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Is lead paint a pollutant? That question led the Alabama Supreme Court to sift through more than 100 appellate rulings from across the nation searching for an answer. The court’s quest was prompted by a certified question from an Alabama federal court judge in a lead-paint poisoning case filed by a Montgomery, Ala., mother of two whose daughters are allegedly mentally retarded because of exposure to ambient lead-paint chips and dust in a public housing project. Porterfield v. Audubon Indemnity Co., No. 1010894. Parsing the law to help decide an insurance-coverage dispute, the court concluded that lead paint is indeed a pollutant. Its ruling does not necessarily exonerate a municipal housing authority’s insurance carrier, which had sought to enforce an absolute pollution exclusion clause contained in a liability policy and to deny coverage of the underlying claim. The mother, Janice Denice Porterfield, had sued the Montgomery housing authority after it became apparent that her daughters, Yolanda and Mary, had become developmentally disabled from lead poisoning. Also sued were three defendants who in 1991 had contracted with the authority to remove lead paint from the public housing where the Porterfields live. That case was settled for $1.6 million. The Porterfields’ lead counsel, James A. Harris III, explained that $640,000 has been used to purchase an annuity that will fund a special needs trust for the girls. The remaining $1 million was expected to come from the housing authority’s insurance carrier, Audubon Indemnity. But citing the exclusionary language contained in the policy, the carrier rejected the claim, forcing Porterfield to sue. Mickey McInnish, then general counsel to the housing authority, now its executive director, said that the insurer never even formally rejected the authority’s claim. “Audubon never responded in any manner,” he said. This despite twice previously honoring lead-paint claims arising under the same policy that were filed by residents of the same housing complex. Audubon’s lead counsel on the Porterfields’ coverage claim, Hal L. Ferguson and John W. Dodson of Birmingham, Ala.’s Ferguson, Frost & Dodson, could not be reached for comment before press time. Lacking clear guiding precedent, U.S. District Judge Ira DeMent asked the state supreme court: “Does the pollution exclusion clause contained in Audubon’s comprehensive general liability policy preclude coverage to its insured for liability for injuries allegedly caused by the ingestion of lead contained in paint, blinds, water, pipes and soil on the premises operated by the insured?” Perusing the available precedent, Alabama’s high court was principally guided by two decisions, the Pennsylvania Supreme Court’s 2001 ruling in Lititz Mutual Ins. Co. v. Steely, 785 A.2d 575, and a 1997 New York federal court ruling in Sphere Drake Ins. Co. v. Y.L. Realty Co., 990 F. Supp. 240. Applying the reasoning used by those tribunals, Alabama’s top court determined that lead is a pollutant, but that the clause was only intended to exclude claims arising from the “discharge, dispersal, release or escape” of pollutants. Quoting Sphere Drake, it said, “These terms do not ordinarily encompass the type of movement associated with lead paint poisoning … rather lead paint poisoning results from inhalation and ingestion of paint that has flaked over time.” The court stopped short of finding that Audubon was liable for the $1 million claim. That case will be tried before DeMent sometime next year, Harris said. He added that Audubon has already filed a motion for reconsideration.

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