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Hartford Accident & Indem. Co. v. Doe Run Resources Corp.

ELR Citation: 40 ELR 20137
Nos. No. 4:08-CV-1687, (E.D. Mo., 04/26/2010)

A district court denied an insurer's partial motion for summary judgment on claims that it must indemnify a lead smelter in an underlying lawsuit concerning bodily injury and property damage arising out of the smelter's operations near Herculaneum, Missouri. The insurer argued that coverage is barred by the policies’ pollution exclusion. At issue is whether lead is a pollutant under the terms of the policies. But the court could not state as a matter of law that lead, in all of its forms as relevant here, is a pollutant within the meaning of the pollution exclusion. The company has established the existence of material facts concerning whether the underlying claims arise out of, in addition to smelter emissions, its other lead-related activities and that it may have reasonable expectations for coverage with respect to some of those activities. The company has also established that lead is a useful commercial product for which there is significant demand. Thus, it would be premature and overly simplistic to hold as a matter of law, on the existing record, that “lead is a pollutant” under the pollution exclusion.