A Travelers Cos. Inc. unit is not obligated to provide coverage in an incident in which carbon monoxide that flowed from a recreational fishing boat’s engine killed two men and injured a third, because of its policy’s pollution exclusion, says a federal appeals court, in affirming a lower court ruling.
Christopher A. Klick and two friends, Lonnie Norbert and Jeffrey Wheeler, were aboard Mr. Norberg’s 25-foot fishing boat on Lake of the Woods in northern Minnesota in a boat that had been sold to Mr. Norberg a few weeks earlier by Baudette, Minnesota-based Rainy River Marine Inc. and a financial institution, according to Monday’s ruling by the 8th U.S. Circuit Court of Appeals in St. Louis in Travelers Property Casualty Co. of America v. Christopher A. Klick; Rainy River Marina Inc.
Mr. Norberg was at the boat’s helm, which was near the front of the boat in the wheelhouse, as the boat returned to shore, according to the ruling. The boat’s engine was housed in an enclosed compartment beneath the wheelhouse.
Mr. Norbert and Mr. Klick noticed the engine was not operating properly. Mr. Klick took the helm and Mr. Norberg opened the hatch of the engine compartment to check the engine.
Unbeknownst to either, an exhaust pipe had broken off at the spot where it connected with the engine, and as a result, the engine had been expelling carbon monoxide gas into the engine compartment rather than through the exhaust pipe and out behind the boat.
As result, when Mr. Norberg opened the engine compartment hatch from within the wheelhouse, carbon monoxide flowed up into the wheelhouse. Mr. Klick quickly lost consciousness and fell into the engine compartment. He awoke there several hours later severely burned and brain damaged from the carbon monoxide, although he survived; the gas killed Mr. Norberg and Mr. Wheeler.
Mr. Klick sued Rainy River and the financial institution, Grafton, North Dakota-based Choice Financial Group, in state court seeking damges for his injuries from the accident.
Rainy River held a marine general lability insurance policy from Hartford, Connecticut-based Travelers unit Travelers Property Casualty Co. of America at the time of the accident that required the insurer to pay damages resulting from bodily injury.
The policy included a pollution exclusion for injuries “arising out of” the “seepage, discharge, dispersal, disposal or dumping, release, migration, emission, spillage, escape or leakage” of pollutants into the “atmosphere.”
Travelers then sued Mr. Klick, Rainy River and Choice Financial in U.S. District Court in Minneapolis, seeking a declaration the policy did not cover Mr. Klick’s injuries because of the pollution exclusion.
The District Court granted Travelers summary judgment, which a three-judge appeals court panel unanimously upheld.
Mr. Klick argued the exclusion did not apply because his injuries did not arise out of the release, dispersal or migration of carbon monoxide into the “atmosphere,” in that the engine compartment did not contain “atmosphere,” said the ruling.
“Assuming for the sake of analysis that Klick is correct that the engine compartment did not contain ‘atmosphere,’ Klick’s injuries did not arise only out of the release of carbon monoxide into the engine compartment,” said the ruling.
“The movement of the carbon monoxide from the engine compartment into the wheelhouse was also a ‘release,’ ‘dispersal,’ or ‘migration’ of a pollutant,” the ruling said.
“The pollution exclusion is not limited to liability arising out of an initial ‘release’ of pollutant or a ‘dispersal’ or ‘migration’ of the pollutant from an original source,” the ruling said, in holding the pollution exclusion applies and Travelers is entitled to a declaratory judgment in its favor.
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Lake of the Woods boating survivor tells of engine fumes killing two buddies
Christopher Klick said he was unconscious for hours as big waves tossed the boat on Lake of the Woods.
By Joy Powell Star Tribune
September 4, 2013 — 12:57pm
Christopher Klick awoke in pitch dark, disoriented and battered as the stalled boat bucked big waves on Lake of the Woods. He was pretty sure his two pals were dead on the deck nearby.
The boat’s engine-exhaust fumes must have somehow blown back into the partly enclosed deck as they were fishing Sunday evening, he said from a Grand Forks, N.D., hospital bed Tuesday.
“I woke up in the boat in the middle of the water with my two buddies dead, and the boat almost full of water,” said Klick, 43, of Crystal. “And I was able to drive it and navigate it back to shore.”
Autopsies by the Ramsey County medical examiner’s office reported that Klick’s friends — Lonnie Ray Norberg, 44, and Jeff Wheeler, 35, both of Champlin — died of accidental carbon monoxide poisoning.
“I don’t know how I made it,” Klick said. “I was out for four hours, and burned and bruised and battered from head to toe. I got a concussion. I can’t walk.”
They had been floating in Norberg’s 30-foot boat in the huge lake on the Canadian border. “The last time I remember it being was six thirty,” Klick said. “I went from being wide-awake to not remembering a thing, and waking up four or five hours later in the pitch black, freezing cold, drenched wet, bruised, burned and my knee swollen.”
Tall waves had violently rocked the boat, throwing him around the deck and into the engine, he said. Barely able to stand on torn knee ligaments, Klick managed to start the boat.
“I saw lights on shore, so I just drove to that area, where I saw the lights,” he said, adding that it took 10 or 15 long minutes.
He tried to call 911 with his cellphone. Sheriff’s dispatcher Cherie Anderson confirmed taking the call at 11:18 p.m. but said she could hear nothing on the line, except for a “glug, glug, glug” sound that she said sounded like water.
She called the phone company to try to learn who owned the cellphone.
Klick continued toward land, chilled to the bone.
“I flipped the spotlight,” he said. “Shining the spotlight on and off at this area where I saw there were people, and was on the horn of the boat, and got their attention before I got to shore, and was hollering out to them to call 911.”
Klick said he “ran the boat up onto the shore.”
Rescue workers arrived at 11:30 p.m. and found his two friends dead.
Tuesday night, Klick anguished over what went wrong. The boat has an inboard motor, he said. They were on the main part of the boat, on a fishing deck. The boat has a hard top, and where the helm is located is semi-enclosed but a person can walk all the way through.
“We were done fishing, and we were heading for shore. The wind was at our back, and there must have been just some kind of an exhaust leak or an exhaust malfunction, and there was enough exhaust in that engine area that it wasn’t escaping and it was able to blow up into the area that we were in,” Klick said.
“I don’t know, don’t have any answers,” he said Tuesday. “The wind was at 10 miles an hour, so there was wind. We were in an open area. It’s not like we were in a sealed area with a heater … so it’s just unbelievable. Unexplainable.”
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Sheriff: Busted, jury-rigged exhaust system led to Lake of the Woods boating deaths
"A perfect storm" of dangerous factors turned lethal on Lake of the Woods Sunday night, officials say.
By Joy Powell Star Tribune
September 4, 2013 — 9:50pm
A deadly accident on Lake of the Woods on Sunday shows that even in an open boat, carbon monoxide can kill, authorities said Wednesday.
“A perfect storm” of dangers, including a busted exhaust pipe that was jury-rigged, combined to kill two men and nearly kill a third, said a sheriff’s dispatcher and an expert with the Minnesota Department of Natural Resources.
Found dead in a 25-foot cruiser on Sunday night were owner Lonnie Ray Norberg, 44, and Jeffrey E. Wheeler, 35, both of Champlin.
Their fishing buddy, Christopher Klick, 43, of Crystal, said that sometime after 6:30 p.m., he fell unconscious for at least four hours before awakening in pitch black with big waves tossing the boat on the huge lake, which straddles the border between Minnesota and Canada.
Klick, badly battered and burned from the engine, managed to get the boat started and drive for 10-15 minutes toward lights on shore before running aground, he said in an interview Tuesday night from a hospital bed in Grand Forks.
The 1990 Baja cruiser had an inboard, 260-horsepower motor, dispatchers said. After the incident, the boat was towed from the Birch Beach area north of Williams to the Lake of the Woods County Sheriff’s Office. Deputies found part of the exhaust system broken.
An aluminum pop can was found shoved in one of the boat’s two exhaust pipes, apparently to plug water from washing back into the engine compartment, the sheriff’s office said.
“Somewhere between where it’s connected to the engine and where it goes out of the boat, it was broken,” a dispatcher said. “And they just left the one side dumping into the bilge area, but they put a pop can in the other side so the water wouldn’t come back in the boat.”
That forced exhaust fumes back into the engine compartment, officials said.
On the deck, an engine hatch known as a “doghouse” had been lifted off and not put back on, the sheriff’s office said. Fumes vented up through that opening.
The wind, estimated at 10 to 15 miles per hour by Klick and law enforcement officials, was at the men’s backs and apparently kept blowing the fumes at them as they sat on the main deck.
In front of the men, a hard top and windshield around the helm may have enabled fumes to collect, authorities said.
The water was rough Sunday night, Klick said, with waves 4 to 5 feet high.
Carbon-monoxide symptoms resemble seasickness, said Kara Owens, DNR boat and water safety specialist.
“Any passenger on really any boat with a motor or generator can be a victim of carbon monoxide poisoning, and unfortunately, this is just a tragic reminder that these dangers can happen when you least know it,” Owens said.
“Carbon monoxide is an odorless, tasteless gas, and it can be toxic in very small quantities.”
