Smoke & Soot Residue From Candle Burning: Is This Type of Loss Excluded Under the Standard Homeowners Policy? – Claims Magazine
ISSUE:
Over the course of a couple of weeks, the insureds burned scented candles in their home. Soot and smoke discharged from the candles and accumulated on the walls, ceilings and floors of the home as well as on the insureds' personal property. A forensic engineering firm performed an indoor air quality assessment and confirmed that the black film and streaks on the walls and floors were caused by the candle burning. The insureds' HO 03 04 91 policy contained the standard pollution exclusion in which smoke and soot were listed as pollutants. In the event the release or escape of the pollutant was itself caused by a Peril Insured Against under Coverage C, the exclusion would not apply. The policy contains a Coverage C peril for smoke, meaning "sudden and accidental" damage from smoke. The question arises: Would the loss caused by the discharge from the candle burning be excluded under the pollution exclusion, or would the discharge of the pollutants be considered "sudden and accidental" damage from smoke?
RESPONSE:
The loss would be excluded under the pollution exclusion. The by-products of the candle burning – soot and smoke – are pollutants. Because the release of the soot and smoke did not occur in a "sudden and accidental" fashion, the smoke peril does not apply. Therefore, the entire loss is excluded under the pollution exclusion.
ANALYSIS:
In Sokoloski v. American West Ins. Co., 1999 WL 301288 (Mont. 1999), in an opinion that has not been released for publication in the permanent law reports, the Montana Supreme Court upheld the application of the pollution exclusion to a loss caused by soot and smoke generated by candle burning. In so holding, the court rejected the insureds' argument that the pollution exclusion should only apply to discharges of pollution into the environment from sources outside the home. Instead, the court noted that where the policy of insurance included smoke and soot within its definition of "pollutants," no such restriction as suggested by the insureds was warranted.
The court then proceeded to examine the "sudden and accidental" element of the smoke peril. The court held that the cumulative effect of smoke and soot damage from scented candles that have been burned over a period of five weeks was not "sudden." While noting the split in authority around the country concerning the meaning of "sudden and accidental," the court ruled that "sudden" must be given a temporal meaning and could not be limited to its "expected" sense since such a limited interpretation would overlap with "accidental" in violation of the principal that terms in a contract should be given an independent meaning.
The meaning of "sudden and accidental" was also addressed in New England Gas & Elec. Ass'n v. Ocean Accident & Guar. Corp., 116 N.E.2d 671, 650 (Mass. 1953). In that case, the court held that the cracking of a spindle of a turbine was a "sudden and accidental deforming, breaking, or rupturing of the turbine." While the court acknowledged that the origin of the stress on the spindle which eventually caused it to crack could be traced back to an improper adjustment that occurred eleven months before the crack occurred, the court refused to hold that the cracking was not sudden and accidental.
First, the court discussed the fact that "[t]he term accident, unlimited except by the word sudden, should be given its ordinary meaning as denoting an unexpected, undesigned, and unintended happening or a mishap and as including an event which, according to the common understanding of people in general, would rightly be considered as [sic] accident." 116 N.E.2d at 652-53. The court then concluded that the cracking of the spindle was an accident.
Second, the court went on to discuss that the cracking also needed to be sudden. The court distinguished sudden causation from sudden damage, requiring only that the damage to the spindle be sudden. In other words, "'although the factors of causation may have been gradual and even slow in operation, the [cracking] itself doubtless was sudden, at least in its beginning.'" 116 N.E.2d at 652 (citation omitted). The court then concluded that the cracking of the spindle was sudden.
Even in light of the meaning attributed by the court to the phrase "sudden and accidental" in New England Gas, it is unlikely that the soot damage from the candles in this scenario would be considered "sudden and accidental" damage from smoke. While the soot damage may have been unexpected or unintended (i.e., accidental), it was not sudden. The build up of soot most likely occurred over the course of several weeks while the candles were being burned by the insureds. There was no sudden damage as existed in New England Gas.
The application of the pollution exclusion to the smoke generated by candles in Sokoloski is consistent with the holding in Demakos v. Travelers Ins. Co., 613 N.Y.S.2d 709 (A.D. 2 Dept. 1994). In that case, the insured landlord sought coverage under his business liability insurance policies after he was sued by a tenant for injuries caused by cigarette smoke that seeped into the tenant's apartment from the adjacent pool and billiard club. The court upheld the insurer's denial based on the pollution exclusion. The policies defined the term pollutant to include vapor, smoke, and fumes.
CONCLUSION:
In light of the insured's admission that they burned the candles over a period of four to five weeks and that they were aware the candles were releasing smoke and soot as they burned, such a gradual accumulation of soot and smoke would not be considered "sudden and accidental" for purposes of insurance coverage. Consequently, the pollution exclusion would preclude coverage for the entire loss.
