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Responding to the flurry of environmental coverage litigation over the application of the “sudden and accidental” pollution exclusion, the insurance industry during the mid-1980s largely adopted new standard pollution exclusion language for commercial general liability (CGL) policies. Since the mid-1980s, the standard form CGL has included the so-called absolute pollution exclusion, which provides that the insurance does not apply to bodily injury or property damage “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants.” A “pollutant” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

The broad language used in the current pollution exclusion has, like its predecessor, spurred heated litigation as to the meaning and application of the exclusion. To date, courts found the exclusion applicable to preclude coverage for what might be termed “classic” pollution claims involving widespread discharge of contaminants giving rise to claims of environmental degradation. Courts have divided roughly equally, however, regarding the applicability of the exclusion to so-called toxic torts or other claims in which chemicals or irritants are involved. The issue continues to be hotly litigated and debated. In late 1997, the Illinois and Massachusetts Supreme Courts refused to bar coverage for claims arising out of carbon monoxide poisoning while in early 1998 the Florida Supreme Court read the exclusion broadly and literally to bar coverage for claims arising out of an ammonia spill in the office and a crop-spraying mishap that caused immediate harm to two bystanders.

Publication Citation

34 Tort & Ins. L.J. 1 (1998).