Responsible for Pollution? Even With the Armor of the Absolute Pollution Exclusion, Insurers May Not Be Bulletproof

August 1998
Citation:
28
ELR 10405
Issue
8
Author
Amy R. Wolverton

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.

Amy R. Wolverton, an associate of Alston & Bird, LLP, in Atlanta, Georgia, concentrates on environmental and regulatory matters as a member of the firm's environmental practice group. She received her J.D. summa cum laude from Georgia State University College of Law in 1995, and a B.A. with distinction from Indiana University in 1992. The author would like to thank Adam Beigel for his contribution to certain sections of this Article. An earlier version of this Article, entitled Circumventing the Absolute Pollution Exclusion, appeared in 20 INS. LITIG. REP. 244 (1998).

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