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Feinberg v. Commercial Union Ins. Co.

ELR Citation: 32 ELR 20700
Nos. No. 99-P-1889, 766 N.E.2d 888/(Mass. App. Ct., 04/26/2002)

The court holds that pollution exclusion clauses preclude insurers' obligation to defend and indemnify a rubber products manufacturing company in an environmental liability suit brought against it by third parties after contamination was discovered on the company's property. The court first holds that the pollution exclusions in this case are notably unambiguous, and the environmental contamination claim brought against the company is within the scope of the pollution exclusion. The substances that leached into the ground and groundwater at the property are "pollutants" under the policies. The company argued that the rubber feedstock, tires, and other rubber materials used and stored on the property were useful products and, therefore, should not be considered pollutants under the policy exclusion. However, it is irrelevant that the stockpiled rubber materials might be useful products because the company's liability arises out of the release of specific chemicals into the soil and groundwater, not the storage of rubber feedstock. Further, a reasonable policyholder would likely determine that chemical substances leaching into the ground and groundwater from burning rubber, seemingly a classic case of pollution, constitute pollution within the meaning of the policy.

The full text of this decision is available from ELR (4 pp., ELR Order No. L-521).

Counsel for Plaintiff
Stephanie A. Kiefer
Rubin & Rudman
50 Rowes Wharf, Boston MA 02110
(617) 330-7000

Counsel for Defendant
Kevin J. O'Connor
Hermes, Netburn, O'Connor & Spearing
111 Devonshire St., Boston MA 02109
(617) 728-0050