Judge says insurers must cover lead exposure claims against Summit Elementary

June 12--A federal judge has ruled that two insurance companies are required to cover any potential financial losses tied to a lawsuit against the Butler Area School District surrounding lead-tainted drinking water that came from a well at Summit Elementary School.

U.S. District Judge Arthur J. Schwab ruled that The Netherlands Insurance Co. and Peerless Insurance Co. can't shirk their coverage duties. Lawyers for both companies contended that they were not obligated to pay or defend the district or former Superintendent Dale Lumley, also a defendant.

"We are pleased with the decision and believe the court properly applied the law," Butler Area School District solicitor Tom King said Monday.

A federal lawsuit filed in February against the school district contends Lumley and administrators concealed information for months that Summit Elementary's water supply from a well on school property contained dangerous amounts of lead. An executive summary of an internal investigation noted a possible cover-up or negligence in addressing and communicating the lead problem.

Three school district administrators, including Lumley, resigned during the scandal, and a criminal investigation is ongoing.

After the initial lawsuit, attorneys for the insurance carriers filed a separate action in federal court, arguing both companies are exempt from claims because their policies with the district did not cover lead exposure.

Schwab disagreed.

"The pollution exclusion at issue here is ambiguous." he wrote.

Summit closed at the end of January because of the lead problem, and its approximately 250 students began attending the formerly shuttered Broad Street Elementary in Butler.

Jennifer Tait sued the district and Lumley after her daughter, Jillian, who attended Summit, tested positive for lead exposure. The case filed by attorneys Brendan Lupetin and Douglas Olcott seeks class-action status, which would let families of other students exposed to lead in the water join the lawsuit. The suit seeks medical monitoring and damages for anyone exposed to lead and copper in the water at Summit.

Lupetin said Monday he was pleased with Schwab's ruling regarding the insurance companies.

"Judge Schwab's decision on the ancillary insurance coverage dispute was the right decision and will hopefully pave the way for fair compensation for the affected students," he said.

Philadelphia attorney John C. Sullivan, who represents both insurance companies, declined to comment.

Lead is a neurotoxin that can impair child brain development and cause kidney damage, mood disorders, weight loss and other ailments.

In April, the Butler Area School District finalized plans to bring public water to Summit Elementary with hopes of reopening the school by Sept. 1.

Ben Schmitt is a Tribune-Review staff writer. Reach him at 412-320-7991, bschmitt@tribweb.com or via Twitter at @Bencschmitt.

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