On July 5, 1990, the Johnson family of Olathe, Kansas was dispossessed of their home and all their personal possessions. Harry, Debbie, and their girls were left with only the clothes on their backs and their vehicles. Contractors hired by the Johnsons' homeowner's insurance company's claims adjuster had scraped the water damaged ceilings in their home, spreading a thick fog of dust throughout the residence. A wallpaper contractor suggested to the Johnsons that the dust from textured ceilings installed up through the end of the 1970's might contain asbestos, so the Johnsons had it tested. To their surprise the dust contained asbestos, and it was on and in everything. The Johnsons were properly advised by the EPA and the Kansas Department of Health and Environment to leave the premises until the home could be decontaminated and the personal property properly disposed of -- a prohibitively expensive venture.
At that point the Johnsons' homeowner's insurance company refused to pay for any additional work or to pay for the family to live off premises. The contractors, who had scraped the ceilings, denied responsibility, and their insurance company denied coverage based on the so-called "pollution exclusion" clause in the contractor's commercial general liability insurance policy.
The Johnsons first tried to resolve their situation through the offices of the Kansas Commissioner of Insurance and Attorney General without success, and finally tried unsuccessfully to interest private attorneys in the case. With some early reluctance, due to the technical nature of the issues and the unsettled law on the subject, Vic Bergman of the firm agreed to take the case, along with able assistant John Parisi. An action was filed in Johnson County District Court, with a second lawsuit against the contractor's insurance company fought in federal court. The case became increasingly complex, with many issues such as interpretation of the homeowner's and contractor's insurance policies, vicarious liability, breach of implied warranty, negligence per se, strict liability, private nuisance, and negligent infliction of emotional distress.
Because the Johnsons' situation was critical, the court cooperated to move the case on an extremely fast track for its complexity. A $700,000 settlement was reached only days before the jury trial was scheduled. The Johnsons still have to deal with all of the problems caused by their traumatic dispossession from their home, but at least have the financial means to deal with the contamination. The Johnsons will make sure that their next home is not one of the 60% of homes built in Johnson County in the 1960's and 1970's which have asbestos in the sprayed-on ceilings.
