Is My Drywall Chinese? - HB Litigation Conferences

The Expected Primary Defense:
“Pollution Pollution” Exclusions
Policyholder arguments:
– Traditional “pollution pollution” exclusions were designed to
preclude coverage for true industrial environmental
pollution. Insurers represented to regulators that the
exclusions were limited in scope.
Insurer arguments:
– Drywall emits noxious fumes or odors and damage or
liability that results, including defense costs, is
excluded.
Insurers likely to press for broad interpretations
of these exclusions.
Different varieties:
Overview
– “Absolute Absolute” pollution exclusion (APE)
– “Total Total” pollution exclusion (TPE)
Usually standard-form
standard form
Past is prologue
Effect of Massachusetts v. EPA, EPA,
549 U.S.
___, 127 S. Ct. 1438 (2007) (5-4; (5 4; op. by
Stevens, J.).
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