ELR Citation: ELR 20217
No(s). 07-13207 (11th Cir. Aug 20, 2008)

The Eleventh Circuit held an insurance company need not provide legal defense to its insured, an engineering firm, in an underlying lawsuit alleging that it negligently failed to discover construction debris and fuel tanks during an environmental site assessment. The firm argued that the pollution exclusion clause contained in its policy does not apply because the negligence at issue in the claim relates to improper performance of the environmental site assessment rather than negligently causing pollution. But the plain language of the policy states that the pollution exclusion applies regardless of whether the "cause for the injury or damage is the Insured's negligent hiring, [etc.] . . . or wrongful act." This language implies that the exclusion applies regardless of whether the pollution results from conduct by the insured. In addition, the construction debris at issue is a pollutant within the meaning of the policy exclusion. The court, therefore, vacated a lower court judgment dismissing the insurer's claim for a declaratory judgment.