TravCo Insurance Co. v. Ward

Present: All the Justices

TRAVCO INSURANCE COMPANY
OPINION BY
v. Record No. 120347 JUSTICE S. BERNARD GOODWYN
November 1, 2012
LARRY WARD

UPON A QUESTION OF LAW CERTIFIED BY THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Pursuant to Article VI, Section 1 of the Constitution of

Virginia and Rule 5:40, we accepted the following certified

question of law from the United States Court of Appeals for the

Fourth Circuit:

For purposes of interpreting an “all risk” homeowners
insurance policy, is any damage resulting from this
drywall unambiguously excluded from coverage under the
policy because it is loss caused by:

(a) “mechanical breakdown, latent defect, inherent
vice, or any quality in property that causes it
to damage itself”;

(b) “faulty, inadequate, or defective materials”;

(c) “rust or other corrosion”; or

(d) “pollutants,” where pollutant is defined as “any
solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapor, soot, fumes,
acids, alkalis, chemicals and waste?[”]

Background

Larry Ward sought coverage under his homeowners’ insurance

policy issued by TravCo Insurance Company (TravCo) for damages

allegedly caused by sheets of drywall manufactured in China

(Chinese drywall) that were installed in his home during its
construction. TravCo denied Ward’s claim and brought an action

in the United States District Court for the Eastern District of

Virginia, seeking a declaratory judgment that Ward’s

homeowners’ policy did not provide coverage for such losses.

TravCo moved for summary judgment, and the district court

granted the motion on the basis that the policy did not provide

coverage for the damages allegedly caused by the drywall in

Ward’s residence because of certain policy exclusions. Ward

appealed the ruling of the district court to the United States

Court of Appeals for the Fourth Circuit, which certified to

this Court the question of whether the policy exclusions are

applicable to Ward’s claimed losses. The Fourth Circuit

stated:

[W]e are uncertain whether the Supreme Court of
Virginia would conclude that each of these four
exclusions is unambiguous and reasonable in its form,
scope, and application in light of the unusual nature
of the losses involved, and the answer to this
question is sufficiently unsettled and dispositive
that certification is warranted.

Facts

In May 2007, Ward purchased a newly constructed home

located in Virginia Beach and shortly thereafter obtained a

home insurance policy from TravCo. The policy was effective

from May 7, 2007 to May 7, 2008, and was renewed through May 7,

2010. In May 2009, Ward experienced problems with the home and

2
hired an expert, Zdenek Hejzlar, Ph.D., 1 who determined that the

problems were caused by Chinese drywall installed in the house

during construction. Ward thereafter filed a complaint against

the developer, builder and drywall contractor in the Circuit

Court of the City of Norfolk. Ward alleged that the Chinese

drywall in his home emitted various sulfide gases and/or toxic

chemicals through “off-gassing” that created noxious odors and

caused health issues, damage and corrosion. He alleged breach

of contract, breach of warranties, negligence, unjust

enrichment, nuisance, and other counts claiming that his home

“was built with defective drywall.”

Ward subsequently filed a homeowners’ claim with TravCo in

September 2009; he stated that the drywall caused fumes and

odors, health issues, and damage to the home’s air conditioning

system, garage door, and flatscreen televisions. Ward

submitted to TravCo a report detailing the condition of his

home, prepared by Dr. Hejzlar. Dr. Hejzlar reported a sulfuric

odor in the home and confirmed the presence of Chinese drywall.

He also noted damage to the HVAC coils and other metallic

surfaces in the home and noted that the damage was associated

with sulfur emissions from the Chinese drywall.

1
Hejzlar received his doctorate in Occupational Safety and
Health Engineering and has investigated hundreds of homes and
condominiums reporting problems associated with Chinese
drywall.

3
 TravCo thereafter denied Ward’s claim, alleging that the

damage caused by the Chinese drywall was excluded from coverage

by the terms of Ward’s homeowners’ policy. Relevant to the

certified question are exclusions in the policy for loss caused

by:

(1) latent defect;

(2) faulty, inadequate, or defective materials;

(3) rust or corrosion; and

(4) pollutants, defined to include any gaseous irritant

or contaminant.

Analysis

The following well-settled principles of Virginia

insurance contract interpretation govern this case and are

applicable to all subparts of the certified question. Both

parties urge, to varying degrees, examination of decisions from

other jurisdictions, but this Court need not undertake such

analysis “because the law of this Commonwealth and the plain

language of the insurance policy provide the answer to the

certified question.” City of Chesapeake v. States Self-

Insurers Risk Retention Group, Inc., 271 Va. 574, 579, 628

S.E.2d 539, 542 (2006). We conclude that each of the four

exclusions is unambiguous and reasonable in its form, scope and

application and excludes damage resulting from the Chinese

drywall from coverage.

4
 This Court interprets the provisions of an insurance

contract under a de novo standard of review. E.g.,

Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 510, 551

S.E.2d 313, 317 (2001). “It is axiomatic that when the terms

in a contract are clear and unambiguous, the contract is

construed according to its plain meaning.” Barber v. VistaRMS,

Inc., 272 Va. 319, 329, 634 S.E.2d 706, 712 (2006). “ ‘Words

that the parties used are normally given their usual, ordinary,

and popular meaning. No word or clause in the contract will be

treated as meaningless if a reasonable meaning can be given to

it, and there is a presumption that the parties have not used

words needlessly.’ ” City of Chesapeake, 271 Va. at 578, 628

S.E.2d at 541 (quoting D.C. McClain, Inc. v. Arlington Cnty.,

249 Va. 131, 135-36, 452 S.E.2d 659, 662 (1995)).

Courts interpret insurance policies, like other contracts,

in accordance with the intention of the parties gleaned from

the words they have used in the document. Each phrase and

clause of an insurance contract “ ‘should be considered and

construed together and seemingly conflicting provisions

harmonized when that can be reasonably done, so as to

effectuate the intention of the parties as expressed

therein.’ ” Floyd v. Northern Neck Ins. Co., 245 Va. 153, 158,

427 S.E.2d 193, 196 (1993) (quoting Suggs v. Life Ins. Co. of

Virginia, 207 Va. 7, 11, 147 S.E.2d 707, 710 (1966)).

5
 Furthermore,

“[i]nsurance policies are contracts whose language is
ordinarily selected by insurers rather than by
policy-holders. The courts, accordingly, have been
consistent in construing the language of such
policies, where there is doubt as to their meaning,
in favor of that interpretation which grants
coverage, rather than that which withholds it. Where
two constructions are equally possible, that most
favorable to the insured will be adopted. Language
in a policy purporting to exclude certain events from
coverage will be construed most strongly against the
insurer.”

PBM Nutritionals, LLC v. Lexington Ins. Co., 283 Va. 624, 633-

34, 724 S.E.2d 707, 713 (2012) (quoting Copp v. Nationwide Mut.

Ins. Co., 279 Va. 675, 681, 692 S.E.2d 220, 223 (2010)).

Consequently, insurers are required to draft exclusions

limiting coverage in language that clearly and unambiguously

defines their scope. Id. (citing Lower Chesapeake Assocs. v.

Valley Forge Ins. Co., 260 Va. 77, 88, 532 S.E.2d 325, 331

(2000)). We have therefore long held that the burden is upon

the insurer to prove that an exclusion of coverage applies.

See, e.g., Johnson v. Insurance Co. of N. Am., 232 Va. 340,

345, 350 S.E.2d 616, 619 (1986); White v. State Farm Mut. Ins.

Co., 208 Va. 394, 396, 157 S.E.2d 925, 927 (1967); Life Ins.

Co. v. Brockman, 173 Va. 86, 93, 3 S.E.2d 480, 483 (1939).

However, “[u]nder Virginia law, an insurance policy is not

ambiguous merely because courts of varying jurisdictions differ

with respect to the construction of policy language.

6
Additionally, ‘where the exclusion is not ambiguous, there is

no reason for applying the rules of contra proferentem or

liberal construction for the insured.’ ” PBM Nutritionals, 283

Va. at 634, 724 S.E.2d at 713 (quoting 2 Eric M. Holmes,

Appleman on Insurance 2d § 7.2 (1996 & Supp. 2009)) (internal

citation omitted).

Certified Question Subpart (a)

The homeowners’ policy latent defect exclusion provides

that TravCo does not insure for loss caused by “[l]atent

defect, inherent vice, or any quality in property that causes

it to damage or destroy itself.” Ward argues that the latent

defect exclusion is susceptible to multiple meanings under

principles of noscitur a sociis. 2 Thus, the entire exclusion is

qualified by the modifier “that causes it to damage or destroy

itself.” Ward also claims that the use of “latent defect” and

“inherent vice” in the exclusion causes ambiguity because

“latent defect” is ordinarily defined as undiscoverable by

proper inspection or known tests, while “inherent vice” refers

to a loss from internal decomposition. Additionally, he

2
“The maxim of noscitur a sociis provides that the meaning
of doubtful words in a statute may be determined by reference
to their association with related words and phrases.” See
Cuccinelli v. Rector & Visitors of the Univ. of Virginia, 283
Va. 420, 432, 722 S.E.2d 626, 633 (2012)(quoting Andrews v.
Ring, 266 Va. 311, 319, 585 S.E.2d 780, 784 (2003)).

7
asserts that testing would have revealed the problems with the

Chinese drywall and the defect is thus not latent.

TravCo responds that the latent defect exclusion is valid

and operates to preclude Ward from coverage under the policy.

TravCo asserts that the drywall in Ward’s home contained a

latent defect because the defect was “hidden or concealed” for

two years before Ward discovered a problem. It also argues

that Ward’s proposed construction of the exclusion violates

basic rules of grammar and insurance contract construction and

requires changing the word “or” to “and.” Moreover, TravCo

asserts that Ward attempts to use the doctrine of noscitur a

sociis inappropriately because the maxim cannot be used to

create ambiguity in a contract, only to resolve it. We agree

with TravCo.

Because there is no ambiguity in the phrase “[l]atent

defect, inherent vice, or any quality in property that causes

it to damage or destroy itself,” this Court need not look

beyond the plain meaning of the policy language to determine

whether it excludes damage caused by the Chinese drywall from

coverage. See, e.g., PBM Nutritionals, 283 Va. at 634, 724

S.E.2d at 713 (citation omitted); City of Chesapeake, 271 Va.

at 578, 628 S.E.2d at 541. The exclusion is plain in meaning

and is phrased in the disjunctive, using “or” to separate the

stated excluded losses. The disjunctive may not be omitted or

8
replaced with the conjunctive without doing violence to the

plain language of the policy. See, e.g., Commonwealth v.

Barker, 275 Va. 529, 544, 659 S.E.2d 502, 509 (2008) (“The

plain language . . . is in the disjunctive, not the

conjunctive, and indicates the listed medical conditions are to

be considered separately.”); D.C. McClain, 249 Va. at 135-36,

452 S.E.2d at 662 (“No word or clause in the contract will be

treated as meaningless if a reasonable meaning can be given to

it . . . .”).

This Court does not apply canons of construction to create

ambiguity where there is none, and Ward’s reliance upon the

doctrine of noscitur a sociis is unfounded. See Cuccinelli,

283 Va. at 432, 722 S.E.2d at 633; see also PBM Nutritionals,

283 Va. at 634, 724 S.E.2d at 713 (stating that liberal

construction is inappropriate in light of plain, unambiguous

exclusions). This Court, interpreting a marine policy, defined

“latent defect” as: “A defect not manifest, but hidden or

concealed, and not visible or apparent; a defect hidden from

knowledge as well as from sight; specifically, a defect which

reasonably careful inspection will not reveal; one which could

not have been discovered by inspection.” Glens Falls Ins. Co.

v. Long, 195 Va. 117, 121, 77 S.E.2d 457, 459 (1953).

Although, as Ward argues, the sulfuric content of the drywall

was potentially discoverable through testing after the product

9
was manufactured, the actual defect is the release of sulfuric

gases by the drywall. The future release of gas by the drywall

was not discoverable. Ward lived in his home for approximately

two years before discovering a problem with the drywall; the

defect was “hidden or concealed, and not visible or apparent.”

The damage caused by the drywall was the result of a

latent defect in the drywall. We therefore answer Subpart (a)

of the Certified Question in the affirmative and hold that the

policy unambiguously excludes from coverage damage caused by

the Chinese drywall installed in Ward’s residence.

Certified Question Subpart (b)

The faulty, inadequate or defective materials exclusion

states that TravCo does not insure for loss caused by: “Faulty,

inadequate or defective . . .[m]aterials used in repair,

construction, renovation or remodeling . . . of part or all of

any property whether on or off the ‘residence premises.’ ”

Ward argues that the “faulty” or “defective materials”

exclusion is not applicable to his loss. He asserts that the

policy does not define the terms “faulty” and “defective,” and

under the ordinary definitions of these terms, the exclusion

does not apply because the drywall maintains its form and

performs its function. He posits that such exclusions are

intended to prevent the insurer from insuring the quality of

performance under a contract for alteration to the property.

10
 TravCo counters that the faulty materials exclusion

properly applies because drywall that releases sulfuric gas is

“faulty, inadequate or defective.” It points out that Ward

himself used the term “defective” to describe the drywall in

his home, doing so even after the filing of TravCo’s

declaratory judgment action. TravCo asserts that, as the

district court ruled, the drywall in Ward’s home is

“defective,” and “defective” and the other terms in the

exclusion are not limited to flaws that prevent an object from

serving its intended purpose. We agree with TravCo.

In construing the exclusion, this Court gives the language

its “ ‘usual, ordinary, and popular meaning.’ ” City of

Chesapeake, 271 Va. at 578, 628 S.E.2d at 541 (quoting D.C.

McClain, 249 Va. at 135-36, 452 S.E.2d at 662). The word

“faulty” is defined as “marked by a fault: having a fault,

blemish, or defect: imperfect, unsound.” Webster’s Third New

International Dictionary at 829 (1993); Oxford English

Dictionary 3 at 68619 (“Containing faults, blemishes or defects;

defective, imperfect, unsound.”). “Inadequate” is commonly

understood to mean “not adequate: insufficient, deficient.”

Webster’s Int’l Dict. at 1139; Oxford Eng. Dict. at 93024 (“Not

3
Oxford English Dictionary (2d ed. 1989, rev. online ed.
June 2012), http://www.oed.com/view/Entry/68619 (last visited
August 9, 2012) (hereinafter cited as “Oxford Eng. Dict. at
[Entry No.]”).

11
adequate; not equal to requirement; insufficient.”).

“Defective” is likewise defined as “wanting in something

essential: falling below an accepted standard in regularity and

soundness of form or structure or in adequacy of function:

faulty, deficient, insufficient.” Webster’s Int’l Dict. at

591; Oxford Eng. Dict. at 48766 (“Having a defect or defects;

wanting some essential part of proper quality; faulty,

imperfect, incomplete.”).

The drywall in Ward’s home need meet only one of these

definitions for the exclusion to apply. These definitions are

not dependent solely upon the ability of the instrumentality to

maintain its form or perform its function, i.e., serve as a

wall. See Webster’s Int’l Dict. at 829 (“having a fault,

blemish, or defect: imperfect, unsound”). Assuming for the

sake of argument that these definitions directly encompass form

or function, the drywall at issue in this case could not

reasonably be said to perform its function; its sulfuric gases

rendered Ward’s home uninhabitable. Further, the drywall is

clearly defective. In fact, Ward himself described the drywall

as defective in his circuit court complaint 4 and interrogatory

answers. 5

4
“The Plaintiff brings this action because his family home
. . . was built with defective drywall . . . .”
5
“I do not know the exact number of defective Chinese
drywall samples installed in by [sic] home.”

12
 We hold that the “faulty, inadequate, or defective”

materials exclusion is applicable to damage resulting from the

Chinese drywall. Certified Question Subpart (b) is answered in

the affirmative.

Certified Question Subpart (c)

The policy exclusion states that TravCo does not insure

for loss caused by “[s]mog, rust or other corrosion, mold,

fungi, wet or dry rot.” Ward maintains that the “rust or other

corrosion” exclusion does not apply in this instance because

those terms are not defined in the policy and the damage in his

home was not caused by corrosion, but was the corrosion itself.

Ward argues that this Court should construe the corrosion

exclusion using the principle noscitur a sociis and accordingly

find that the policy conflates corrosion with rust in a context

that suggests the exclusion refers to gradual elemental wear.

Ward asserts that a reasonable insured would believe the

corrosion exclusion was inapplicable because Ward’s loss was

not caused by corrosion and “rust” is ambiguous, and in this

context connotes damage gradually resulting from moisture.

TravCo argues that the corrosion exclusion bars coverage

for the damaged metals in Ward’s home in that there is no

dispute that such damage was caused by corrosion. TravCo

asserts that Ward’s argument that the damage was not caused by

corrosion because the damage was the corrosion itself is

13
unpersuasive in that the exclusion plainly refers to the

process of corrosion, as the district court correctly ruled.

Otherwise, the corrosion exclusion would be largely irrelevant,

as an external catalyst is always the cause of corrosion.

TravCo claims that the plain language of this exclusion does

not make a distinction between “naturally occurring” corrosion

and other corrosion, and Ward’s attempt to limit the definition

of corrosion to a gradual natural process under noscitur a

sociis is ineffective. Moreover, it notes that the corrosion

of metals in the Ward home was in fact a gradual process,

occurring over two years.

To construe this exclusion, this Court applies the plain

meaning of the terms “rust or other corrosion.” See, e.g.,

City of Chesapeake, 271 Va. at 578, 628 S.E.2d at 541 (citing

D.C. McClain, 249 Va. at 135-36, 452 S.E.2d at 662). Because

the exclusion is readily understood in accordance with the

plain meaning of its language, this Court need not employ

extraordinary canons of construction. See, e.g., PBM

Nutritionals, 283 Va. at 634, 724 S.E.2d at 713 (quoting 2

Appleman on Insurance 2d § 7.2).

Rust is defined as “the reddish porous brittle coating

that is formed on iron esp[ecially] when chemically attacked by

moist air and that consists essentially of hydrated ferric

oxide but usu[ally] contains some ferrous oxide and sometimes

14
iron carbonates and iron sulfates — compare corrosion.”

Webster’s Int’l Dict. at 1991; Oxford Eng. Dict. at 169112 (“A

coating formed on metal by oxidation or corrosion, and senses

relating to corrosion or deterioration.”). Corrosion is

defined as

the action, process, or effect of corroding: as . . .
the action or process of corrosive chemical change
not necessarily accompanied by loss of form or
compactness; typically: a gradual wearing away or
alteration by a chemical or electrochemical
essentially oxidizing process (as in the atmospheric
rusting of iron) . . . .

Webster’s Int’l Dict. at 512; Oxford Eng. Dict. at 42010 (“The

action or process of corroding; the fact or condition of being

corroded.”).

Reading these definitions in conjunction confirms the

clarity of the corrosion exclusion. These definitions and the

logical, common understanding of the term “corrosion” do not

draw a distinction between “naturally occurring” and other

corrosion. There is similarly no basis for reading a temporal

element into the instant corrosion exclusion; 6 the plain

language of the policy and commonly understood definition of

corrosion do not warrant such an interpretation.

Ward’s expert, Dr. Hejzlar, concluded in his affidavit:

“The corrosion of metal in the Ward . . . residence[] results

6
But see Webster’s Int’l Dict. at 512 (“a gradual wearing
away”).

15
from exposure to reduced sulfur gases being emitted from the

Chinese drywall and interacting with the metal.” This

statement undoubtedly reflects a process of corrosion as

reflected in the definitions recited above. Ward’s argument

that the damage “was not caused by corrosion” because the

“damage was the corrosion itself” is without merit. Such a

construction would render this and similar corrosion exclusions

meaningless, as the district court noted.

The term “loss . . . [c]aused by . . . rust or other

corrosion,” is unambiguous and when interpreted according to

its plain meaning, encompasses the corrosion caused by the off-

gassing of sulfur from the Chinese drywall in Ward’s home. Any

such damage is excluded from coverage. This Court consequently

answers Certified Question Subpart (c) in the affirmative.

Certified Question Subpart (d)

The pollution exclusion at issue in this case provides

that TravCo does not insure for loss caused by:

Discharge, dispersal, seepage, migration, release or
escape of pollutants unless the discharge, dispersal,
seepage, migration, release or escape is itself
caused by peril insured against under Coverage C.

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

16
 Ward argues that the policy’s pollution exclusion is

“ambiguous, overbroad, unreasonable,” and inapplicable to his

loss. He claims that the process by which elemental sulfur

escaped the drywall, off-gassing, is not a “discharge” of

“pollutants” as contemplated by the exclusion or as a

reasonable person would understand.

Ward asserts that the doctrines of “reasonableness” and

“overbreadth” apply to allow coverage in the instant case. The

overbreadth in this case results from the broad category of

substances that could be termed “irritants” or “contaminants,”

and reasonableness is an issue because an ordinary policyholder

would understand the pollution exclusion as limited to ordinary

irritants or contaminants, not something such as the sulfur

off-gassing that occurred with the drywall.

TravCo argues 7 that the pollution exclusion properly

applies because the sulfuric gas emanating from the drywall was

an “irritant or contaminant” under the plain language of the

policy. It asserts that the sulfur gas in Ward’s house was a

contaminant because it was not “supposed to be” in the home and

it caused harm. The sulfur gas is likewise an irritant because

it caused Ward and his family to suffer nosebleeds and other

7
TravCo additionally argues that Ward waived a number of
his arguments on insurance policy interpretation pursuant to
Rule 5:25. This Court has never applied the rule in a
certified question case, however, and we decline to do so now.

17
problems. The sulfuric gases moved from the drywall to the air

in the home by way of “[d]ischarge, dispersal, seepage,

migration, release or escape.” TravCo claims that these terms

are plain in meaning and sufficient to encompass the emission

of gas from the drywall.

The principles of contract and insurance coverage

exclusion interpretation recited previously in this opinion are

applicable to this final portion of the certified question.

However, it is additionally necessary to address Ward’s

assertion that doctrines of “reasonableness” and “overbreadth”

apply to invalidate the instant pollution exclusion.

This Court has noted various limitations on policy

exclusions, but any limitation pertaining to reasonableness

merely requires exclusions to be stated in “language that is

reasonable, clear, and unambiguous . . . .” E.g., Virginia

Farm Bureau Mut. Ins. Co. v. Williams, 278 Va. 75, 81, 677

S.E.2d 299, 302 (2009) (holding that policy did not clearly

prevent stacking of coverage); see also PBM Nutritionals, 283

Va. at 634, 724 S.E.2d at 713. This is the extent of any so-

called exclusion limits imposed by “reasonableness,” and the

related concept of overbreadth.

In Granite State Ins. Co. v. Bottoms, 243 Va. 228, 235,

415 S.E.2d 131, 135 (1992), for instance, our Court held a

policy exclusion unenforceable against an elder care home on

18
the basis of overbreadth and ambiguity. The exclusion was

phrased: “[T]he insurance does not apply to bodily injury . . .

due to . . . the rendering of or failure to render . . . any

service or treatment conducive to health . . . .” Id. at 232,

415 S.E.2d at 133. This Court held that the exclusion was

overbroad and ruled in favor of the insured because “one could

reasonably argue that almost any condition or function of an

adult home could be classified as ‘conducive to health’ of the

residents and, hence, any injuries negligently caused there are

excluded from coverage.” Id. at 235, 415 S.E.2d at 135.

Exclusions are to be construed according to their plain

language. See PBM Nutritionals, 283 Va. at 635-36, 724 S.E.2d

at 714. Although the release of sulfuric gases from Chinese

drywall is not traditional environmental pollution, this Court

does not construe pollution exclusions so narrowly. We

recently held in PBM Nutritionals that pollution endorsements

“broad, but not unlimited” in scope are enforced according to

their plain language. 283 Va. at 636, 724 S.E.2d at 714.

Bottoms is inapposite in the instant matter, because the

pollution exclusion could not reasonably be argued to

invalidate coverage for “almost any condition or function” in

the Ward home. 243 Va. at 235, 415 S.E.2d at 135. The

pollution exclusion in the TravCo policy is not overbroad or

19
unreasonable, and should be construed according to its plain

language.

Thus, we must determine whether (1) the sulfuric gases are

a “solid, liquid, gaseous or thermal irritant or contaminant,

including smoke, vapor, soot, fumes, acids, alkalis, chemicals

and waste”; and (2) the gases were present in Ward’s home as

the result of “[d]ischarge, dispersal, seepage, migration,

release or escape.”

The plain meaning of “irritant” is “tending to produce

irritation or inflammation.” Webster’s Int’l Dict. at 1197;

Oxford Eng. Dict. at 99857 (“Causing irritation, physical or

(rarely) mental; irritating.”). “Contaminant” is also defined

as “something that contaminates.” Webster’s Int’l Dict. at

491; Oxford Eng. Dict. at 40053 (“That which contaminates.”).

The importance of these definitions is not significant,

however, as the policy itself provides illustrations of

substances deemed to be contaminants: “smoke, vapor, soot,

fumes, acids, alkalis, chemicals and waste.”

It is beyond dispute that the sulfuric substance emanating

from the drywall is gaseous. It is described as such in Dr.

Hejzlar’s affidavit and Ward’s answer to the federal

declaratory judgment complaint, as well as in his state court

complaint and discovery responses. As for the nature of the

sulfuric gases, Ward asserted the presence of “odorous fumes in

20
the residence,” described the gas as “toxic,” and alleged that

it caused “skin rashes,” “lesions,” “sinus congestion,” and

“nosebleeds.” These properties plainly place the sulfuric

gases from the residence within the definition of “irritant or

contaminant” contemplated by the policy and commonly

understood.

Furthermore, reduced sulfur gas is a pollutant per the

relevant state and federal regulations. See 40 C.F.R.

§ 60.101(l) (referencing “[r]educed sulfur compounds”); 9

V.A.C. § 5-20-205(2) (same). This Court has previously

examined such regulations in determining whether a substance

falls within a policy definition of “contaminant.” See City of

Chesapeake, 271 Va. at 578, 628 S.E.2d at 541.

The issue of whether the sulfuric gases contaminated the

air in the Ward home due to “[d]ischarge, dispersal, seepage,

migration, release or escape” is likewise aided by the report

and affidavit of Dr. Hejzlar, which references the “reduced

sulfur gases being emitted from the Chinese drywall,”

“emissions from the Chinese drywall,” and states that “the Ward

home has Chinese drywall which has off-gassed.” Indeed, it is

difficult to envision how the sulfuric gases reached the air of

the Ward home if not by the means encompassed by the ordinary

meaning of “[d]ischarge, dispersal, seepage, migration, release

or escape.”

21
 The sulfuric gases at issue in this case were a pollutant

within the purview of the exclusion, and we hold that the

pollution exclusion is applicable and unambiguously excludes

from coverage any damage resulting from the emission of gas

from the drywall. We therefore answer Certified Question

Subpart (d) in the affirmative.

Conclusion

Accordingly, for the reasons stated, we will answer all

subparts of the certified question in the affirmative.

Certified question answered in the affirmative.

22