An insurance law expert says insurers may be wrong when they use policy exclusions to deny  coverage of Chinese drywall damage claims.   According to a report from P&C National Underwriter, Charles Miller, of the Insurance Law Center in Berkeley, Calif., cited language contained within Fire, Casualty & Surety (FC&S) bulletins – a resource for insurers for interpretation of policies – to raise questions about whether exclusions apply to Chinese drywall damage.

According to P&C National Underwriter, Miller called on  regulators to protect consumers by conducting multistate market conduct exams to ensure proper investigations into Chinese drywall are being conducted.

Miller cited three types of exclusions insurers are currently using to deny Chinese drywall claims: pollution exclusions, construction defect exclusions, and  latent defect and inherent vice exclusions

According to Miller, FC&S notes that courts have found the pollution exclusion in homeowners policies only applies to “traditional environmental damage.”  He asserted that the release of gases from Chinese drywall into homes does not constitute traditional environmental damage.

In regards to construction defect exclusions, Miller cited language from the June 2009 FC&S bulletin, which states, “Any ensuing loss as a result of the faulty drywall would be covered, for example, if the drywall caused corrosion damage to wires or pipes.”

Latent defect and inherent vice exclusions involves “a loss due to any quality in the property that causes the property to damage or destroy itself that results from something in the property itself.”  According to Miller, the Chinese drywall is not destroying itself, but rather causing ensuing damage to its surroundings, which should be covered.

Miller remarks were made during a hearing on drywall issues conducted by the National Association of Insurance Commissioners Catastrophe Insurance (NAIC) Working Group at the NAIC’s Winter National Meeting.