Is My Drywall Chinese? - HB Litigation Conferences

interpretation comports with the APE’s history as well as the purpose of CGL policies. The
court stipulated that, although “environmental pollution” may need further clarification and was
not a “paragon of precision,” the common understanding of the term was sufficient to decide the
case before it. 42
In Belt Painting Corp. v. TIG Insurance Co., 43 the New York Court of Appeals found
that the APE in a TIG insurance company policy was ambiguous when applied to a claim for
bodily injury arising from inhalation of paint or solvent fumes. Relying on two earlier decisions
rejecting pollution exclusions in the context of asbestos bodily injury and lead-paint poisoning,
the New York court reaffirmed that “the purpose of the exclusion was to deal with broadly
dispersed environmental pollution.” 44
In analysis potentially relevant to potential liability for Chinese drywall claims, the court
then found that the exclusion to be ambiguous since it “does not clearly and unambiguously
exclude a personal injury claim from indoor exposure to a plaintiff-insured’s tools of its trade.” 45
The court found that the “drifting” of paint fumes did not meet the “environmental implications”
of the terms, “discharge, dispersal, seepage, migration, release or escape” of “pollutants”
required by the clause. The court was “reluctant to adopt an interpretation that would infinitely
enlarge the scope of the term ‘pollutants,’ and seemingly contradict both a ‘common speech’
understanding of the relevant terms and the reasonable expectations of a business person.” 46 In
42
Id. at 243-44.
43
795 N.E.2d 15 (N.Y. 2003).
44
Id. at 18 (citing Continental Cas. Co. v. Rapid-American Corp., 609 N.E.2d 640 (N.Y. 1993)
and Westview Assocs. v. Guaranty Nat’l Ins. Co., 740 N.E.2d 220 (N.Y. 2000)).
45
Id. at 20.
46 Id. at 20-21
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