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Appeals court affirms ruling in tainted fountain case

By: Eric Heisig//October 8, 2013//

Appeals court affirms ruling in tainted fountain case

By: Eric Heisig//October 8, 2013//

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A Milwaukee-based contractor’s insurance companies are not liable for covering damages incurred by those who got sick after breathing in contaminated water that came from a decorative fountain, according to an appellate court decision released Tuesday.

The decision stems from five lawsuits filed against Aurora Healthcare Inc. in 2011 and 2012 by eight people who claimed they contracted Legionnaire’s disease after being exposed to tainted water in a lobby fountain at Aurora St. Luke’s South Shore Hospital in Cudahy. The disease is a type of pneumonia caused by bacteria that grows in warm water, and a person can contract it if they breathe in contaminated mist or vapor.

Aurora, in turn, filed a claim against contractor Creative Business Interiors Inc., alleging it was liable because it was hired to redo the lobby and design the fountain. Creative Business claimed that insurance policies taken out with The Midwestern Indemnity Co. and Hawkeye-Security Insurance Co. should protect it from liability.

But, in an October 2012 ruling, Milwaukee County Circuit Judge Jane Carroll disagreed, saying the policy does not cover injury or illness caused by people exposed to the tainted water. The appellate court upheld her ruling Tuesday.

The court’s decision came down to the intended definition of the word “consumption” and whether a decorative fountain is covered by a policy that covered damages for those exposed to bacteria.

Creative Business’ attorney, Ross Anderson, argued on appeal that consumption applied to “when it is observed and enjoyed by hospital patrons.” But the insurance companies and the appellate court disagreed, saying the intended definition was “to eat, to drink, to use up, to consume.”

“A reasonable insured reading the policy would understand the word ‘consumption’ to reference a good or product that was intended to be eaten or drank, or otherwise used up,” the opinion, authored by appellate Judge Kitty Brennan, stated. “It makes little sense that a reference to consumption, when discussing exposure to fungi and bacteria, would be referring to the observation and enjoyment of art.”

It was not immediately clear if Creative Business would appeal the decision to the state Supreme Court. Neither Creative Business CFO Mike Strangfeld nor Anderson immediately returned calls Tuesday.

Proceedings in the lawsuits were put on hold to await the appellate court’s decision.

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