Is My Drywall Chinese? - HB Litigation Conferences

coverage,” the front and inside of the stuffer did not suggest, much
less clearly state, that the HM-3 policy, in any way, reduced
coverage. Rather, to the contrary, part of the heading stated,
“You’ll see that we’ve increased the limits of coverage, expanded
definitions, added some new coverage and improved service.”
That gives the reader absolutely no inference that a substantial
lessening of coverage is now in force because of the change. 67
As a result, the court rejected the insurance company’s “claim that its intent was to ‘clarify’
coverage not to reduce coverage.” The court, therefore, affirmed the trial court=s holding
voiding the insurance company’s “absolute” pollution exclusion.
Cases Applying Pollution Exclusions to Preclude Coverage
Many courts, however, particularly when insurance companies first used the 1986 APE to
reject coverage, have adopted insurance company arguments that the absolute or TPE limits
coverage for non-industrial pollution claims. 68 In many of the cases, the courts were not
presented with the evidence, discussed above, of the insurance industry’s historical purpose and
intent regarding the 1986 exclusion. Many also were decided before more recent cases that have
rejected the attempts by insurance companies to fit so many square pegs into a round APE hole.
Insurance companies also have given policyholder’s favorable settlements to preserve rulings
67
1997 WL 537022, at *3.
68
E.g., Reed v. Auto-Owners Ins. Co., 284 Ga. 286, 2008 Ga. Lexis 746 (2008); American States
Ins. Co. v. Nethery, 79 F.3d 473 (5th Cir. 1996); Park-Ohio Indus., Inc. v. Home Indem. Co., 975
F.2d 1215 (6th Cir. 1992); Shalimar Contractors, Inc. v. American States Ins. Co., 975 F. Supp.
1450 (M.D. Ala. 1997), aff’d, 158 F.3d 588 (11th Cir. 1998); Brown v. American Motorists Ins.
Co., 930 F. Supp. 207 (E.D. Pa. 1996), aff’d, 111 F.3d 125 (3d Cir. 1997); Board of Regents of
Univ. of Minn. v. Royal Ins. Co., 517 N.W.2d 888 (Minn. 1994); Landshire Fast Foods of
Milwaukee, Inc. v. Employers Mut. Cas. Co., No. 03-0896, 2004 WL 135412 (Wis. Ct. App. Jan
28, 2004); Terramatrix, Inc. v. United States Fire Ins. Co., 939 P.2d 483 (Colo. Ct. App. 1997);
Cook v. Evanson, 920 P.2d 1223, 1227 (Wash. Ct. App. 1996).
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