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Gainsco Insurance Co. v. Amoco Production Co.8/19/2002
ainsco had not acted in bad faith by denying coverage pursuant to the total pollution exclusion in its policy. We now must address whether Gainsco was right. The question, as it has been defined by the parties and in numerous cases across the country, is whether the pollution exclusion is narrowly limited to the concept of environmental pollution or whether it also excludes coverage for personal injuries caused by irritants and contaminants under circumstances such as exist in the instant case.
[ ] In arguing that the pollution exclusion forecloses coverage in situations such as the one in the instant case, Gainsco points out that the exclusion does not in direct language limit itself to environmental pollution. A close reading of the exclusion reveals that Gainsco is correct. Gainsco also directs us to numerous cases wherein the pollution exclusion has been found to bar coverage for losses similar to Abraham's death from hydrogen sulfide gas. See, e.g., Reliance Ins. Co. v. Moessner, 121 F.3d 895, 901 (3 rd Cir. 1997) (exclusion does not require release of pollutant to the atmosphere and does not limit itself to environmental catastrophes); American States Ins. Co. v. Nethery, 79 F.3d 473, 475-78 (5 th Cir. 1996) (pollution exclusion encompasses more than traditional conceptions of pollution); Toledo v. Van Waters & Rogers, Inc., 92 F.Supp.2d 44, 51-52 (D.R.I. 2000) (plain and ordinary meaning of language of pollution exclusion precludes coverage even for non-environmental pollution); American States Ins. Co. v. Technical Surfacing, Inc., 50 F.Supp.2d 888, 889-90 (D.Minn. 1999) (pollution exclusion not limited to environmental or outdoor pollution); Brown v. American Motorists Ins. Co., 930 F.Supp. 207, 208-09 (E.D.Pa. 1996), aff'd, 111 F.3d 125 (3 rd Cir.), cert. denied, 522 U.S. 950 (1997) (clear and unambiguous policy language shows no intent to limit pollution exclusion to environmental pollution); TerraMatrix, Inc. v. United States Fire Ins. Co., 939 P.2d 483, 488 (Colo.App. 1997) (plain language of pollution exclusion not limited to environmental or industrial pollution); Lititz Mut. Ins. Co. v. Steely, 746 A.2d 607, 612-13 (Pa.Super. 1999), rev'd on other grounds, 785 A.2d 975 (Pa. 2001) (pollution exclusion not limited to environmental pollution); Madison Const. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 105 (1999) (no language in pollution exclusion limits its application to environmental pollution); and Cook v. Evanson, 83 Wash.App. 149, 920 P.2d 1223, 1226-27 (1996) (pollution exclusion not limited to classic environmental pollution).
[ ] Many courts have come to a conclusion on this issue directly contrary to the holdings of the above-cited cases. See, e.g., Nautilus Ins. Co. v. Jabar, 188 F.3d 27, 31 (1 st Cir. 1999) (reasonable interpretation of exclusion is that it applies only to environmental pollution); Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 530 (9 th Cir. 1997) (exclusion's reference to "seepage, pollution and contamination" indicates environmental-type harm); Pipefitters Welfare Educational Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043 (7 th Cir. 1992) (literal interpretation of pollution exclusion's terms would be overbroad and would render judicial limitations on insurance policies meaningless); Keggi v. Northbrook Property and Cas. Ins. Co., 199 Ariz. 43, 13 P.3d 785, 791 (2000) (exclusion intended only to exclude coverage for traditional environmental pollution); Koloms, 687 N.E.2d at 81 (pollution exclusion does not apply to "toxic torts" but is restricted to instances of classic pollution such as groundwater or soil contamination from industrial operations); Motorists Mut. Ins. Co. v. RSJ, Inc., 926 S.W.2
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