In Mauro v. Ohio Security Insurance Co., No. 20-cv-3319 (USDC, ED PA. October 29, 2021), the Court held that a coverage exclusion for Silica or Silica Dust precluded the plaintiff from cashing on his assigned claim against this Liberty Mutual subsidiary company.
In the underlying suit, plaintiff Mauro won a $375,000 damages award in Pennsylvania state court against Diamond Contract Flooring, LLC (“Diamond”) for lung injuries he suffered after being exposed to the floor leveler product used at the construction site he was supervising without protective equipment. Diamond hired Mauro’s employer, Axis Construction Management, to install a new floor at the Philadelphia Airport Marriott. Mauro, supervising the work from the center of the construction area, did not wear a dust mask. Nearby, Diamond workers were mixing Novoplan Easy Plus, a floor leveler product that contains silica sand. After developing a cough, congestion, wheezing, chest pain, and a fever, Mauro was taken to the hospital and treated for COPD.
Diamond sent the Complaint to its insurer, Ohio Security Insurance Company (“Ohio Security”), which denied coverage and disclaimed any duty to defend Diamond in the Underlying Lawsuit, pointing to a provision in Diamond’s insurance policy (the “Policy”) that excluded coverage for injuries arising out of the inhalation or ingestion of “silica” or “silica-related dust” (the “Silica Exclusion”). After the verdict in his favor, Diamond assigned its claims against the insurer to Mauro, who in turn filed his Declaratory Judgment action in Pennsylvania Federal Court. The insurer moved for summary judgment based on the Silica Exclusion, and the District Court granted the motion. There was no dispute that the product complained of contained Silica.
The Court found the policy language to be unambiguous, and there was no evidence that the policy did not meet Diamond’s expectations. The District Judge stated: “The Policy unambiguously provides that injuries due to inhaling silica dust are excluded from coverage by the Silica Exclusion. Further because silica sand is a form of crystalline silicone dioxide, any claim premised on the inhalation of silica sand also falls unambiguously under the Silica Exclusion. Accordingly, Ohio Security has no duty to provide coverage or indemnify Diamond for the judgment against it.”