Faced with an unambiguous lead contamination exclusion, a damages claimant, alleging personal injury to a child from ingesting lead from the paint in a rented property, unsuccessfully contended that the exclusion was unenforceable because it was allegedly hidden 30 pages into the policy.
According to the exclusion, the insurance did not apply to injury “arising out of the ingestion, inhalation or absorption of lead in any form”. The wording was held to be unambiguous and excluded coverage for the claim.
The declaration sheet (schedule) expressly stated that there were other forms and exclusions within the depths of the entire policy and listed them. Although the lead contamination exclusion was listed without the word “lead” appearing in its place on the list, there was no law imposing a requirement on insurers to identify all policy exclusions with perfect precision in such a listing nor that there must be a full explanation about the exclusion on the schedule. There was nothing confusing about the location of the exclusion in the policy nor any confusion about the overall presentation of the policy’s terms. The schedule succinctly provided the dates and amount of coverage and indexed the other relevant terms including the exclusion in question. The lead contamination exclusion on page 30 bore a heading in capital letters that distinguished it from other exclusions and clearly identified its purpose. The general approach of insurers separately presenting the schedule, a definition section, followed by other terms and exclusions is “time-honoured and does not in itself generate an ambiguity”. The text was neither overly technical nor did it contain hidden pitfalls. The terms of the exclusion was capable of being “understood without employing subtle or legalistic distinctions” and nothing was “obscured by the fine print” nor did it require “strenuous study to comprehend”.
The claim for an indemnity failed. The construction of the policy is worth considering.
Certain Underwriters at Lloyd’s v New Street Area Development, LLC : Superior Court of New Jersey Appellate Division: No A-1603-20