As interpreted by a federal District Judge in Pennsylvania, a CGL or commercial general liability insurance policy did not extend "property damage" coverage to the piles of mulch alleged by a Pennsylvania Township, regardless of potential "loss of use" damages. In the following quotation, citations in the District Court's decision are omitted to lend a potentially greater sense of universality to the nature of the holding in this Pennsylvania case:
The key question is whether the Complaint's alleged factual allegations regarding the mulch piles constitutes “property damage” under the Policy. The facts alleged by the Township's Complaint that the mulch piles are too high and impairing the enjoyment of the adjoining residents' properties clearly do not fall under the “[p]hysical injury to tangible property” definition of “property damage” provided for in the Policy. The question of whether the alleged harm caused by the high mulch piles' would constitute a “loss of use” under the Policy is much less straightforward.
Our analysis here centers on whether a public nuisance is considered a “loss of use” under the Policy. A public nuisance is “an unreasonable interference with a right common to the general public.” (Citation omitted.) A public nuisance differs from a private nuisance, which “requires an invasion of another's interest in the private use and enjoyment of his or her land.” (Citation omitted.) By contrast, a public nuisance “is an inconvenience or troublesome offense that annoys a whole community in general.” (Citation omitted.) This difference is not academic, as the “doctrine of public nuisance protects interests quite different from those implicated in actions for private nuisance.” (Citation omitted.) A private nuisance harms a specific person or property, while a public nuisance, which may cause harm to many, does not necessarily cause special or specific harm to a single property owner. (Citation omitted.) Recognizing this difference, Pennsylvania courts have determined that public nuisances can only allow property owners to pursue claims for property damage when a plaintiff shows that she suffered special harm.
Everest Indem. Ins. Co. v. Valley Forge, Inc., 140 F.Supp.3d 421, 427-28 (E.D. Pa. 2015).
Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016). All rights reserved.
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