ELR Citation: ELR 20192
No(s). 04-10311 (5th Cir. Sep 19, 2005)

The court affirms a district court order holding that an insurer must indemnify a lead smelting company for cleanup costs and expenses resulting from lead pollution at the company's facility in West Dallas, Texas. Although the company entered into a tolling agreement with the U.S. Environmental Protection Agency without the insurer's consent, this breach of the insurance contract did not prejudice the insurer. The insurer, therefore, is not excused from its obligations to indemnify the company with respect to lead pollution. Exclusion 7(a) of the policy, however, bars coverage of the company's liability resulting from battery chips that were used as fill in residents' driveways and yards. The exclusion bars coverage with respect to polluted "things" that have been transferred to third parties.