A Pollution Exclusion Primer: A Review of General Liability Pollution Exclusions and Their Application to Emerging Environmental Risks

15 May , 2024

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Policyholders routinely look to general liability insurance for all manner of claims that do not fall “neatly” into some other type of coverage, such as fire insurance or D&O insurance. In the wake of CERLA (the “Superfund Act”) and similar state laws in the 1980’s, owners and operators of contaminated land began to tender clean-up claims to their insurers, which often resisted coverage on grounds that their policies excluded coverage for bodily injury or property damage caused by pollution. The issue was hard-fought in the 1980’s and 1990’s and came to a sort of détente with the creation of the so-called “absolute pollution exclusion” and revisions in various policy forms to provide an updated definition of “pollution.” But the emergence of new classes of risk – including the so-called “forever” chemicals commonly known as PFAS and associated contamination, as well as classes of risk that are alleged to be caused by climate change – are causing policyholders to reexamine the scope and reach of pollution exclusions.

This program will offer a primer on pollution exclusions in general liability insurance policies. It will review historical and current wording, offer an overview of the coverage decisions as they stood at the end of the 1990’s, and examine coverage for emerging claims.

Learning Objectives:

Understand the typical wordings of pollution exclusions in general liability insurance policies. Review major cases interpreting and applying those exclusions.

Examine the “absolute” pollution exclusion

Identify emerging claim types that implicate the exclusions, such as PFAS contamination and losses alleged to be affected by climate change.

Consider how courts may construe coverage for those claims.

 

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