Responsible for Pollution? Even With the Armor of the Absolute Pollution Exclusion, Insurers May Not Be Bulletproof
Editors' Summary: In an attempt to reduce their liability for environmental claims, insurers regularly include absolute pollution exclusion clauses in their comprehensive general liability policies. Courts, however, have entertained a variety of challenges to absolute pollution exclusions. This Article discusses seven arguments that insureds have made to obtain coverage despite the existence of an absolute pollution exclusion in their policy. These arguments include: (1) the insured was not an active, industrial, or knowing polluter; (2) the substance at issue is not a pollutant; (3) no invasion of the environment has occurred; (4) no discharge or release has occurred; (5) the alleged contaminant is not waste; (6) the underlying claim is a product liability claim for which the policy provides coverage; and (7) the underlying claim is covered by the policy's personal injury provisions. The applicability and success of each of these arguments depends largely on the specific facts of each case. Although most courts find that the absolute pollution exclusion precludes coverage, this Article concludes that the absolute pollution exclusion is not always absolute.