Absolute Pollution Exclusion

Absolute pollution exclusion is a commercial liability insurance policy clause that removes coverage of pollution that results from regular business operations. Absolute pollution exclusions to comprehensive general liability insurance policies became common after 1986, when standard pollution exclusions no longer contained “sudden and accidental” pollution incidents.

Absolute pollution exclusions came about in response to government regulations of environmentally harmful materials. Perhaps the most well-known case involved the Montrose Chemical Corporation of California, which produced dichlorodiphenyl- trichloroethane, commonly known as DDT. The company discharged waste into the Pacific Ocean for decades, and a federal lawsuit required the company to pay for the environmental cleanup costs resulting from the waste it produced.

In response to claims made against Montrose, insurers brought a number of lawsuits, including Montrose Chemical Corp. v. Admiral Insurance Co., in an effort to push responsibility for the claims to Montrose. After several cases left the insurance companies responsible for cleanup coverage, insurers began excluding coverage of pollution as a standard coverage item.

Absolute pollution exclusions are not true absolute exclusions in that they do allow coverage for incidental pollution events, such as those caused by events not related to normal business operations. Because it may provide coverage in certain situations this type of clause is sometimes referred to as a broad form pollution exclusion. A clause that denies coverage for all pollution events would be considered a total pollution exclusion, and may exclude liability coverage for bodily injury or property damage caused by a pollution event.

The use of an absolute pollution exclusion may still leave the definition of what is considered pollution moot. Courts may address the issue of what is considered pollution. Insurers have an incentive to consider a broad range of events as related to pollution, including lead paint and asbestos damage, to be excluded because they do not want to pay for claims.

• Bodily injury sustained in a building owned by, occupied by, rented to or loaned to an insured if caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building, or heat water for personal use by building’s occupants or guests
• Bodily injury or property damage in a building owned by, occupied by, rented to or loaned to an insured, or at a premises on which an insured contractor is working if from heat smoke or fumes from a hostile fire
• “Bodily injury” or “property damage” arising out of the unintentional escape of fuels, lubricants or other operating fluids which are needed to perform necessary functions for the operation of mobile equipment or parts. The loss must occur at an off-premises site at which the insured is performing operations
• Bodily injury or property damage sustained within a building and caused by the release of gases, fumes or vapors from materials brought into that building in connection with operations being performed by the insured or its subcontractor