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Richardson v. Nationwide Mutual Insurance Company6/12/2003
gth:
ASI [the insurer] submits that the deletion of the requirement that the pollution be "[discharged] into or upon land, the atmosphere, or any watercourse or body of water" should be viewed by this court as a clear signal of the industry's intent to broaden the exclusion beyond traditional environmental contamination. We disagree. This same argument was rejected in West American Insurance Co. v. Tufco Flooring East, Inc., [supra,] 409 S.E.2d 692, a case which involved the application of the pollution exclusion to damages caused by the release of fumes from a flooring sealant. In Tufco, the court noted that, even after its amendment in 1986, the absolute pollution exclusion continued to employ terms of art which bespeak of environmental contamination. The court reasoned:
"Because the operative policy terms 'discharge,' 'dispersal,' 'release,' and 'escape' are environmental terms of art, the omission of the language 'into or upon land, the atmosphere or any watercourse or body of water' in the new pollution exclusion is insignificant. The omission of the phrase only removes a redundancy in the language of the exclusion that was present in the earlier pollution exclusion clause. Consequently, we find that any 'discharge, dispersal, release, or escape' of a pollutant must be into the environment in order to trigger the pollution exclusion clause and deny coverage to the insured." Tufco, 409 S.E.2d at 700.
See also Center for Creative Studies, 871 F. Supp [941,] 946 [(E.D. Mich. 1994)] ("the fact that the [former version] contained language relating to discharge 'into or upon land, the atmosphere . . .' is not significant"). We agree with this analysis. In our view, the deletion of the aforementioned language does not portend an expansion of the pollution exclusion beyond the context of traditional environmental contamination.
The court's treatment of this issue in Koloms is significant because, in a case decided under the prior language of the exclusion, the same court had held that "the atmosphere" meant "the external atmosphere which surrounds the earth" rather than "the multiple, diverse internal environs or surroundings of individual buildings." United States Fid. & Guar. Co. v. Wilkins Insulation Co., 578 N.E.2d 926, 933 (Ill. 1991). In Koloms, however, the court recognized that notwithstanding the removal from the exclusion of the words "into or upon land, the atmosphere or any watercourse or body of water," the exclusion still refers to "traditional environmental contamination," and we think that this is true whether that contamination manifests itself indoors or outdoors.
Judge Glickman faults the reasoning of Koloms because, he says, post at 88 note 25, the revised version of the exclusion no longer contained the one phrase in the clause connoting that the exclusion applied only to external pollution. As we see it, however, the entire phrasing of the exclusion, beginning with the enumeration of eight pollutants collectively reminiscent of byproducts of industrial pollution, and including the extensive use of environmental terms, mirrors the very problem which the exclusion was designed to resolve - insurer liability for major government-mandated environmental cleanups. Conditions calling for such a cleanup may exist within a factory as well as at a waste dump, and the removal of the quoted language from the prior exclusion arguably confirms that the absolute exclusion would apply at an indoor industrial site. This is, however, a long way indeed from a faulty furnace in an apartment house. Moreover, if the deletion of the phrase had effected such a major reduction in coverage, this would surely have been publicly announced with some specificity,
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 District of Columbia Personal Injury Attorneys
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