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GEORGIA SUPREME COURT UPHOLDS CGL POLLUTION EXCLUSION IN CARBON MONOXIDE POISONING CASE

Posted by H. Lee Pruett

The Georgia Supreme Court recently considered whether the pollution exclusion in a commercial general liability (CGL) policy applied to a claim of carbon monoxide poisoning. In Reed v. Auto-Owners Insurance Co., Case No. S07G1768 (Ga. S. Ct., Sept. 22, 2008), the plaintiff sued her landlord for negligent maintenance of the plaintiff’s house which allegedly caused carbon monoxide poisoning to the plaintiff. The landlord’s insurer, Auto-Owners, entered a defense under a reservation of rights and filed a declaratory judgment action in which it sought a judgment of no coverage based on the pollution exclusion of the policy. The Superior Court of Butts County denied Auto-Owner’s motion for summary judgment. The Court of Appeals reversed, however, and the Georgia Supreme Court affirmed the Court of Appeals’ ruling.

The policy provision at issue excludes coverage for bodily injury or property damage resulting from the discharge of pollutants at or from the insured premises. The Court rejected the argument that the exclusion is ambiguous and so should be construed in favor of the insured. The Court found that the exclusion’s definition of a “pollutant” includes any “irritant or contaminant, including. . .fumes.” The majority held that the plain language of the policy did not limit the exclusion to “what is commonly or traditionally considered environmental pollution.” Thus, the Court affirmed a more broad application of the CGL pollution exclusion.