Randy J. Maniloff is an attorney at White and Williams, LLP in Philadelphia . He concentrates his practice in the representation of insurers in coverage disputes over primary and excess policy obligations for various types of claims, including construction defect, mold, general liability (products/premises), environmental property damage, asbestos/silica and other toxic torts, first-party property, homeowners, directors & officers liability, a variety of professional liability exposures, including medical malpractice, media liability, community associations, public official's liability, school board liability, police liability, computer technology liability, managed care and additional insured/contractual indemnity issues. The views expressed herein are solely those of the author and are not necessarily those of his firm or its clients.

Topics covered:

Introduction

What does the exclusion mean?

Making the effort to define traditional environmental pollution

Knowing traditional environmental pollution when you see it

Taking a closer look at the "CERCLA Rationale"

California approach: knowing it when you see it through sunglasses

Conclusion

Introduction

Dizzying. That's the term used not long ago by the Northern District of Iowa to describe the array of results that have been reached by courts throughout the country interpreting the absolute pollution exclusion.[1] There the court had been asked to determine whether the exclusion applied to preclude coverage for a claim involving asphyxiation from carbon monoxide fumes. The fumes were produced by a propane power washer that had been placed in a room without an outside air supply. After discussing the history of the pollution exclusion and noting the abundance of cases nationally on both sides of the issue, the court ultimately determined that the wisest course of action was to certify the question to the Iowa Supreme Court—the judicial equivalent of Go ask your mother. See Bituminous Casualty Corporation v. Sand Livestock Systems, Inc., et al., 2005 U.S. Dist. LEXIS 12276 (N.D. Iowa).

The fact that there is a plethora of diverse case law addressing the absolute pollution exclusion—with no end in sight—is hardly news to many coverage professionals.[2] But for those unfamiliar with the issue, a brief primer is in order. (And, incidentally, speaking of primer, the Sixth Circuit has held that the pollution exclusion does not preclude coverage for bodily injury caused by exposure to it. See Meridian Mutual Insurance Co. v. Kellman, 197 F.3d 1178 [6th Cir. 1999]).