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Patricia O'Connell
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Laura Foggan Comments on Eleventh Circuit Pollution Exclusion Case

August 15, 2012

Laura Foggan, chair of Wiley Rein's Insurance Appellate Group, was interviewed by Insurance Law360 for a story on a pending dispute in the United States Court of Appeals for the Eleventh Circuit concerning whether bacteria and other living organisms constitute pollutants within widely-used pollution exclusions in liability insurance policies.

The case concerns insurance coverage for an underlying wrongful death suit brought after a man died from Legionnaires' disease after inhaling bacteria while in a hot tub at a Quality Suites hotel in Orlando.  Insurance Law360 reported that a federal district court in Florida ruled that the insurance company “had a duty to defend and indemnify the hotel defendants, partly because its pollution exclusion did not bar coverage. According to the lower court, living organisms did not meet the pollution exclusion’s characterization of pollutants as a solid, liquid, gaseous or thermal substances.”

Ms. Foggan told Law360 that Florida courts already had squarely rejected the idea that only “traditional” pollutants fall under pollution exclusions.  “If the Eleventh Circuit weighs in and finds that there is no coverage, it will really just reinforce the strength of Florida law and the application of the pollution exclusion on the terms it's written on and maybe help to put aside a tendency to continue litigating questions that probably should be settled,” said Ms. Foggan.  She added that “the purpose of the [contract's pollution exclusion] language is to show how broad the exclusion is.  It doesn’t matter what form the pollutant takes.”