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Vol. 7, Iss. 5
June 6, 2018


Insurance Coverage Talk Radio:
What Is The Most Important Pollution Exclusion Decision?

Some of the most entertaining sports talk-radio is when listeners are asked to weigh-in with their choice for the best of something, such as left-handed pitchers (Steve Carlton) or sports movies (Field of Dreams) (sorry, Rudy fans). Since talk radio thrives on controversy, and because people are passionate about things that they believe are the best of something, it is not surprising that a lively and entertaining debate can be counted on when peoples’ strongly held beliefs are challenged.

So if such a thing as an insurance coverage talk-radio show existed (work with me here), surely there would be a night where the host invites listeners to call in with their vote for the most important judicial decision to address this or that coverage issue.

What if that topic were the pollution exclusion. Here’s how I see it going:

[Let’s go to the phones and talk to Jeff from Sacramento.] “Hey guys, first-time caller, long-time listener.” [Jeff - turn down your radio.] “When it comes to the pollution exclusion, I’d have to say that the most important decision is Pipefitters v. Westchester Fire Ins. from the Seventh Circuit in 1992. It was this court’s observation that, without some so-called limiting principle, the absolute pollution exclusion would lead to some absurd results, such as excluding coverage for bodily injury suffered by a person who slips and falls on the spilled contents of a bottle of Drano. The Drano example led to some courts limiting the pollution exclusion to traditional environmental pollution.”

[Thanks for the call Jeff. Amy from Piscataway in the Garden State is on the line. She must know a thing or two about pollution. Go ahead, Amy, you’re live on Coverage Call-In.]

“Thanks for taking my call. Love your show. I’ve gotta disagree with the guy from Sacramento. You have to go back to when it all began. I think that Lansco v. DEP is the most important pollution exclusion decision. Sure, it’s a 1975 New Jersey trial court decision, but that’s just the point. It was the first to address the meaning of ‘sudden’ in the ‘sudden and accidental’ exception to the pollution exclusion. Lansco concluded that sudden means unexpected or unforeseen. And defining sudden as something other than temporally abrupt is what opened the door for insureds to seek coverage for gradual discharges of pollution. And we all know how contentious and significant that issue was in the large environmental coverage cases in the 1980s and 90s. And it was the litigation over the sudden and accidental exclusion that led to the adoption of the absolute and total pollution exclusions – which has brought another 25-plus years of hotly contested coverage litigation. You could say it all goes back to Lansco.”

Well thanks everyone for listening to Coverage Call-In and to Jimmy Smith for the great job, as always, behind the glass. Tune in tomorrow night when we’ll be joined by Bill Roberts to discuss his new treatise on the definition of “mobile equipment.” You won’t want to miss it.

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