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Continental Casualty Co. v. Jacksonville, City of

Citation: 40 ELR 20188
No. No. 09-14559, (11th Cir., 06/24/2010)

The Eleventh Circuit upheld a lower court decision that an insurer had no duty to defend or indemnify a school board in a toxic tort suit. In the underlying case, the school board was being sued for building a school on land once used as a landfill and allowing housing developments to be built near it without warning families. The board sought indemnity and a defense from its insurer, but the policy's pollution exclusion clause barred coverage. Even though the board was not itself a polluter, the exclusion applies: the provision is not about who caused the pollution, but is about pollution and its effects underlying a claim. Here, the alleged injury was caused by the presence of pollutants that had been put in the land. Even though the suit alleged harm from the board's failure to warn of the danger, had there been no discharge of pollutants into the ground, no warning would have been needed.