The Authors

Robert CheslerAnderson Kill P.C.

A leading participant in the birth of modern insurance law in the early 1980s, Robert D. Chesler is a shareholder in Anderson Kill’s Newark office. He represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs.

Dennis J. ArteseAnderson Kill P.C.

Dennis Artese is a shareholder in the New York office of Anderson Kill. He is chair of the firm’s Climate Change and Disaster Recovery practice group and co-chair of the firm’s Construction Industry practice group. Dennis’s national practice concentrates on all types of insurance recovery litigation.

Jamie O'NeillAnderson Kill P.C.

Jamie O’Neill is an attorney in Anderson Kill’s New York office. She focuses her practice on insurance recovery, exclusively on behalf of policyholders.

The Use and Abuse of the Pollution Exclusion

The basic legal issue of what constitutes a pollutant or contaminant is
overlaid with fact issues. Policyholders will continue to be at risk
as courts in the 50 states apply pollution exclusions in fact patterns
that policyholders never expected.

Abstract:

Recent court decisions and ongoing cases have brought to the forefront the critical issue of the reach of pollution exclusions in insurance policies. Jurisdictions from South Dakota to Hawaii are redefining the scope of what constitutes a “pollutant,” with significant developments that affect coverage in cases that range from contaminated agricultural products to carbon monoxide poisoning and greenhouse gas emissions. The thread that brings these cases together is the age-old question of what constitutes a “pollutant”: Is the term limited to traditional environmental pollution, or should it be read more broadly to encompass other contaminants and non-environmental situations?

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