ELR Citation: ELR 20372
No(s). 87-8972 (11th Cir. Sep 29, 1989)

Relying on a state supreme court response to a certified question, the court denies an insurance company's motion for declaratory judgment of its obligation under a pollution exclusion clause of a comprehensive general liability policy. In an appendix to the court's decision, the Georgia Supreme Court holds that the policy affords liability coverage for environmental contamination from pollutant discharges over an extended time. The company denied coverage for cleanup costs of the insured's property that had been contaminated during contractual use as an industrial and chemical waste landfill. The court holds that the policy's exclusion for "sudden" pollutant discharges is capable of more than one interpretation and must therefore be construed in favor of the insured to mean "unexpected or unintended" instead of "abrupt." Moreover, to interpret the pollution exclusion as providing coverage for unintended discharges effectively eliminates coverage for damage resulting from intentional pollutant discharges. Coverage for unintended discharges does not encourage property owners to remain oblivious to pollution activities because current federal and state laws require waste treatment facilities to carry insurance for both short- and long-term environmental risks. That the company did not originally draft its policy to avoid potential liability cannot be construed to the detriment of the insured, which purchased a comprehensive general liability policy.

Counsel for Plaintiff-Appellant
David E. Hudson
Hull, Towill, Norman & Barnett
P.O. Box 1564, Trust Company Bank Bldg., 7th Fl., Augusta GA 30913
(404) 722-4481

Counsel for Defendants-Appellees
James A. Eichelberger
Neely & Player
Marquis Two, Ste. 2600, 285 Peachtree Center Ave., Atlanta GA 30303-1270
(404) 681-2600

Before RONEY, Chief Judge, HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge.

All the Justices concur, except Marshall, C.J., Bell and Hunt, J.J., who dissent.