Jeff Stempel and I are currently in the process of preparing a 3rd edition of “General Liability Insurance Coverage: Key Issues In Every State.” Lauren Kelly, soon to be second-year student at Villanova Law School, is spending the summer helping me with the project as a Research Assistant. [Eight weeks with me. Can you imagine. School can’t start fast enough for the poor girl.]

Lauren just finished her research on the Absolute/Total Pollution Exclusion chapter. Based on her findings, which includes a staggering 67 new cases since the 2nd edition (early 2011), here is the current national scorecard on the Pollution Exclusion:

Since 2011, 36 states had a state or federal court decision addressing the Pollution Exclusion. Of these recent decisions, seven came from state Supreme Courts.

In general, the overall national Pollution Exclusion picture looks like this: 24 states apply the Pollution Exclusion broadly, to all hazardous substances, and not simply so-called “traditional environmental pollution.” Twenty states apply the Pollution Exclusion narrowly, limiting its application to traditional environmental pollution. In three states the issue is not so clear cut. And three states have never addressed it.

There have always been Pollution Exclusion cases addressing whether somewhat odd substances are considered a “pollutant.” This has not changed. Since 2011, courts have addressed whether such things as aroma from curry, cooking oil, deli odors, ejaculate, swine waste odors and bat guano qualified as a “pollutant.”

The moral of the story is quite obvious. There continues to be no end to the extent that Pollution Exclusion decisions leach from federal and state courthouses all over the country. With many coverage issues, once the state high court speaks, litigation tails off. But there has never been the case with the Pollution Exclusion.