Litigation over the “total” or “absolute” pollution exclusion has grown over the past several years. The exclusion typically precludes coverage for any claims resulting from “actual or threatened discharge, dispersal or release of any Pollutant.” “Pollutant” is often defined as any type of “irritant or contaminant,” including, among other things, smoke, soot, fumes, vapors and chemicals. Despite the seemingly straightforward language of the exclusion, courts are divided over its application.
On one side, some courts hold that the exclusion is unambiguous, is indeed absolute, and applies to any set of facts that comes within its terms. Other courts have concluded that the exclusion is ambiguous and does not apply where the pollution in question goes beyond “traditional” environmental pollution claims, e.g., landfill leaks and oil spills. Litigants and courts are now struggling with whether the exclusion also encompasses other types of claims that, on their face, would appear to fall within the exclusion’s definitions, e.g., lead paint, carbon monoxide poisoning and other toxic exposure claims (which some courts have deemed “non-traditional” pollution claims).
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