Is My Drywall Chinese? - HB Litigation Conferences

fumes, lead paint, sealants and coating materials, solvents, etches, cleaners and their fumes,
pesticides, petroleum products, smoke, municipal waste or garbage, and radioactive
materials. States taking this “literal” approach include Florida, Texas, Virginia, Georgia and
Mississippi, among others. See, e.g., Deni Associates of Florida v. State Farm Fire & Cas.
Ins. Co., 711 S.2d 1135, 1139-41 (Fla. 1998) (applying exclusion to accidental ammonia spill
occurring during an office move); City of Chesapeake v. States Self-Insurers Risk Retention
Group, Inc., 628 S.E.2d 539, 541 (Va. 2006) (exclusion applied to injuries caused by
trihalomethanes in city water supply); Firemen’s Ins. Co. v. Kline & Son Cement Repair,
Inc., 474 F.Supp.2d 779, 799 (E.D. Va. 2007) (constrained by precedent, court applies
exclusion to contractors’ liability for injuries resulting from subcontractor’s application of
epoxy sealant to concrete warehouse floor).
The courts of other states have held that the absolute pollution exclusion is
ambiguous, and such courts consider extrinsic evidence to determine the exclusion’s reach.
These courts have concluded that the exclusion was intended to apply only to traditional
environmental pollution, and that to apply it literally would extend the exclusion beyond its
intended scope. These courts have held that the exclusion does not apply to the same set of
substances to which the literalist courts have applied it. States taking this “traditional”
approach include Alabama, Arizona, California, Louisiana, New Jersey, New York, Illinois,
Massachusetts, Maryland, North Carolina, Ohio, and the District of Columbia, among others.
The modern trend seems to be to apply the exclusion only to traditional environmental
pollution. See, e.g., Belt Painting Corp. v. TIG Ins. Co., 795 N.E.2d 15 (N.Y. 2003)
(exclusion not applicable to release of paint fumes in the normal course of a painting
contractor’s painting business); MacKinnon v. Truck Ins. Exch., 73 P.3d 1205 (Cal. 2003)
(exclusion not applicable to landlord’s liability for death of tenant caused by negligent
- 11 -