 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
South Dakota State Cement Plant Commission v. Wausau Underwriters Insurance Co.8/23/2000
to "fall within the exclusion, ... it can only do so in certain very precisely drawn circumstances: if it is an irritant or contaminant." Guilford, 688 FSupp at 794. In Guilford, the court noted that the substance charged as the contaminant or irritant was oil, which clearly has been recognized as a pollutant. The court stated " laintiff's argument that it could not reasonably have expected oil to be considered a pollutant is disingenuous." Id. n1.
[ ] Such is not the case here. The alleged pollutant in this case is cement dust, a substance which has not been so clearly defined as a "pollutant," let alone a "contaminant." The substance must generally "occur in a setting such that they would be recognized as a toxic or particularly harmful substance in industry or by governmental regulators." Regional Bank of Colorado, 35 F3d at 498 (citing Westchester, 768 FSupp at 1470 (stating that a 'pollutant' is not merely any substance that may cause harm to the 'egg shell plaintiff,' but rather it is a toxic or particularly harmful material which is recognized as such in industry or by governmental regulators.")); see also In re Hub, 106 BR at 376 (concluding recycled materials were not "inherently toxic," in contrast to dioxin-tainted waste oil or oil discharged into rivers and other bodies of water to bring the plaintiff's cause of action within the pollution exclusion clause); Molton, Allen & Williams, Inc. v. St. Paul Fire & Marine Ins. Co., 347 So2d 95, 98 (Ala 1977) (stating that a pollution exclusion does not apply to natural substances such as sand merely because they are deposited on another's property).
[ ] Courts have concluded that a pollution exclusion clause is not intended to exclude all substances merely because a substance may irritate or contaminate. Thus, a number of courts have chosen to distinguish between relatively benign substances and substances that cause degradation to the environment. The terms used in Wausau's exclusion clause, such as "discharge," "dispersal," "release" and "escape," are terms of art in environmental law and are generally used to refer to damage or injury resulting from environmental pollution. Sullins, 667 A2d at 617 (citing Atlantic Mut. Ins. Co. v. McFadden, 595 NE2d 762, 764 (Mass 1992) (stating " he terms used in the pollution exclusion such as 'discharge,' 'dispersal,' 'release,' and 'escape' are terms of art in environmental law which generally are used with reference to damage or injury caused by improper disposal or containment of hazardous waste."); West American Ins. Co. v. Tufco Flooring East, Inc., 409 SE2d 692, 699 (NCApp 1991) (noting that the terms "discharge" and "release" are terms of art in environmental law)). " n ordinarily intelligent insured could reasonably interpret the pollution exclusion clause as applying only to environmental pollution," as opposed to personal injury claims brought by private landowners. Nautilus Insurance Co. v. Jabar, 188 F3d 27, 30 (1stCir 1999); see also Stoney Run Co. v. Prudential-LMI Commercial Ins. Co., 47 F3d 34, 38 (2d Cir 1995) (stating the pollution exclusion clause can be reasonably interpreted as applying only to environmental pollution); Regional Bank of Colorado, N.A., 35 F3d at 498 (stating " t seems far more reasonable that a policyholder would understand the exclusion as being limited to irritants and contaminants commonly thought of as [environmental] pollution and not as applying to every possible irritant or contaminant imaginable."); American States Ins. Co. v. Koloms, 687 NE2d 72, 82 (Ill 1997) (stating "we hold that the exclusion applies only to those injuries caused by traditional environmental pollution.")).
[ ] A limiting principle of some kind must be applied to poll
Page 1 2 3 4 5 6 7 8 9 10 11 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|