A Trial Lawyer's Perspective on the Pollution Exclusion
Editors' Summary: State and federal appellate courts are almost evenly split on the meaning of the pollution exclusion clause in standard comprehensive general liability insurance policies. The authors of this Article argue that — even in jurisdictions where appellate decisions favor insurers — policyholders can win environmental insurance coverage cases at trial. The Article begins by reviewing general legal principles of insurance coverage, the evolution of policy language applicable to environmental coverage claims, and the recent case law. Next, the Article discusses trial strategy, offering practical advice about establishing a case theme, using expert witnesses, jury selection, jury instructions, and special verdict forms. The authors conclude that creative trial lawyers can persuade juries to find coverage despite adverse legal precedent.