CALIFORNIA SUPREME COURT LIMITS POLLUTION EXCLUSION IN CGL POLICIES. By Christopher W. Olmsted

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1 CALIFORNIA SUPREME COURT LIMITS POLLUTION EXCLUSION IN CGL POLICIES By Christopher W. Olmsted Every standard comprehensive general liability policy ( CGL ) contains a pollution exclusion clause that excludes insurance coverage for bodily injury or property damage resulting from pollution. Exactly what is pollution and under what circumstances does the pollution exclusion apply? The California Supreme Court recently addressed this question in MacKinnon v. Truck Insurance Exchange (2003) 31 Cal.4 th 635. Summary of Facts In MacKinnon, an apartment owner hired a pest control company to spray insecticide at the apartment to abate a yellow jacket infestation. During one of the treatments, a tenant of the apartment died, allegedly from exposure to the insecticide. A wrongful death action against the apartment owner followed. The apartment owner had a CGL policy with Truck Insurance. Truck Insurance refused to defend and indemnify the apartment owner, citing the pollution exclusion contained in the CGL policy. After settling the wrongful death case, the apartment owner sued Truck Insurance on the coverage issue. Issue and Ruling The specific issue before the Supreme Court was whether the standard CGL pollution exclusion clause applies to exclude injury to a tenant resulting from a landlord s allegedly negligent use of pesticides on his property. The Court unanimously ruled that the exclusion did not apply. The pollution exclusion in question does not plainly and clearly exclude ordinary acts of negligence involving toxic chemicals such as pesticides. In other words, in California the pollution exclusion has been restricted to apply only to traditional environmental or industrial pollution claims. In issuing this ruling the California Supreme Court aligned California insurance law with a slight majority of other states on the issue of the scope and application of the standard pollution exclusion. The Court rejected the minority rule that the pollution exclusion applies to traditional environmental pollution claims and also more broadly to any claims of negligence arising out of exposure to toxic substances. questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright 2004 by Barker Law Group, A Professional Law Corporation. All rights reserved.

2 Analysis and Comment Although at first glance the ruling may seem fairly narrow and straightforward, upon further review it becomes clear that the Court has made a fairly significant ruling. o Policy Language The Truck CGL policy contained the following fairly standard exclusion: "We do not cover Bodily Injury or Property Damage (2) Resulting from the actual, alleged, or threatened discharge, dispersal, release or escape of pollutants: (a) at or from the insured location." The terms "Pollution or Pollutants" are defined, in the definitions section at the beginning of the policy, as "mean[ing] any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste materials. Waste materials include materials which are intended to be or have been recycled, reconditioned or reclaimed." o Rationale for the Decision In reaching its decision, the Court came up with several rationales for limiting the scope of the pollution exclusion. Follow Other Jurisdictions The Court began by noting that few cases in California have addressed the scope of the pollution exclusion. The Court cited only two cases where the issue was raised, and both of those cases involved traditional environmental industrial pollution. (e.g. groundwater contamination from a petroleum plant). Apparently recognizing the need to look farther afield, the Court reviewed decisions in numerous other states, and concluded that the majority of state supreme courts have adopted a narrow interpretation of the exclusion. Examples of cases where the exclusion did not apply in other states include: Carbon monoxide leak from apartment furnace Gasoline leak from commercial gas station Property loss from toxic smoke from fire Accidental discharge of hydrocarbons from oil refinery 2

3 Injuries sustained from ingestion of lead paint chips or other lead poisoning Injuries from exposure to carbon monoxide from an oven Injuries from hydrogen sulfide fumes accidentally emitted from a truck Because the Court cited these cases with approval, it will be interesting to see whether out of state precedents will be adopted by California courts. History and Intent of the Exclusionary Language In justifying the adoption of the narrow scope of the pollution exclusion, the Court reviewed the history and intent of the exclusionary language. Before 1966, most CGL policies did not include a pollution exclusion. To the chagrin of insurance companies, courts began interpreting these policies to cover environmental pollution claims. In response, the insurance industry changed the standard CGL policy from an accidentbased policy to an occurrence-based policy. However, courts continued to find in favor of coverage in cases of long-term gradual exposure to pollution. In the 1970 s, partly prompted by the advent of federal environmental legislation, the industry added a specific pollution exclusion; however, the exclusion did not apply where the pollution discharge was sudden and accidental. Naturally, the focus of litigation in the 1980 s shifted to whether the discharge of pollution in any given case was sudden and accidental. Ultimately, in 1985, the standard CGL policy was changed to include an absolute pollution exclusion. In the context of this history, the Court concluded that the purpose of the absolute pollution exclusion was to eliminate coverage for traditional environmental pollution rather than all injuries from toxic substances. Given that the exclusion did not arise out of the desire to eliminate coverage for ordinary acts of general negligence arising out of exposure to toxic chemicals, it would unfair to policyholders to stretch the exclusion to such unexpected lengths. Policy Context and Avoiding Absurdities The Court was critical of the literal approach to interpreting policy language. Simply looking words up in the dictionary will not do. Rather, the context of the language in the policy must be considered. The Court determined that context of the exclusion supports a narrow interpretation. Relying on general rules regarding policy interpretation, 3

4 the court noted that exclusions must be conspicuous, plain, and clear. A layperson reading the policy would interpret the policy to include coverage for ordinary acts of negligence involving toxic substances. By contrast, a literal reading of the policy language could eliminate coverage for virtually any bodily injury caused by exposure to a chemical substance. The Court gave the example of exposure to pool chlorine or iodine applied to a cut. In other words, adopting a literal reading would start the slide down the proverbial slippery slope. Carrier s Lack of Prior Position The Court was also swayed by the fact that Truck Insurance had never formally taken the position with its insureds generally that the pollution exclusion applied as broadly as it argued in this case. Overall Purpose of CGL Policies Finally, the court observed that the ruling was consistent with the overall purpose of CGL policies: To provide the insured with the broadest spectrum of protection against liability for unintentional and unexpected personal injury or property damage arising out of the conduct of the insured s business. Future of the Pollution Exclusion in California The pollution exclusion in California is now limited to claims involving traditional environmental pollution. Insurers will predictably want to know what is encompassed within traditional environmental pollution. The Court s decision is decidedly unhelpful in this regard; the Court admits that it has not provided a precise definition of pollution and that the issue is left open for future cases. In any event, the Court has redefined the focus of coverage analysis and litigation. No longer can it be argued that the pollution exclusion extends to all cases of exposure to toxic chemicals. Rather, the coverage analysis will shift to the distinction between traditional environmental pollution and ordinary acts of negligence involving toxic chemicals. The many insurers, like Truck Insurance, who have asserted the broad interpretation of the pollution exclusion need to revisit the interpretation of their own policies. Insurers should note that although the Court s decision was made in the context of injury from commercial insecticides, the ramifications of the case are much broader. A review of the out-of-state cases referenced above makes it clear that a wide variety of injuries caused 4

5 by exposure to toxic chemicals are now potentially subject to coverage under the standard CGL policy. As a final thought, there is an open question regarding how the Court s decision will apply to mold and sick building syndrome claims. Some insurers have relied upon the pollution exclusion to deny coverage for such claims. The MacKinnon decision provides insureds counsel with strong arguments that the pollution exclusion does not apply to these claims. Christopher W. Olmsted, Esq. Direct: (619) Practice Area: Civil Litigation Areas of Emphasis: Employment Litigation and Labor Law Insurance Defense Insurance Bad Faith Construction Litigation Business Litigation Bar Admissions: California, 1994 California District Court, Central District of California, 1994 U.S. Court of Appeals, Ninth Circuit, 1996 Education: J.D., Loyola Law School, 1994 B.A., University of California, Berkeley, 1991 Summary: Mr. Olmsted is an attorney practicing in the areas of employment litigation and compliance, business litigation, insurance defense, and insurance bad faith. His experience in insurance defense includes automobile, commercial, and homeowners claims, and encompasses personal injury, property damage, mold claims, and wrongful death matters. He has litigated bad faith cases including homeowners, mold, automobile, and disability insurance claims. Additionally, he has represented clients in the areas of business and commercial litigation, asbestos litigation, construction collection and construction defects. 5

6 Mr. Olmsted's employment litigation experience includes: FEHA claims regarding race, gender, age, religion, national origin, sexual orientation, disability, pregnancy and sexual harassment; California CFRA and federal FMLA; federal ADA and ADEA; False Claim and whistleblowing actions; public policy violations; ERISA; Labor Board and Unemployment Insurance claims. He has represented clients in state and federal jury and bench trials, appeals before California and federal courts of appeal, judicial and contractual arbitrations, and administrative law hearings. Mr. Olmsted is a member of: San Diego Risk and Insurance Management Society, Association of Business Trial Lawyers, California Bark Employment Law Section and San Diego County Bar Association Insurance Section. Reported Cases: Wittkopf v. County of Los Angeles, 90 Cal.App. 4 th 1205; Colmenares v. Braemar Country Club, 89 Cal.App. 4 th 778. Seminars presented include: Speaker on The Nuts & Bolts of Prevailing Wage Law for the Engineering General Contractor s Society, San Diego, December 2, Speaker regarding California Leaves of Absences, Lorman Educational Services Seminar, San Diego, CA, October 15, Speaker on How to Litigate Your First Civil Trial in California, National Business Institute, San Diego, CA, Firm-sponsored seminar on Employment Law: Avoiding Liability in the Hiring Process, San Diego, CA, March 27, Speaker regarding Employment Issues for the Construction Trade, Lorman Educational Services Seminar, San Diego, CA July 20, Pro-Bono Activities: San Diego Volunteer Lawyer Program, Domestic Violence Clinic San Diego Volunteer Lawyer Program Disaster Relief Assistance Articles: Appellate Court Rejects Insured s Expansive Definition of Arising Out of the Use Clause, by Christopher W. Olmsted Legislature Doubles Labor Code Fine for Contracting with Unlicensed Contractor, by Christopher W. Olmsted Legislative Update: Labor Code Private Attorneys General Act, by Christopher W. Olmsted What to do in the First 30 Days After Being Sued, by Christopher W. Olmsted 6

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