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“The ‘Irritating’ Differences in Applications of the Pollution Exclusion Across the Nation: A National Overview of Pollution Exclusion Litigation,” Westlaw Journal Insurance Coverage

“On a near daily basis,” Thomas F. Segalla and James D. Macri write in Westlaw Journal Insurance Coverage, courts across the country “grapple” with applying the insurance policy pollution exclusion and its exceptions to different scenarios. “Yet,” they explain, even when courts face strikingly similar fact patterns, decisions have varied widely. “When determining whether a substance qualifies as a pollutant, whether the pollution exclusion has been triggered, and whether any exception to the exclusion applies, a number of conflicting opinions result,” they write.

Tom and James go on to provide an overview of 21 recent court decisions taken from around the United States. They examine the different applications of the pollution exclusion in each, and provide condensed “practice notes” for each state.

This is the third consecutive year that Tom and James have tracked important decisions involving the pollution exclusion across the country for Westlaw Journal Insurance Coverage. “Insurers and their counsel need to understand the varying applications so they can implement, interpret and apply the proper policy exclusions and defend against claims should a coverage dispute arise,” they write. “Insurers and their counsel also need to understand how courts are reacting to recent developments by insurance companies in response to long standing case law.”

Tom, a founding partner of the firm, is an internationally recognized authority on insurance, reinsurance, and bad faith. He is the editor of Couch on Insurance 3d and the Reinsurance Professional’s Deskbook published by Thomson Reuters and DRI, as well as immediate past president of the American College of Coverage and Extracontractual Counsel. James is an associate in the firm’s Global Insurance Services and Business and Commercial Practice Groups, and a frequent writer on a wide range of legal topics for firm and industry publications.

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