Pollution Exclusions Thursday, February 28, 2013, 1:30 p.m. Gerald Deneen Vice President Casualty Product Swiss Re Schaumburg, Ill. Gerald Deneen started his insurance career as a reinsurance treaty broker with E. W. Blanch Co. after graduating college. In 1985, he joined Employers Reinsurance Corporation, and for the next 18 years spent most of his time in the casualty treaty department in various underwriting and production roles. He spent a year with W.R. Berkley in the Chicago area as a property/casualty underwriter. He re-joined Employers Reinsurance in 2004 in the casualty product area. He has remained in the casualty product department with Swiss Re since its purchase of Employers Re from General Electric in 2006. Gerry's specific areas of focus are commercial and personal umbrellas and construction underwriting. He has extensive knowledge of the ISO commercial auto and commercial general liability manuals as well as ISO policy forms and endorsements. He has an expertise in casualty insurance coverage issues and policy and endorsement form review. He has Bachelor of Arts in business administration from the University of St. Thomas in St. Paul, Minn. Gerry also holds an M.B.A. from the University of Missouri - Kansas City. He has earned the CPCU and ARe professional designations as well. Session Description: The recent Indiana Supreme Court decision regarding pollution coverage and the Commercial General Liability policy has received much publicity in the trade press, but what does it mean to commercial lines insurance? Gerald Deneen, vice president of casualty product, Swiss Re, will discuss the impact of this decision on writers of CGL insurance. He will also provide insight on the current status of environmental impairment litigation in the United States in respect to ISO's pollution exclusion, specifically addressing the type of pollution-related claims that are excluded or not excluded on a state-by-state basis.
Transcript
Pollution Exclusions Thursday, February 28, 2013, 1:30 p.m.
Gerald Deneen Vice President Casualty Product Swiss Re Schaumburg, Ill. Gerald Deneen started his insurance career as a reinsurance treaty broker with E. W. Blanch Co. after graduating college. In 1985, he joined Employers Reinsurance Corporation, and for the next 18 years spent most of his time in the casualty treaty department in various underwriting and production roles. He spent a year with W.R. Berkley in the Chicago area as a property/casualty underwriter. He re-joined Employers Reinsurance in 2004 in the casualty product area. He has remained in the casualty product department with Swiss Re since its purchase of Employers Re from General Electric in 2006. Gerry's specific areas of focus are commercial and personal umbrellas and construction underwriting. He has extensive knowledge of the ISO commercial auto and commercial general liability manuals as well as ISO policy forms and endorsements. He has an expertise in casualty insurance coverage issues and policy and endorsement form review. He has Bachelor of Arts in business administration from the University of St. Thomas in St. Paul, Minn. Gerry also holds an M.B.A. from the University of Missouri - Kansas City. He has earned the CPCU and ARe professional designations as well. Session Description: The recent Indiana Supreme Court decision regarding pollution coverage and the Commercial General Liability policy has received much publicity in the trade press, but what does it mean to commercial lines insurance? Gerald Deneen, vice president of casualty product, Swiss Re, will discuss the impact of this decision on writers of CGL insurance. He will also provide insight on the current status of environmental impairment litigation in the United States in respect to ISO's pollution exclusion, specifically addressing the type of pollution-related claims that are excluded or not excluded on a state-by-state basis.
Top Three Session Ideas Tools or tips you learned from this session and can apply back at the office.
• 1973 ISO Comprehensive General Liability Policy • What Does Sudden and Accidental Mean? • Implications if Gradual Pollution is Covered With 1973 Wording • Takeaways From Sudden and Accidental Judicial History
RCRA & CERCLA Statutes
• Resource Conservation and Recovery Act of 1976 • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of
1980 • RCRA and CERCLA Statutes Address Onsite Pollution and/or Government Fines or
Orders to Pay for Clean-up of a Designated Hazardous Waste Site • Potential Responsible Parties Letters Were Government Fines or Orders • Owned Property Exclusion
ISO Pollution Exclusion History
• ISO Endorsed the 1973 CGL Policy • “Bodily Injury” or “Property Damage” • Loss, Cost, or Expense
o Addressed or Excluded PRP Financial and Legal Requirements • “Givebacks” • State Courts Application of the Pollution Exclusion to Environmental Pollution
o Courts Have Been Extremely Mixed When Determining if the Pollution Exclusion Excludes a Specific Substance in Question
Is a Substance a “Pollutant?”
• Question Underwriters Should Ask When Writing a Risk That Uses Toxic Chemicals • Pollutants vs. Waste • Irritant • Contaminant • Difficult to Generalize Even at State Level if a State Uses a Strict Interpretation or a
Liberal Interpretation o If a Product is Commonly Known to Be Used in a Business Operation, Courts
Might Be Reluctant to Invoke a Strict Interpretation Even if They Have Done so in the Past
• Reasonable Expectation Argument o Some Courts Completely Reject the “Reasonable Expectation Argument”
• Websites That List Court Cases By Substance and By State Whether or Not Such Substance is Deemed a Pollutant in a Pollution Exclusion
• Litigation
Discharge, Dispersal, Release or Escape
Indiana Pollution Coverage
• Flexdar, Inc. o Implications of Flexdar
The Bad The Good
• Pollutants Definition Appendix
• Sources • Other Good Websites
Questions & Answers
Pollution exclusion: Does it exclude too much or too little?
GERALD DENEEN, NAMIC COMMERCIAL LINES SEMINAR, FEB 2013
GERALD DENEEN | NAMIC COMMERCIAL LINES SEMINAR | FEB 2013
ISO pollution exclusion history
Sudden and Accidental
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In response to the legal and social environment, ISO created a pollution exclusion endorsement that became part of the ir 1973 CGL form
1973 ISO Comprehensive General Liability Policy
– This insurance does not apply to bodily injury or property damage aris ing out of the discharge, dispersal, re lease , or escape of smoke, vapor, soot, fumes, acids , alkalis , toxic chemicals , liquids or gases , waste materials or other irritants , contaminants , or pollutants into or upon the land, the atmosphere or any water course or body of water; but this eexclusion does not apply if such discharge , dispersal, re lease or escape is sudden and accidental.
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What does sudden and accidental mean?
– Not a defined term
– Courts determine it
– If a word has multiple acceptable meanings, the term could be ambiguous.
– Ambiguities are generally, if not always, construed against the insurer
– What is ambiguous is up to personal judgment
– Courts interpreted "sudden and accidental" differently
– Some courts said found coverage because one reasonable interpretation was sudden = unexpected and accidental = unintended. Other courts said it was unambiguous and found no coverage based on the meaning of sudden and accidental to mean "unexpected, unintended and abrupt"
– Requiring abruptness would e liminate coverage for gradual pollution
– See Charter Oil v American Employers No.94-7175 (D.C. Circuit 1995) and Sunbeam v Liberty Mutual 1001 WL 1249260 (PA. 10/ 19/ 01)
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ISO pollution exclusion his tory
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Implications if gradual pollution is covered with 1973 wording
– Multiple policy limits for same pollution incident
– No aggregate limit applied to ISO policies pre-19 8 6 edition dates
– Continuous trigger could mean an unlimitedpolicy limit because it could mean unlimitednumber of occurrences
– No effective way to limit coverage tosudden and accidental events
– Financial catastrophe for insurers insteadof polluters
– Many insurance profess ionals believed gradual pollution exposure is uninsurable88
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Takeaways from sudden and accidental judicial his tory
– Courts interpret same policy language with same facts differently
– There is a reason there is an odd number of Justices on a court
– Uncertainty factor
– Certainty doesn't happen until s tate Supreme Court interprets language• Lengthy process
– When courts interpret insurancepolicies the way insurers didn't intendit could means lots of policies issued cover exposures insurers didn’t cost for• Current s tatus in Indiana for many
insurers
– State Supreme Courts sometimes (rare ly) overrule themselves
– Stare decis is (Latin for "Let the decis ion s tand")
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Resource Conservation and Recovery Act of 1976
– Amended the Solid Waste Disposal Act, established regulations to manage the generation, transport, treatment, s torage, and disposal of hazardous wastes while s imultaneously ensuring the protection of human health and the environment
– Focused on hazardous waste disposal s ites in operation
Comprehensive Environmental Response , Compensation and Liability Act (CERCLA) of 19 8 0
– Established a federal "Superfund" to clean up uncontrolled or abandoned hazardous waste s ites as well as accidents , spills , and other emergency re leases of pollutants and contaminants into the environment.
– Focused on hazardous waste disposal s ites that were contaminated in the past
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RCRA & CERCLA statutes
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Comprehensive Environmental Response , Compensation and Liability Act (CERCLA) of 19 8 0
– Anyone who had any involvement with a hazardous waste s ite designated by CERCLA is considered a potential responsible party (PRP)—you didn't have to be the owner of the waste s ite to be a PRP. The Federal Government billed PRPs for their share of the remediation cost for a designated hazardous waste s ite a/ k/ a Superfund s ite . These payments to the government went into a "Superfund" to pay for the remediation at all the designated Superfund s ites . These Superfund s ites could be private ly owned as well as publicly owned
– Insurance questions
– Were PRP required payments required by CERCLA covered by a CGL?
– For the owner of the designated hazardous waste cite under CERCLA or RCRA, was the cost of the government ordered clean-up covered by a CGL policy?
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RCRA and CERCLA statutes address onsite pollution and/ or government fines or orders to pay for clean-up of a designated hazardous waste s ite .
– Many insurers contend neither were intended to be covered under a CGL
Potential Responsible Parties le tte rs were government fines or orders
– Insurance policies cover damages that an insured is legally obligated to pay
– Damages : Monetary compensation that is awarded by a court in a civil action to an individual who has been injured through the wrongful conduct of another party http:/ / legal-dictionary.thefreedictionary.com/ damages.
– PRP payment requirements are not civil damages , but represent the cost to comply with a government order (equitable injunction) to pay for remediation of a hazardous waste s ite .• Pro-policyholder courts held that the undefined word "damages" in the
1973 insuring agreement should be given its plain, ordinary meaning as being costs the insured must pay to satisfy any kind of legal obligation, including pollution response costs .
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RCRA & CERCLA statutes
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Owned Property Exclusion (many insurers be lieved this should have e liminated re imbursement to any insured for any government ordered clean-up of a hazardous waste s ite owned by an insured)
– This insurance does not apply to “property damage” to property owned or occupied by or rented to the insured
– Some courts said:
– The government has sovereign interest in all property, so property is not owned just by the named insured. The insured's claim is not for property damage to its own property, but rather for damage to a third party --namely, the government -- which, as sovereign, has an independent interest in all natural resources , and
– EPA is not bringing environmental suits to restore defendants ' land for defendants ' benefit. Instead, the suit is brought on behalf of a third party -- the public. The policy provides third-party coverage
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ISO pollution exclusion history
Response to CERCLA and RCRA
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Against this backdrop, ISO responded with an endorsement to the 1973 CGL policy that was intended to remove all doubt that there was no coverage for pollution
– GL 21 3 3 was the endorsement thatcontained the Absolute Pollution Exclusion that was later incorporatedinto the ISO 19 8 6 CommercialGeneral Liability Policy
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(1 )“Bodily injury” or “property damage” aris ing out of the actual, alleged or threatened discharge, dispersal, re lease or escape of pollutants :(a) At or from premises you own, rent or occupy;(b) At or from any s ite or location used by or for you or others for the handling, s torage,
disposal, process ing or treatment of waste ;(c) Which are at any time transported, handled, s tored, treated, disposed of, or
processed as waste by or for you or any person or organization for whom you may be legally responsible ; or
(d) At or from any s ite or location on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations:(i) if the pollutants are brought on or to the s ite or location in connection with such
operations; or(ii) if the operations "are to test for, monitor, clean up, remove, contain, treat, detoxify
or neutralize the pollutants .(2 ) Any loss , cost, or expense aris ing out of any governmental direction or request that you
test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants . Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids , alkalis , chemicals and waste . Waste includes materials to be recycled, reconditioned or reclaimed.
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ISO pollution exclusion his tory
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Paragraph (2 ) addressed or excluded PRP financial and legal requirements
ISO has issued several endorsements to the pollution exclusion and has introduced different vers ions over the years that provide some "givebacks".
– See HOW ABSOLUTE IS THE ABSOLUTE POLLUTION EXCLUSION? by Cambridge Property & Casualty http:/ / www.cambridge-pc.com/ documents/ HowAbsolute istheAbsolutePollutionExclusion.pdf[website accessed February 13 , 2 013 ]
– Givebacks won't be the focus for the rest of this presentation. Underwriter needs to know what "givebacks" he or she is providing and he or she should be comfortable doing so for the premium received.
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Except for Indiana, almost all s tate courts have applied the Pollution Exclusion to environmental pollution, i.e ., discharge or waste or a by-product of a manufacturing process .
– A polluted waste s ite like those contemplated by RCRA or CERCLA
Courts have been extremely mixed when determining if the pollution exclusion excludes a specific substance in question.
– Courts often ask two key questions:
– Does the substance in question qualify as a "pollutant"
– Just about every substance that some people class ify as an "irritant or contaminant" can be a source of extensive litigation—and has been
– For the substance in question and claim in question, did such substance discharge, disperse , re lease or escape sufficiently enough to trigger the exclusion
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ISO pollution exclusion his tory
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Question underwriters should ask when writing a risk that uses toxic chemicals (question # 3 of ACORD 12 6 under General Information questions) in its business operations is not whether or not the pollution exclusion applies , but does the applicable s tate(s) recognize the toxic chemicals as a "pollutant" under the CGL policy.
– Much like the phrase "sudden and accidental" courts looking at virtually the same substance and the same business operation have reached different conclusions as to whether or not that same substance qualifies as a "pollutant"
– If you want to increase probability the toxic chemical is excluded use a Designated Product Exclusion Endorsement
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids , alkalis , chemicals and waste . Waste includes materials to be recycled, reconditioned or reclaimed.
– Almost any substance can fall into the category of irritant or contaminant
– Neither word is defined in policy so courts us a dictionary definition
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Is a substance a pollutant?
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Irritant (Merriam-Webster Dictionary) – causing irritation; specifically:: tending to produce physical irritation
Contaminant (Merriam-Webster Dictionary)
– something that contaminates or makes to makes something unfit for use by the introduction of unwholesome or undesirable e lements
While both definitions above might not be cited in a case , many have used s imilar definitions .
– Some courts have found them to be unambiguous.
– These courts take a liberal interpretation and apply it to all sorts of substances such as mold, asbestos , carbon monoxide, etc.
– Other courts ruled that if "pollutants” is given its usual connotation, and if the terms “irritant” and “contaminant” are read in the context of how they are used in the policy, that is , describing “pollutants ,” the absolute pollution exclusion can be interpreted to apply only to injury or damage caused by what is commonly considered environmental pollution. See AUTO OWNERS INSURANCE COMPANY v. REED No. A07A0338 Ga. Ct. of Appeals 2007 http:/ / caselaw.findlaw.com/ ga-court-of-appeals/ 1262977.html . This is a s trict interpretation.
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Difficult to generalize even at s tate level if a s tate uses a strict interpretation or a liberal interpretation.
– Different policy wording ruled on prior cases
– Different facts
– Different judges
– Substances could be different.
If a product is commonly known to be used in a business operation, courts might be re luctant to invoke a s trict interpretation even if they have done so in the past
– See Hastings Mut. Ins. Co. v. Safety King, Inc., 778 N.W.2d 275 (Mich. 2009),
– An antimicrobial pesticide , triclosan, was not found to be a pollutant, but the court went further and determined that it is common knowledge deodorizing and sanitizing agents are used by air duct cleaning companies and it is reasonable for such a company to expect coverage for damage claims aris ing out of the use of deodorizing and sanitizing agents .
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Is a substance a pollutant?
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Reasonable expectation argument in Hastings is s imilar to argument made in Indiana's American States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind. 1996) Supreme Court case http:/ / www.leagle .com/ xmlResult.aspx?xmldoc=19 9 616 076 6 2 NE2 d94 5 _115 8 6 .xml&docbase=CSLWAR2 -19 8 6 -2 0 0 6 [website accessed February 13 , 2 013 ]
– "If a garage policy is intended to excludecoverage for damage caused by theleakage of gasoline , the language of thecontract must be explicit" presumablybecause the insured would havereasonable expectation of coverage.The court was "particularly troubled bythe interpretation offered by AmericanStates , as it makes it appear that Kigerwas sold a policy that provided no coverage for a large segment of the gas s tation's business operations ."
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What makes the issue so difficult is that some courts complete ly re ject the "reasonable expectation argument"
– See Devcon Int'l Corp. v. Reliance Ins . Co., 6 0 9 F.3 d 214 (3 d Cir. 2 010 ), http:/ / caselaw.findlaw.com/ us-3 rd-circuit/ 15 2 6 64 8 .html discuss ion by J . Kent Holland, J r. in his December 2 010 IRMI article : CGL Pollution Exclusion Applies to Dust and Diesel Fumes http:/ / www.irmi.com/ expert/ articles/ 2010/ holland12-insurance-law-environmental.aspx [website accessed February 13, 2013]
– A cement company was sued by a group of homeowners alleging that, during construction of a nearby airport, the company generated large quantities of dust and exhaust fumes. The plaintiffs in the personal injury case claimed that the dust contaminated the homeowners ' drinking water and cis terns and caused breathing disorders , which led to other "unspecified physical, emotional, and psychological damage."
– The insured argued that it reasonably believed its policy would provide coverage for construction-re lated harms such as those caused by dust and engine fumes, and it urged the court to extend coverage under the doctrine of reasonable expectations .
– The court re jected the insured's argument. Limited impact because the Federal Court was interpreting Virgin Is land law
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Is a substance a pollutant?
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Websites that lis t court cases by substance and by s tate whether or not such substance is deemed a pollutant in a pollution exclusion. NNOTE: THE WWORDING OF THE POLLUTION EXCLUSION IN QUESTION COULD BE DIFFERENT THAN ISO'S ABSOLUTE POLLUTION EXCLUSION!– What is a Pollutant in the Context of the Application of the Absolute and Total
Pollution Exclusions? by Helen A. Boyer, Laura J . Hawes and Laura L. Edwards of Cozen O'Connor http:/ / www.cozen.com/ admin/ files / publications/ PollutantExclusion.pdf [website accessed February 13 , 2 013 ]
– Analysis Of Selected Absolute Pollution Exclusion Cases by Linda B. Foster and Patricia A. Murphy of WEISSMAN, NOWACK, CURRY & WILCO, P.C. http:/ / www.wncwlaw.com/ services/ insurance/ absolute_pollution_exclusion.cfm[website accessed February 13 , 2 013 ]
– CGL ABSOLUTE POLLUTION EXCLUSION Applying the Absolute Pollution Exclusion in the ISO CGL Form by Jonathan T. Viner of BATES & CAREY LLP http:/ / chinesedrywallblog.com/ wp-content/ uploads/ 2 0 0 9 / 0 4 / pollution.pdf[website accessed February 13 , 2 013 ]
– ISO circular # GLP-2 0 0 5 -0 0 3 Pollution Exclusion - Multis tate Review Of Past Court Decis ions April 2 6 , 2 0 0 5
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Expect litigation to continue . Randy Maniloff in his 2 0 0 3 article : Happy Birthday! The absolute pollution exclusion turns 17 this year posted on NAMIC's website http:/ / www.namic.org/ pcimagazine/ 0 3 07 0 8 / birthday.aspgave "Five Reasons Why There is No End in Sight to the Litigation". 10 years later he was proven right!
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“Bodily injury” or “property damage” aris ing out of the actual, alleged or threatened discharge , dispersal, re lease or escape of pollutants
– Even if a substance is deemed a pollutant, pollution exclusion is triggered only if it is discharged, dispersed, re leased or escaped.
– For substances like mold, asbestos , s ilica and lead this is critical if there is an earlier court ruling that liberally applies the definition of pollutant so these substances are considered pollutants
– Alabama Supreme Court in Porterfie ld v. Audubon Indemnity Company and the Pennsylvania Supreme Court in Lititz Mutual Ins . Co. v. Steely ruled that the pollution exclusion didn't apply to imperceptible movement of lead paint even though they determined that lead paint qualified as a pollutant.
– Numerous courts , in explaining their rationale for limiting the absolute pollution exclusion to “environmental” pollution, have concluded that the terms “discharge,” “dispersal,” “re lease” or “escape” are environmental “terms of art.”
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Discharge, dispersal, re lease or escape
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Flexdar, Inc. (“Flexdar”) manufactured rubber s tamps and printing plates at its Indianapolis facility (the “Site”) from late 19 94 or early 19 9 5 through 2 0 0 3 . Flexdar’s manufacturing process used a chemical solvent called trichloroethylene (“TCE”). In late 2 0 0 3 and early 2 0 0 4 , Flexdardiscovered that TCE was present in the soil and groundwater both on and off the Site . The Indiana Department of Environmental Management (“IDEM”) informed Flexdar that Flexdar would be liable for the costs of cleanup.
– Almost all observers would describe this scenario as a traditional environmental pollution claim(s) which almost all observers said ISO's Absolute Pollution Exclusion (APE) excluded.
– State Auto. Mut. Ins . Co. v. Flexdar, Inc., http:/ / www.in.gov/ judiciary/ opinions/ pdf/ 0 3 2 212 01 rdr.pdf [website
� � �2 2 , 2 012 ) affirmed Kiger such that a substance has to be specifically s tated in the pollution exclusion in order for the exclusion to be valid in Indiana
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Indiana pollution coverage
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Implications of Flexdar– The bad:
– Very few CGL insurance policies don't excludegradual traditional environmental pollutionbecause they didn't lis t any specific substances in their pollution exclusion
– Many companies ' environmentalliability loss reserves have been increasedor will increase because of this decis ion.
– The good:
– The Indiana Supreme Court gave insurers anunusual legal "gift" by ruling on a policy exclusion that wasn't even part of the case . The court said the following State Auto exclusion was unambiguous and therefore effectively excludes a lot of substances that most insurers would class ify as a pollutant
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“Pollutants” mean[s] any solid, liquid, gaseous, bacterial, fungal, e lectromagnetic, thermal or other substance that can be toxic or hazardous, cause irritation to animals or persons and/ or cause contamination to property and the environment including smoke, vapor, soot, fumes, acids , alkalis , chemicals , and waste . Specific examples identified as pollutants include, but are not limited to, diesel, kerosene, and other fuel oils . . . carbon monoxide, and other exhaust gases . . . mineral spirits , and other solvents . . . te trachloroethylene , perchloroethylene (PERC), trichloroethylene (TCE), methylene chloroform, and other dry cleaning chemicals . . . chlorofluorocarbons, chlorinated hydrocarbons, adhesives , pesticides , insecticides . . . and all substances specifically lis ted, identified, or described by one or more of the following references: CComprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Priority List Hazardous Substances (19 97 and all subsequent editions), Agency for Toxic Substances And Disease Registry ToxFAQs™, and/ or U.S. Environmental Protection Agency EMCI Chemical References Complete Index
Would s trongly consider incorporating this verbiage as a mandatory pollution exclusion endorsement in Indiana
– Gives claims examiners and underwriters great guidance for non-environmental liability claims and exposures going forward where the pollution exclusion could be invoked.
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Indiana pollution coverage
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Sources
– Slide 4 : American Lung Association Fighting for Air Milestones in Air Pollution History www.llung.org/ assets/ documents/ 2009_CLEAN_AAIR_MMILESTONES.doc[webiste accessed February 12 , 2 013 ]
– Slide 4 : 19 6 5 paper entitled "Contaminated and Natural Lead Environments of Man," by Clair Patterson. http:/ / www.nap.edu/ openbook.php?record_id=6 2 01 &page=2 6 6 [website accessed February 12 , 2 013 ]
– Slide 9 : See South Carolina Supreme Court cases: Crossman Communities of North Carolina, Inc. v. Harleysville Mutual Insurance Co; L-J, Inc. v. Bituminous Fire & Marine Ins. Co.; and Auto Owners Ins. Co., Inc. v. Newman. See Michigan Supreme Court case: McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010)
– Slides 11 and 12 : Small Business Environmental Home Page http:/ / www.smallbiz-enviroweb.org/ Compliance/ MajorLaws.aspx# RCRA[website accessed February 12 , 2 013 ]
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Appendix
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Sources
– Slide 13 : "Damages" under a 1973 CGL Insurance Policy April 2 0 0 8 by Rich Scis lowski. IRMI's Free Commercial Liability Commentary Environmental Section. http:/ / www.irmi.com/ expert/ articles / 2 0 0 8 / scis lowski0 4 .aspx[website accessed February 13 , 2 013 ]
– Slide 14 : See cases cited in “The Owned Property Exclusion and Environmental Insurance Claims” by Paul M. Zieff. Mr. Zieff’s article was originally published in Environmental Claims Journal, Vol. 4 , No. 1 / Autumn 19 91 and was reproduced with permiss ion on the Rogers Joseph O’Donnell & Phillip’s law firm’s website . See On-Site Soil Contamination section of website . http:/ / www.rjop.com/ publish3 8 .htm [website accessed February 13 , 2 013 ].
– Slide 16 . HOW ABSOLUTE IS THE ABSOLUTE POLLUTION EXCLUSION? by Cambridge Property & Casualty http:/ / www.cambridge-pc.com/ documents / HowAbsolute is theAbsolutePollutionExclusion.pdf [website accessed February 13 , 2 013 ] and IRMI article cited above for s lide 13 .
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Sources
– Slide 19 : "What is a Pollutant in the Context of the Application of the Absolute and Total Pollution Exclusions? by Helen A. Boyer, Laura J . Hawes and Laura L. Edwards of Cozen O'Connor http:/ / www.cozen.com/ admin/ files / publications/ PollutantExclusion.pdf [website accessed February 13 , 2 013 ]
– Slide 2 9 . See Randy Maniloff's 2 0 0 3 article : Happy Birthday! The absolute pollution exclusion turns 17 this year posted on NAMIC's website http:/ / www.namic.org/ pcimagazine/ 0 3 07 0 8 / birthday.asp
– Slides 31 - 3 3 . See Indiana Supreme Court Slams The Flexdar Shut On Any Chance To Change Kiger March 2 2 , 2 012 , edition of Binding Authority by Randy Maniloff of White and Williams LLP http:/ / www.whiteandwilliams.com/ assets / htmldocuments / Indiana%2 0 Supreme%2 0 Court%2 0 Slams%2 0 The%2 0 Flexdar%2 0 Shut%2 0 On%2 0 Any%2 0 Chance%2 0 To%2 0 Change%2 0 Kiger.pdf [website accessed February 13 , 2 013 ]
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Appendix
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Other good websites on this topic:
Posner On The Pollution Exclusion: Could It Have Been The Most Important Decision Ever?by Randy Maniloff of White and Williams, LLP http:/ / www.lexisnexis .com/ community/ insurancelaw/ blogs/ exclusions/archive/ 2 012 / 0 9 / 3 0 / law-insurance-underwriting-judge-posner-pollution-exclusion-most-important-decision-ever.aspx [website accessed February 13 , 2 013 ]
Pollution exclusion minefield by By Donald S. Malecki, CPCU in January 2 0 0 9 Rough Notes Property & Casualty Magazine http:/ / www.roughnotes .com/ rnmagazine/ 2 0 0 9 / january0 9 / 01 p0 34 .htm[website accessed February 14 , 2 013 ]
Mold and Pollution: When is a contaminant not a contaminant? by Jacqueline M. Jauregui of Sedgwick, Detert, Moran and Arnold in its Los Angeles office . http:/ / www.thefederation.org/ documents/ Jauregui-W0 3 .htm [website accessed February 14 , 2 013 ]
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Other good websites on this topic:
Alaska Supreme Court Enforces Pollution Exclusion by Laura A. Foogan nand Benjamin Theisman of Wiley Rein LLP July 2 0 0 8 | Law Journal Newslettershttp:/ / www.wileyre in.com/ publications.cfm?sp=articles&id=777 [website accessed February 13 , 2 013 ]
Pollution Exclusion in CGL Policies Navigating Scope of the Exclusion in Light of Differing Court Interpretations 3 presentations hosted by Strafford. Slides from a July12 , 2 012 , webinar. Presenters were
– Carl A. Salisbury, Partner, Kilpatrick Townsend & Stockton, New York
– Louis A. Chiafullo, Partner, McCarter & English, Newark, N.J .
– Jonathan T. Viner, Partner, Bates Carey Nicolaides, Chicago
Although all the information used was taken from re liable sources , Swiss Re does not accept any responsibility for the accuracy or comprehensiveness of the details given. All liability for the accuracy and completeness thereof or for any damage resulting from the use of the information contained in this presentation is expressly excluded. Under no circumstances shall Swiss Re or its Group companies be liable for any financial and/ or consequential loss re lating to this presentation.
