Two lawsuits placed by victims of a 2009 workplace outbreak of Legionnaires Disease were remanded back to the trial courts last Friday, October 15th, in a landmark decision by Wisconsin’s District IV Court of Appeals. As reported by Reedsburg Times Press, Appellate Judge Brian Blanchard has reversed the decisions of Sauk County judges Guy Reynolds and Patrick Taggart, who had previously dismissed separate suits by Patrick J. Connors and Roy Haug.
In 2009, the same year it filed for bankruptcy, Grede Foundries, Inc., located in Reedsburg, WI, was investigated by OSHA after it discontinued water treatment of its cooling towers around April 2009. According to the OSHA report,
“The weather was unseasonably warm and humid from June 18 through June 29, 2009. From June 16 through July 8, 2009, twelve people were diagnosed with pneumonia. Ten of the twelve worked at the facility, and five of the twelve were diagnosed with Legionnaires’ disease. Eleven water samples and five swab samples were taken throughout the facility, from both potable and nonpotable sources. The results of the sampling showed that one cooling tower (IT8) had 220 colony-forming units per milliliter (CFU/ml) of Legionella pneumophila serotype 1.”
OSHA ranked the violation as “Serious” and imposed a $4,000 penalty upon Grede Foundries.
J. Patrick Connors, a Grede Foundries employee, filed his initial lawsuit in Sauk County’s circuit court against the foundry’s insurers (who held a $1 million per injury policy at the time of the LD outbreak) after he contracted Legionnaire’s Disease at the worksite. At that time, Judge Guy D. Reynolds ruled in favor of insurer Charter Oak Fire Insurance Company, maintaining that a pollution exclusion provision in the foundry’s insurance policy barred coverage for Connors’ alleged injuries from Legionnaire’s Disease. As Friday’s Court of Appeals Decision (Appeal No. 2014AP2990) explains, the court in this first trial decided that the Legionella bacteria inhaled by Connors at his workplace “were ‘contaminants,’ which are defined to be ‘pollutants’ under the pollution exclusion.”
Connors’ appeals team successfully argued that the insurance policy provision was “ambiguous” because the Legionella bacteria “are not obviously in the nature of the commercial or industrial products or byproducts specified in the pollution exclusion, and therefore a reasonable insured could expect coverage;” the pollution exclusion clause in question applied only to industrial or environmental pollution, not to the Legionella bacteria. Court of Appeals Justices Blanchard, Kloppenberg, and Sherman agreed that the bacteria should not be automatically defined as industrial / environmental “pollutants” based upon the insurance policy’s ambiguous language.
A similar reversal was made, on nearly identical grounds, by these Justices for the family of decedent Roy Haug, who contracted legionellosis (Legionnaires’ Disease infection) when he was walking by the Grede Foundries property in the summer of 2009 (Appeal No. 2014AP2039). While Haug’s death in 2013 cannot be contributed solely to Legionnaire’s Disease, since he was also afflicted with lung cancer, medical records attest that he contracted his infection at the same time and in the same vicinity as the other Grede Foundries victims.
If you or a family member have contracted Legionnaires’ Disease in the workplace, you can contact attorney Fred Pritzker at 1-888-377-8900 or use our free online consultation form.