Is My Drywall Chinese? - HB Litigation Conferences

With respect to the new, absolute pollution exclusion, the ISO notice informed policyholders
that:
Pollution Liability – The new policies do not cover this liability if
the pollutants escape from your premises or a waste disposal or
treatment facility . . . . Certain pollution exposures away from
your premises – including many that arise out of your products or
work – are covered regardless of whether the emission was
“sudden” or not. See exclusion f. under Coverage A for details. 13
ISO included a table explaining the “Highlights of Current and Revised Contracts.” 14 ISO noted
that under the absolute pollution exclusion, “pollution liability” was “excluded if emission
originates on named insured’s premises or a waste disposal or treatment facility. Off-site
emissions covered unless pollutants are waste or unless the pollutants are brought to jobsite in
connection with insured’s or subcontractor’s operations.” 15 Reiterating what was promised in its
regulatory representations, ISO noted that “[r]esulting coverage embraces products-completed
operations exposure for both sudden and gradual emissions.” 16
Notably, in 1985, prior to the 1986 exclusion’s ultimate approval, the New Jersey Deputy
Commissioner of Insurance, Jasper J. Jackson, summarily rejected an “absolute” pollution
exclusion submitted to the Department of Insurance by Aetna. In doing so, New Jersey’s Deputy
Commissioner noted, “Your submission indicates no reduction of rates to reflect the proposed
(. . . cont’d)
12
See, e.g., ISO, Commercial General Liability Program Instructions at 1 (1986) (“the use of
policyholder notices . . . has been suggested, and in fact required in some states”).
13
Id. at 3 (emphasis added).
14 Id. at 7.
15
Id.
16
Id.
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