After Mr. Chupp tendered Ms. Smith's claims to GFB under the provisions of the policy, GFB filed a declaratory judgment action seeking a determination that Ms. Brown's injuries were not covered under the policy and that it had no duty to defend Mr. Chupp against Ms. Smith's claims.

GFB contended, among other things, that Ms. Brown's alleged injuries from lead poisoning were excepted from coverage by the policy's absolute pollution exclusion clause, thus relieving GFB of its duty to defend and indemnify Mr. Chupp in Ms. Smith's suit.

The trial court concluded that lead-based paint unambiguously fell within the policy's definition of “pollutant,” and, as a result, Ms. Brown's alleged injuries were excluded from coverage pursuant to the pollution exclusion.

The appellate court reversed, reasoning that whether lead-based paint should be considered a “pollutant” for the purposes of a pollution exclusion clause such as that found in the CGL policy was one of first impression in Georgia, and noting that a conflict in judicial opinions existed among other jurisdictions with respect to this question. The court of appeals then concluded that GFB had failed to meet its burden to prove that lead-based paint was a “pollutant” as defined by the policy.

The dispute reached the Georgia Supreme Court.

The Georgia Farm Policy

The GFP policy required GFB:

to pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies

and:

to defend the insured against any “suit” seeking those damages.

The policy's

Coverages

section provided:

This insurance applies to “bodily injury” and “property damage” only if: (1) the “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory.”

It defined:

occurrence

as:

an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

It also stated:

This insurance does not apply to:

(f) Pollution

(1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants”: (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.

The policy defined:

pollutant

as:

any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.

The court reversed, holding that the claims for personal injury allegedly resulting from lead-based paint ingestion were excluded from coverage pursuant to the policy's “pollution exclusion” clause.

In its decision, the court explained that the policy contained an absolute pollution exclusion clause that precluded recovery for bodily injury or property damage “resulting from exposure to any pollutant.”

The court added that the contractual language of the CGL policy “unambiguously” governed the factual scenario in this case. It concluded that under the “broad definition” contained in Mr. Chupp's policy, “lead present in paint unambiguously qualifie[d] as a pollutant” and “the plain language” of the policy's pollution exclusion clause excluded Ms. Smith's claims against Mr. Chupp from coverage.

The case is Georgia Farm Bureau Mutual Ins. Co. v. Smith, No. S15G1177 (Ga. March 21, 2016).