamous Chinese drywall is significantly higher–so much so that, when moisture hits the sulfur-rich drywall, sulphuric gases are emitted. The results are claims of failing electrical and plumbing systems, the foul odor of hydrogen sulphide, and emerging concerns over adverse health affects.

Read more about dryall at AA&B’s sister publication, National Underwriter P&C, “Drywall problems could produce a host of insurance coverage issues.“

Dozens of lawsuits have been filed in various jurisdictions around the country against those who handled defective drywall, and the number is likely to grow. In a July 8 report, the U.S. Product Safety Commission noted that defective Chinese drywall has been reported in 21 states and Washington, D.C., so far, with most reports coming from Florida, Louisiana and Virginia. What many believe will follow is some of the most complicated and expensive litigation involving products pollution in the past decade. Factors complicating this litigation include the difficulty of suing foreign manufacturers and, the reoccurring question of whether sulphuric gases are “pollutants” as defined in typical commercial general liability (CGL) insurance policies. These gases are indeed likely to be treated as “pollutants” and, in many cases, subject to the pollution exclusion common in most CGL policies today.

Environmental liability isn’t new. MTBE (methyl tert butyl ether), a gasoline additive, enables cleaner combustion and lower emissions. Widespread usage began in 1980. But by 2000, many concerns arose over adverse effects on the nation’s water supplies. Just as the use of MTBE was phasing out, toxic mold exploded onto the scene in 2003. A jury in the case of Ballard v. Fire Insurance Exchange (part of the Farmers Insurance Group) initially awarded the Ballard family $32 million, including punitive damages, mental anguish and lawyers’ fees. Thousands of lawsuits alleging various damages and ailments from toxic mold have followed.

So what are the next potential environmental landmines? While it’s impossible to predict, several issues have been smoldering over the past few years including silt runoff from construction sites, green construction, and evolving environmental regulations.