January 6, 2016

Is Spray Foam Pollution? The Fifth Circuit Has Spoken.

fifth circuitOn December 23, 2015 the United States Court of Appeals Fifth Circuit Judges Davis, Barksdale and Dennis filed a ruling affirming a lower courts decision that the Evanston Insurance Company is not obligated to honor insurance policies with the spray foam manufacturer Lapolla Industries and defend Lapolla in a lawsuit brought by Michael and Kimberly Commaroto of Connecticut. The Commarotos filed the lawsuit after they were forced to move permanently out from their home after spray foam insulation was installed there.

The reason: Pollution exclusions.

The decisions notes:

…the policies at issue include total pollution exclusion that excludes coverage for:

  1. Pollution

(1) “Bodily Injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.

. . . .

Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, electromagnetic fields and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

The decision goes on to note the summary of the operative facts of the Commaroto complaint provided by the district court:

The plaintiffs’ operative pleading alleges that vapors from the SPF insulation caused their bodily injuries and property damage. According to the second amended complaint, the defendants “failed to seal off completely areas in which vapors could be transported from the areas under renovation and construction to the existing area[] of the house[,] in which the Commarotos, their three minor children, and their houseguest, Schlegel, were living and sleeping during the construction process.” (Docket Entry No. 24, ¶ 30). As a result, the plaintiffs allegedly suffered adverse health effects, incurred costs in investigating and remediating the situation, and suffered property losses in the form of personal belongings affected by the vapor and their inability to use their newly renovated home. (See id., ¶¶ 31 (describing the failure to contain “vapors” from the SPF insulation), 38 (alleging a “strong odor” and “symptoms of respiratory distress”), 41 (“respiratory distress”)…

The judges then state:

A plain reading of the complaint shows that all of the plaintiffs’ injuries, both personal injury and property damage, were alleged to have been caused by “pollution” as defined by the policies.

Going somewhere unexpected, Lapolla’s attorneys raise the “asbestos” word.

On appeal, Lapolla has attempted to refine its position, arguing: “To be sure, the Commarotos could still argue that although the `unsafe and dangerous’ SPF may not pose a health risk, like asbestos, left undisturbed, it may still negatively affect the value of their home.”

The judges conclude:

We conclude, essentially for the reasons set out in that opinion as supplemented above, that Evanston is entitled to a judgment declaring that Evanston owes no duty to defend Lapolla in the Commaroto suit.

Sound sustainable?

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13 Responses to Is Spray Foam Pollution? The Fifth Circuit Has Spoken.

  1. Barbara Smith January 7, 2016 at 2:35 pm #

    I’ve heard so many horror stories from using polyethylene SF insulation, it’s not worth the risk. Instead, use wet spray cellulose and a double wallsystem.

  2. Robert Haverlock January 12, 2016 at 6:24 pm #

    Barbara, that leaves other issues out on the table, such as spraying a very to sometimes really wet material, pouring it into a dry cavity, and with the correct humidity, say again, humidity is key in letting this dry out…subs don’t like to wait, and this has to be on the “timeline” calendar by the builder as a waiting period…

    That said, I still like cellulose over just about everything else, with the exception of mineral Wool.

  3. J Peters January 16, 2016 at 10:18 am #

    It continues to amaze and confuse me as to why 475 continues to take the aggressive and border line slanderous stance on SPF’s use in construction. As a contractor of insulation installation, much of the products we install are SPF. Still many more are fiberglass and mineral wool. The products we offer are largely based on demand. While demand is a motivating force in material selection, we still have the ability to influence purchasing decisions with end users, architects and builders. While I find some merit in the systems 475 promotes; in addition to an interest in working with the products – I have a hard time getting behind the brand when they spend more time bashing alternative products then creating an inclusive environment to welcome all potential customers. Insulation installation contractors would, could & should be your biggest customer base. To stay relevant, insulation contractors must offer popularly demanded products that are vetted through decades of use, approved by code and 3rd party tested. We do so out of necessity, not personal preference. I strongly advise you to rethink your sales and marketing strategy. Its bad business. Guys: I want to drink the kool-aid you are selling, but you make it hard when you slenderize a product segment (all foam insulation) that is regularly used by the very people that could/should install the products you sell.

    The title of the article is carefully word-smithed slander. The ruling by the fifth circuit is referring the policy coverage of negligently installed SPF. How you extracted: “Is SPF pollution?” from that is just wrong. Properly installed SPF is a relevant building product used for efficiency. And it should go without saying, all insulation contractors installing any insulation, should hold a ‘contractors pollution liability’ insurance policy. In addition, all general contractors should hold a pollution liability policy. It covers many voids that general liability does not protect. This is of particular importance with tight envelope construction. As a distributor, does 475 hold product liability insurance? Does holding product liability policy that mean your products are potentially unsafe? There is an important lesson to be learned with this story. The spin you are applying to it is divisive.

    • Ken January 16, 2016 at 1:12 pm #

      J Peters,
      We look to work closely with insulation contractors and care about your opinion – so we very much appreciate your comment. We admittedly do take a hard line against spray foam – but not an extreme line. Our working principle, as noted in the post, is “Less is Best”. We might compare it to asking: “Does the sun cause cancer?” or “Are fossil fuels destroying our livable climate?” These are all valuable questions that can inform choices as we go forward. In our opinion far too few have raised hard questions about spray foam’s problems and when raised is done timidly. If we want to shake the status quo, we simply can’t be timid. How strong the tactics are, is an ongoing calculation – and certainly our relationship with companies like your own, is a consideration. We want to build a good working relationship and enable you to make ever more robust, sustainable and healthy enclosures – less foam and more cellulose/mineral wool/fiberglass. I hope we can.

  4. Mike Conners January 19, 2016 at 1:18 pm #

    La Polla deploys the Honeywell Solstice blowing agent which has a GWP of 1.00. I’d rather go so called “foam-free” in my current PHI EnerPHit certification project. That said, in certain elevation sections use of 2 inches of La Polla CSF makes a lot of sense where wall depth is a major issue. Do you really think the La Polla/Honeywell industry transformative solution with a GWP of 1.00 vs the status quo of 1400 is so bad as to take the unbalanced tone 475 seems to advocate? We’re using DPC on interior cavities and Roxul outside above and below grade, below the slab, and on the roof deck BTW.

    • Ken January 19, 2016 at 1:30 pm #

      Mike,
      Yes, the progress that is being made regarding the blowing agents is great. Every choice is a judgment call, but we like the basic posture of Less is Best. Foam’s not going away, we just want to make sure the folks are thinking about it.

  5. David January 21, 2016 at 12:07 pm #

    I agree with Mike Connors and J Peters…

    I like your products but your one-sided and often exaggerated comments about spray foam make it hard to view your business as an objective and trustworthy supplier. I remember one article in particular, suggesting that spray foam is not a good air barrier, that was simply absurd. Yes, there are sometimes installation problems that reduce its effectiveness. But there are installation problems with mineral wool and fiberglass as well. Have you ever tested spray foam? I have and I can assure you that it is an extremely effective air barrier in the vast majority of installations.

    • Ken January 21, 2016 at 1:36 pm #

      Hi David,
      I think the distinction is simply that we have much higher expectations for the air barrier. You cannot reach Passive House airtightness with spray foam, it simply leaks too much. So in our view spray foam is not a good air barrier – it is a poor one. We have tested spray foam installations and we have been brought in to tighten leaky spray foamed buildings. It appears to us that there are just too many variables for the spray foam to overcome to really be effective.

  6. Tim J February 22, 2016 at 2:31 pm #

    I have done blower door tests on homes done with spray foam. The cavity can be sealed, not always, but the rest of the home also has to be done. I am in Zone 7, don’t see any use for open cell at all. Closed cell is commonly defective in my area. Mostly because of installers, partly product and machinery. I am an insulation installer and will only put in BIBS,cellulose, and mineral wool. Wet spray cellulose not an option either. Will not add water to walls. I talked to an old foam seller last year here at a conference . He has been selling closed cell for about 30 years. He will not sell any foam less than 2# and then the installers have to have a lot of training to install it his way. Biggest thing he sees is too low temperatures, both air and substrate. Another thing he sees is metering equipment not working correctly. Short version is, it is a complex process to get right, not to mention environmental issues.

  7. william March 7, 2016 at 6:57 pm #

    Instead of using SPF why not just build with ICF, no spraying necessary and no floating particles-no VOC-No mold/mildew-of course its a bit hard to retrofit!

    • Ken March 8, 2016 at 1:03 pm #

      William, Agreed – ICF is a big step in the right direction.

  8. Amanda December 22, 2016 at 6:08 pm #

    Thank you, 475, for caring about this industry and not wanting to see poor products or poor installations bring it down. Together we can do so much better for building owners and this planet.

    • John January 4, 2017 at 11:06 am #

      Thank you Amanda, for being one of the ones doing great work – Dolphin Insulation is fantastic!

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