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Markel unit not obligated to cover railroad worker’s ‘welder’s lung’

Railroad welder

A Markel Corp. unit is not obligated to provide coverage to a railroad worker who developed an occupational disease under his employer’s commercial general policy’s pollution exclusion, says a federal appeals court in upholding a lower court’s ruling.

John Flowers, worked as a rail carman for 22 years for Sandersville, Georgia-based Sandersville Railroad Co., maintaining a fleet of rail cars and spending much of his time welding, according to Friday’s ruling by the 11th U.S. Circuit Court of Appeals in Atlanta in Evanston Insurance Co. vs. Sandersville Railroad Co.

In 2012, doctors diagnosed Mr. Flowers with a lung disease called siderosis, or welder’s lung. Mr. Flowers made a claim to Sandersville in January 2013, and later filed suit under the Federal Employer’s Liability Act, alleging his disease was caused by occupational exposure to welding fumes containing iron, which nether Sandersville, nor its insurer, Deerfield, Illinois-based Evanston, a Markel subsidiary, dispute.

Evanston declined coverage based on a pollution exclusion in the railroad’s CGL policy. After Sandersville settled the claim for an undisclosed amount, Evanston filed suit in U.S. District Court in Macon, Georgia, seeking a declaratory judgment it was not obligated to provide coverage.

The district court ruled in Evanston’s favor and was upheld by a unanimous three-judge panel of the 11th Circuit in a ruling that included a concurring opinion.

Applying rulings by the Georgia Supreme Court, “we find that the policy’s pollution exclusion clause unambiguously excludes coverage of the Flowers welder’s lung claim,” said the ruling. In these cases, the injured parties had alleged their injuries resulted from the release of carbon monoxide and the from the inhalation and ingestion of lead paint, according to the ruling.

“We find no basis on which to distinguish the Flowers claim from the ones” in the state supreme court’s rulings, the appeals court panel said, in affirming the lower court ruling.

In November, a federal appeals court overturned a lower court ruling in Evanston’s favor in holding a multiple-vehicle crash caused by runaway truck was a single occurrence under a commercial auto policy. 




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