An insurance company says it shouldn’t have to pay damages in another lawsuit because its policy didn’t cover the cause of action.
Atain Specialty Insurance Company filed its complaint in federal court June 5 against Dollar Tree Stores Inc., Greenbriar International Inc., Oralabs Inc. as well as C.T., a minor, and her mother Sarah King. Greenbriar International is the parent company of Dollar Tree.
According to the complaint, C.T. allegedly ingested the contents of a liquid breath mint container while under the supervision of her grandmother on May 16, 2013. The grandmother had purchased the product at a Dollar Tree location.
Following the incident, C.T. filed suit against Dollar Tree in state court in St. Louis, and Dollar Tree later filed a third-party complaint in the underlying action against Oralabs, which manufactured the liquid breath mints. Atain had issued a general liability policy to Oralabs.
“C.T. was exposed to a chemical known as cinnamal (hexyl cinnamaldehyde) after ingesting the liquid breath mints,” the complaint states. “C.T. was exposed to one or more hazardous substances, including an allergen, strong sanitizer and/or corrosive, as a result of ingesting the liquid breath mints.”
In this action, Atain seeks a declaratory judgment showing it owes no coverage for and no duty to defend or indemnify the defendants in connection with the original complaint.
“Each party to this action is believed to have an actual or potential interest that may be implicated by the relief requested,” Atain’s complaint states.
Atain claims its policy with Oralabs excluded coverage due to bodily injury caused by pollutants, noting the policy contained various exclusions that limit available coverage including the “Total Pollution Exclusion.”
“Coverage for the incident and the underlying action is unavailable to the defendants under the policy because C.T. sustained bodily injury caused by or arising out of in whole or in part, the actual alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants,’” the complaint states. “’Pollutants’ is defined in the policy as ‘any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste.
“As a result of ingesting the liquid breath mints, C.T. suffered from caustic ingestion suggesting she ingested some type of irritant or corrosive substance. Therefore, there is no coverage for the bodily injury suffered by C.T. as a result of the incident because the ‘Total Pollution Exclusion’ applies.”
Thus, Atain seeks a declaration that the incident is excluded from coverage under the policy that no liability coverage is available to defendants for the incident and underlying action under the policy because the same is a result of bodily injury caused by pollutants and that Atain has no duty to defend or indemnify defendants.
In addition to the declaratory judgment, Atain also seeks reimbursement of attorney fees, court costs and disbursements paid in the defense of the underlying action.
The insurance company is being represented by T. Michael Ward of Brown & James PC in St. Louis.
U.S. District Court for the Eastern District of Missouri case number 4:24-cv-00787