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Gainsco Insurance Co. v. Amoco Production Co.8/19/2002
d 679, 680-82 (Ky.App. 1996) (total pollution exclusion uses terminology from environmental law and the historical objective of the exclusion was to avoid coverage for environmental catastrophes); Doerr v. Mobil Oil Corp., 774 So.2d 119, 135 (La. 2000), corrected, 782 So.2d 573 (La. 2001) (absolute pollution exclusion not intended to e xclude coverage for all interactions with irritants or contaminants and should be construed to exclude coverage only for environmental pollution); Atlantic Mut. Ins. Co. v. McFadden, 413 Mass. 90, 595 N.E.2d 762, 764 (1992) (pollution exclusion's terms are terms of art in environmental law); Weaver v. Royal Ins. Co. of America, 140 N.H. 780, 674 A.2d 975, 977 (1996) (where phrase "discharge, dispersal, release or escape" was not defined, it should be construed against the insurer); Karroll v. Atomergic Chemetals Corp., 194 A.D.2d 715, 600 N.Y.S.2d 101, 102 (1993) (exclusion reasonably interpreted to apply only to environmental pollution); West American Ins. Co. v. Tufco Flooring East, Inc., 104 N.C.App. 312, 409 S.E.2d 692, 699 (1991), overruled on other grounds by Gaston County Dyeing Mach. Co. v. Northfield Ins. Co., 351 N.C. 293, 524 S.E.2d 558 (2000) (terms such as "discharge, dispersal, release, or escape" are environmental terms of art meant to apply to environmental pollution); and Kent Farms, Inc. v. Zurich Ins. Co., 93 Wash.App. 414, 969 P.2d 109, 111-12 (1998), aff'd, 140 Wash.2d 396, 998 P.2d 292 (2000) (reasonable reading of the exclusion limits it to traditional environmental damages).
[ ] In light of this conflict in authority as to the intent and scope of the total pollution exclusion, it is helpful to consider its original purpose. The pollution exclusion had its inception in the 1970's in response to federal and state legislation mandating responsibility for the cleanup costs of environmental pollution. 9 Couch on Insurance 3d ยง 127:3 (1997). The purpose of the current version of the exclusion remains to exclude these governmentally mandated cleanup costs. Koloms, 687 N.E.2d at 81-82. To read the exclusion more broadly ignores the insurers' objective in creating the exclusion and ignores the general coverage provisions of the policy. Kent Farms, Inc. v. Zurich Ins. Co., 140 Wash.2d 396, 998 P.2d 292, 295 (2000).
[ ] We interpret insurance policies just as we interpret other contracts, except that words used in an insurance policy are given the plain meaning that a person in the position of the insured would understand them to mean. Doctors' Co., 864 P.2d at 1023. We cannot believe that any person in the position of the insured would understand the word "pollution" in this exclusion to mean anything other than environmental pollution. In a footnote in its decision letter, the district court concisely pinpointed what is wrong with Gainsco's argument:
In other words, the [Koloms] Court invites us to consider the ordinary meaning the term, "pollution." We might simply ask in this context, "Was the incident in this case an instance of pollution?" Or, to get into the context of the total pollution exclusion clause, "Was Abraham's death caused by pollution?" Ordinary usage of the term tells us this was not an instance of pollution, and Abraham's death was not caused by pollution.
[ ] We do not know if it is the majority position, but we will join with those courts that have held the total pollution exclusion to be limited to the concept of environmental pollution. The district court did not err as a matter of law when it held that Amoco's indemnity claim was covered under Andrews' policy.
Issue No. 6: Did the district court err as a matter of law when it held that Amoco's indemnity claim was covered under Andrews'
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