Vacationers remains to be combating the smoke and soot battle I final famous in Vacationers’ $27 Million Soot and Smoke Case Takes a Flip: The Panel Opinion Has Been Vacated. Nevertheless, the newest appellate opinion exhibits the insurer has not modified the regulation as a lot as it’d like readers to consider.
A federal jury hit Vacationers with a $27 million bad-faith verdict in Maxus Metropolitan, LLC v. Vacationers Property Casualty Firm of America, discovering that soot and smoke contamination brought on by a fireplace constituted “direct bodily loss or harm.” I famous that verdict in Vacationers Responsible of Dangerous Religion and Loses $27 Million Verdict Over Smoke, Soot, and Ash Dispute.
Vacationers appealed, and in August 2025, the Eighth Circuit Court docket of Appeals upheld that verdict in a strongly worded opinion that confirmed what most of us in property insurance coverage already knew: smoke and soot are coated causes of loss. I famous that opinion in Smoke and Soot Are Lined Causes of Loss, and Smoke, Soot, and Ash Testing Is Essential.
Vacationers requested for a rehearing, and on November 17, the identical three-judge panel issued a revised opinion. 1 The August opinion is not legitimate regulation. Whereas some headlines recommend this newer model limits policyholder rights, a cautious studying exhibits the alternative. The panel reaffirmed that soot contamination is a type of bodily harm below Missouri regulation.
What the Court docket Really Mentioned About Soot
The November opinion once more emphasizes that “direct bodily loss or harm” contains bodily contamination, not simply seen or structural destruction. The court docket rejected Vacationers’ argument that microscopic soot doesn’t depend except it may be seen or compromises the constructing’s construction:
“This goes past Missouri regulation. Soot harm—like asbestos harm and in contrast to a virus—is each ‘instantly materials, perceptible, or tangible’ and ‘everlasting absent some intervention.’”
That language couldn’t be clearer. The court docket aligned soot with asbestos, that are types of contamination that bodily alter property and require remediation. It additionally favorably cited the jury instruction defining coated loss as “bodily alteration, bodily contamination, or bodily destruction.”
In plain phrases, the court docket mentioned: Soot is bodily. Soot is tangible. Soot stays till you clear it up. Vacationers’ effort to recast “bodily loss” as solely structural or seen failed.
What Modified—And What Didn’t
The revised opinion polished the reasoning, not the result. It nonetheless affirmed the jury’s verdict on each situation besides a technical adjustment to prejudgment curiosity. The panel stood by its rejection of Vacationers’ defenses and its endorsement of the jury’s discovering that microscopic soot contamination brought on direct bodily loss and harm.
The dissenting decide expanded his earlier objections, arguing that just a few thousand {dollars} of coated harm have been confirmed and that the remaining was overreach. However that view stays a minority opinion. The controlling determination continues to assist the long-standing precept that contamination that soils or infiltrates property is a coated reason for loss.
The place the Case Stands Now
The August opinion was vacated when the panel agreed to rehear the case. The brand new November 17 opinion replaces it. That’s the regulation of the case except and till the total Eighth Circuit steps in.
So, for now, the November opinion stands as a reaffirmation that smoke and soot are coated causes of loss and that “direct bodily loss or harm” contains bodily contamination that’s “everlasting absent some intervention.”
The Larger Image
Earlier than COVID-19 circumstances flooded the courts, insurers routinely paid for soot and smoke cleanup. A lot of the fights needed to do with easy methods to take away the smoke and soot. Solely after the pandemic litigation did insurers start reinterpreting “bodily loss” to dodge smoke and soot claims. Maxus exhibits that courts nonetheless acknowledge the distinction between fleeting viral particles and tangible, lasting contamination like soot, ash, and smoke residue.
Vacationers is fiercely battling one thing it used to pay for with no battle. However for now, the Eighth Circuit’s message stays intact: when your property is coated, infiltrated, or contaminated by soot, that could be a direct bodily loss and your insurer should pay.
I need to give a shout-out to legal professional Kevin Pollack for bringing this new opinion to my consideration.
Thought for the Day
“Fact by no means damages a trigger that’s simply.”
—Mahatma Gandhi
1 Maxus Metropolitan v. Vacationers Prop. Cas. Co. Of America, No. 24-1176 (8th Cir. Nov. 17, 2025).