Reason and pollution: Correctly construing the ``absolute`` exclusion in context and in accord with its purpose and party expectations
- Florida State Univ. Coll. of Law, Tallahassee, FL (United States)
Responding to the flurry of environmental coverage litigation over the application of the sudden and accidental pollution exclusion, the insurance industry during the mid-1980s largely adopted new standard pollution exclusion language for commercial general liability (CGL) policies. Since the mid-1980s, the standard form CGL has included the so-called absolute pollution exclusion. The broad language used in the current pollution exclusion has, like its predecessor, spurred heated litigation as to the meaning and application of the exclusion. To date, courts found the exclusion applicable to preclude coverage for what might be termed classic pollution claims involving widespread discharge of contaminants giving rise to claims of environmental degradation. Courts have divided roughly equally, however, regarding the applicability of the exclusion to so-called toxic torts or other claims in which chemicals or irritants are involved. Instead of reasonably reading the insurance policy in whole and in context, they have focused myopically and hyperliterally on the text of the exclusion to attempt to deny the sorts of claims that had traditionally been covered under the basic CGL. Although text is of course an important component of contract doctrine, so too is the purpose of the contract, the context of its execution and application, and the specific intent, if any, of the parties, and the objectively reasonable expectations of the parties. These factors not only refute the hyperliteral dictionary-supremacist method championed by insurers but also demand a constrained common sense reading of the exclusion.
- OSTI ID:
- 316113
- Journal Information:
- Tort and Insurance Law Journal, Journal Name: Tort and Insurance Law Journal Journal Issue: 1 Vol. 34; ISSN TILJED; ISSN 0885-856X
- Country of Publication:
- United States
- Language:
- English
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