"Contaminant" Clarified For Application Of Pollution Exclusion

Commercial Liability	Duty To Defend
Pollution Exclusion	Terms Definitions

A mother of two small children sued the owners and managers of an apartment building to recover damages allegedly suffered by the children as a result of lead poisoning. During an inspection, lead paint was verified on the interior and exterior surfaces of the premises. The insurer of the defendants sought a declaration as to whether it had a duty under its comprehensive general liability policy to provide defense or to indemnify

The pollution exclusion in the policy defined "pollutant" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste...." The trial court found nothing in this language suggesting lead in paint was a "pollutant" for which coverage was excluded and ordered the insurer to defend and indemnify its insureds.

The insurer, on appeal, argued that, although lead in paint was not specifically named in the definition of "pollutant" as a "contaminant" or "irritant," it fell within the meaning of the terms. Therefore, the exclusion was applicable.

The appeal court said: "There is simply no language in the exclusion provision from which to infer that the provision was drafted with a view toward limiting liability for lead paint-related injury." Upon reading the pertinent language, it was observed that an insured would expect to be covered. The terms "discharge," "dispersal" and the like, used in the pollution exclusion and associated with environmental concerns, made such a conclusion reasonable.

The trial court's judgment was affirmed in favor of the insureds and against the insurance company.

Atlantic Mutual Insurance Company, Plaintiff v. McFadden ET AL., Defendants. Massachusetts Supreme Judicial Court. July 14, 1992. 413 Mass. 90. CCH 1992 Fire and Casualty Cases, Paragraph 3876.