Auten v. Employers Nat. Ins. Co.
| Decision Date | 01 December 1986 |
| Docket Number | No. 05-85-01387-CV,05-85-01387-CV |
| Citation | 722 S.W.2d 468 |
| Parties | Charles W. AUTEN, Jr. and Helen Auten, Appellants, v. EMPLOYERS NATIONAL INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Martha L. Russell, Dallas, for appellants.
Phillip W. Gilbert, Dallas, for appellee.
Before VANCE, McCLUNG, and McCRAW, JJ.
Charles and Helen Auten sued Employers National Insurance Company to recover under an all-risks homeowner's insurance policy after a professional exterminator's misapplication of pesticides rendered their home uninhabitable. Employers defended on the ground that the Autens' loss was caused by contamination, a peril excluded by the terms of the policy. Based on the jury's findings that the misapplication of pesticides was negligent, that it caused physical loss to the Autens' home and that this loss was not caused by contamination, the trial court found that Employers was liable under the policy but only awarded the Autens their attorney's fees, apparently because the Autens had settled with the exterminator.
The Autens complain that the trial court erred in failing to award the loss in the value of their home and their increased living expenses. Employers insists that the trial court should have rendered judgment that the Autens take nothing because the evidence at trial established as a matter of law that the loss was caused by contamination. We agree with Employers because the policy excludes all losses caused by contamination regardless of the cause of the contamination. Accordingly, we reverse the judgment of the trial court and render judgment that the Autens take nothing.
In the late summer of 1981, the Autens contacted an exterminating service to discuss the treatment of their master bedroom and living room to rid these areas of carpet beetles. After discussing with the exterminator's representative the type of pesticides to be used, the Autens agreed to permit the floors and baseboards of these areas to be sprayed with a synthetic duplicate of pyrethrum, a virtually odorless insecticide naturally produced by several types of flowering plants. However, upon entering their home after the exterminator completed the treatment, the Autens immediately detected a strong chemical odor and later discovered that a stain had appeared on the carpeting beneath an upholstered chair. They also noticed that their furnishings were covered with an oily film. They telephoned the exterminator and an employee recommended steam cleaning the carpeting in the treated areas after noting that the pesticide should not have caused these problems. The Autens not only followed the employee's advice but also thoroughly cleaned and ventilated the house. Nevertheless, their efforts failed to eliminate the stain, odor or oily film.
Soon thereafter, the Autens began to experience a variety of physical afflictions ranging from hoarseness to disorders of the gastrointestinal tract. Their adult children also became ill after visiting their parents' house. Suspecting that the exterminator had used some substance other than, or in addition to, the relatively harmless synthetic pyrethrum, and fearing the effects of further exposure, the Autens vacated their home and moved in with relatives.
At trial, the evidence demonstrated that the home contained an above-normal level of Dursban, an oil-based pesticide, distributed in a manner to indicate that it had been applied by fogging rather than by spraying. Further, a physician testified that the Autens' symptoms were consistent with the effects of exposure to Dursban and that the only remedy was to eliminate exposure to the toxin. The jury apparently chose not to believe the testimony of the exterminator's employee that he did not fog the home with Dursban because it found that the exterminator applied an excessive amount of an improper pesticide in an improper manner, which caused the Auten's loss. The sufficiency of the evidence supporting these findings is not questioned in this appeal.
Contamination occurs when a condition of impairment or impurity results from mixture or contact with a foreign substance. American Casualty Co. of Reading, Pennsylvania v. Myrick, 304 F.2d 179, 183 (5th Cir.1962); e.g., American Produce & Vegetable Co. v. Phoenix Assurance Co. of New York, 408 S.W.2d 954, 955-56 (Tex.Civ.App.--Dallas 1966, no writ) (when ammonia gas escaped from refrigeration system causing foodstuffs to be unfit for human consumption, the court held that the loss was not covered because of contamination exclusion). In its charge to the jury, the trial court submitted this definition of contamination.
There can be little doubt that Dursban was a foreign substance. The word "foreign" is synonymous with "inappropriate." Webster's Third New International Dictionary 889 (1981). The instructions printed on the Dursban label expressly state that it should not be applied by fogging as the evidence in this case demonstrates that it was. Thus, although Dursban may not be "inappropriate" for use in the home generally, it was certainly "inappropriate" to use it in the amount and in the manner employed by the exterminator. Neither can there be any question that the home was "impure" as the result of contact with Dursban. The expert testimony of chemists established that this toxin was deposited on surfaces throughout the home and that the Autens absorbed the chemicals through their skin by touching these surfaces. According to a testifying physician, once the active ingredient in Dursban is introduced into the bloodstream, it attacks the central nervous system causing the symptoms of which the Autens complained. We fail to see any distinction which would permit us to hold that the deposit of Dursban in the Auten home was not contamination when it has been held that contact of food with ammonia gas and the accidental mixture...
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