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Cotter Corp. v. American Empire Surplus Lines Insurance Co.8/29/2002
icy that more precisely identified materials produced by Cotter that Lexington intended to exclude from coverage, they did not do so. There is nothing inherently ambiguous or unclear about the language of the absolute pollution exclusion at issue. There is no dispute that Cotter's activities included the "discharge, dispersal, release or escape" of "irritants, pollutants or contaminants" into or upon land or water. Thus, under the particular facts and circumstances here, the clause unambiguously excluded coverage. As the trial court concluded, "the exclusion clause is clearly intended to be an absolute bar to coverage for any form of pollution."
In so holding, we recognize, as Cotter asserts, that some courts have concluded that any absolute exclusion clause cannot be read literally because such interpretation would negate virtually all coverage. See, e.g., American States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996). Nevertheless, the overwhelming majority of courts addressing the issue have found that the absolute pollution exclusion unambiguously bars coverage for claims arising out of exposure to irritants, pollutants, or contaminants, as is the case here. See, e.g., Technical Coating Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843 (11th Cir. 1998); Alcolac, Inc. v. Cal. Union Ins. Co., 716 F. Supp. 1546 (D. Md. 1989); Truitt Oil & Gas Co. v. Ranger Ins. Co., 498 S.E.2d 572 (Ga. Ct. App. 1998); Town of Harrison v. Nat'l Union Fire Ins. Co., 89 N.Y.2d 308, 675 N.E.2d 829 (1996); Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517 (Tex. 1995)(collecting cases).
Further, contrary to Cotter's contention, our interpretation does not nullify the essential coverage provided by the Lexington policy for a wide variety of accidents or mishaps. See Technical Coating Applicators, Inc. v. U.S. Fid. & Guar. Co., supra.
Accordingly, we conclude that the trial court properly determined that the Lexington policy containing the absolute exclusion clause did not afford coverage to Cotter.
The judgment is affirmed.
JUDGE DAILEY and JUDGE PIERCE concur.
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