Last week I wrote about the smog, smoke, vapor, or gas exclusion and gave an example of how some courts hold that invisible vapors are not included in the common definition of “smoke.” As promised, this week’s post illustrates that other courts feel invisible vapors are included in the definition of “smoke.”
In Henri’s Food Products v. Home Insurance Co., 474 F. Supp. 889 (E.D. Wis. 1979), a warehouse owner ran into a contamination problem. The warehouse stored many items, from food products to chemicals. The Food & Drug Administration (FDA) conducted several tests on the products kept in the warehouse and determined that some of the food products had a chemical residue on them. Further tests showed that some of the chemicals kept within the warehouse had vaporized and permeated the warehouse.
The insurance policy stated,
Perils Insured Against…Smoke, meaning thereby only sudden and accidental discharge of smoke from other than industrial operations or agricultural smudging.
There was no argument that the chemical vapors were due to industrial operations or agricultural smudging, and as the Court pointed out,
The issue [was] whether vapor is within the common meaning of the word smoke.
Much like the case in last week’s blog, this court was unable to find any law on which to base its definition of “smoke,” so it turned to the dictionary.
Based upon this research and the Court’s own understanding of the word “smoke,” plaintiff’s suggestion that the vapor involved here was smoke, and thus within the policy coverage, must be accepted.
The warehouse owner prevailed, but this case, together with my blog from last week, illustrates how differently courts can rule. As always, keep in mind that this court applied Wisconsin law and the laws in other states may vary. Check back next week for another breakdown of the All-Risk Policy.
