Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
By Peter Hayes
March 21 — A pollution exclusion relieves an insurer of the duty to defend claims that a child ingested lead-based paint in a rental property owned by the policyholder, the Georgia Supreme Court ruled March 21.
Lead-based paint unambiguously qualifies as an excluded “pollutant” under an absolute pollution exclusion in the policy, the court ruled in a case of first impression.
“Today’s decision follows a majority view and trend,” Laura Foggan with Wiley Rein LLP in Washington told Bloomberg BNA March 21. Foggan was of counsel to the Complex Insurance Claims Litigation Association as an amicus curiae in this appeal.
“I do think there is a clear trend in favor of enforcing the pollution exclusion as written, without any `traditional pollution' limitation,” she said. “As this court explained, there is no basis for such a limitation in the policy language and the exclusion has been applied to many substances and fact settings outside traditional hazardous waste cleanup.”
Counsel for the plaintiff Jonathan Johnson, with Jonathan W. Johnson LLC in Atlanta, however, said the decision is very unusual.
“In my research, only three states have adopted this approach with regard to lead paint, while 20 have gone the other way,” Johnson told Bloomberg BNA.
“It's a harsh ruling and out of line with other states, but it's consistent with the court's own precedent,” he said.
The exclusion bars coverage for bodily injury or property damage resulting from exposure to any “pollutant,” which it defines as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”
As a result, Georgia Farm Bureau Mutual Insurance Co. has no duty to defend Bobby Chupp against allegations by Amy Smith that her daughter suffered permanent injury from the ingestion of lead-based paint in the house she rented from Chupp, the court said.
The court cited its ruling in Reed v. Auto-Owners Ins. Co., 2008 BL 221797 (Ga. 2008), finding carbon monoxide gas to be a “pollutant.”
Reversing an appeals court ruling in favor of the policyholder, the court said “the contractual language of Chupp’s CGL policy unambiguously governs the factual scenario in this case. Accordingly, the court of appeals was required to simply apply the terms of the contract as written.”
Chief Justice Hugh P. Thompson wrote the unanimous opinion.
Jonathan W. Johnson LLC in Atlanta, Childers, Schlueter & Smith LLP in Atlanta and Turkheimer & Hadden, LLC in Atlanta represented the plaintiffs.
James Bates Brannan Groover LLP represented the insurer.
To contact the reporter on this story: Peter Hayes at email@example.com
To contact the editor responsible for this story: Jeffrey D. Koelemay at firstname.lastname@example.org
Full text of the opinion available at http://www.bloomberglaw.com/public/document/Ga_Farm_Bureau_Mut_Ins_Co_v_Smith_No_S15G1177_2016_BL_84790_Ga_Ma.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)