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Patricia O'Connell
Senior Communications Manager

Laura Foggan Discusses Pollution Exclusion Rulings That Favored Insurers in 2013

December 19, 2013

Laura A. Foggan, chair of Wiley Rein’s Insurance Appellate Group, was quoted in a December 17 Law360 article about the latest in a series of court rulings involving coverage exclusions for unusual losses caused by pollution.

The Wisconsin Court of Appeals ruled on December 11 that an insurance policy’s pollution exclusion does not apply to losses caused by cow manure that contaminated a local aquifer and water wells.  The article noted that prior Wisconsin Supreme Court rulings had sent mixed messages on the application of pollution exclusions in rulings addressing bat guano—a mixture of bat feces and urine—and carbon dioxide in an office building.

Commenting that most 2013 state high court and federal court of appeals rulings favored insurers, Ms. Foggan noted that four out of five federal appeals court cases dealing with the pollution exclusion in 2013 came out in favor of insurers.  “Looking at 2013, the courts were quite kind to insurers on the pollution exclusion,” she said.

In ruling on pollution exclusion disputes, courts should adhere strictly to the insurance policy language, Ms. Foggan said.  Courts shouldn’t rely on “made up rules” asking courts to consider a policyholder’s reasonable expectations or restricting the exclusion to traditional pollution contexts, she said.

“The insurers would say the core test is really just applying the policy language to the facts,” Ms. Foggan said. “Gasoline may be good, but when it’s in the wrong place, it’s acting as a pollutant, and that's what the exclusion is about.”