Selective Insurance has gone to federal court, seeking a ruling that it owes no coverage for a flood of silica exposure lawsuits targeting EOS Surfaces.
In a complaint filed Sept. 24 in the U.S. District Court for the Eastern District of Virginia, Selective Insurance Company of South Carolina is asking a judge to declare it has no duty to defend or indemnify EOS Surfaces, LLC. At the heart of the dispute: whether insurance policies issued to EOS between Aug. 15, 2013, and Aug. 15, 2017, cover a group of lawsuits from workers who claim they were harmed by exposure to silica and other substances in stone products.
The underlying lawsuits – now coordinated in California – include more than 260 “Stone Countertop Worker Silicosis Cases.” According to the complaints, plaintiffs allege exposure to “stone dust containing silica and other toxins and carcinogens, as well as artificial stone dust containing respirable crystalline silica (including quartz and cristobalite), metals (including aluminum, antimony, arsenic, chromium, cobalt, copper, iron, manganese, nickel, titanium, tungsten, and vanadium) and volatile organic compounds from polymeric resins and other binders (including phthalic anhydride, benzene, ethylbenzene, and toluene) from this work, which caused plaintiff's lung disease characterized by pulmonary nodules, silicosis, pulmonary fibrosis, progressive massive fibrosis, and other forms of lung damage.” The complaints further allege that these exposures resulted in “substantial medical treatment, including hospitalizations and surgeries, and will need lung transplantation.”
Selective’s complaint asserts that its insurance contracts with EOS contain clear exclusions for both silica and pollution-related injuries. The insurer points to policy language stating, “This insurance does not apply to: Silica Or Silica-Related Dust… ‘Bodily injury’ arising, in whole or in part, out of the actual, alleged, threatened or suspected inhalation of, or ingestion of, ‘silica’ or ‘silica-related dust’.” The policy defines “silica” as “silicon dioxide (occurring in crystalline, amorphous and impure forms), silica particles, silica dust or silica compounds,” and “silica-related dust” as “a mixture or combination of silica and other dust or particles.”
The complaint also highlights a pollution exclusion, which bars coverage for “bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’.” The term “pollutants” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”
Selective claims that, because the lawsuits allege injuries from exposure to silica and other substances fitting these definitions, the insurer has no obligation to defend or indemnify EOS in the underlying cases. The company further contends that umbrella coverage is unavailable because the underlying limits have not been properly exhausted.
EOS disputes Selective’s position, asserting that the Silica and Pollution Exclusions do not bar coverage for the lawsuits in question. According to the complaint, EOS notified Selective of additional lawsuits and maintains that coverage should apply.
The court has not yet issued a decision, and the case remains at the complaint stage. Selective seeks a judicial declaration that it has no duty to defend or indemnify EOS under the general liability or umbrella coverage parts in connection with the underlying lawsuits.
