Source: http://www.constructionrisk.com, August 2017
By: Kent Holland
Where lead-based paint was ingested by a tenant’s child, the tenant sued her landlord for injuries allegedly sustained by the child. The landlord tendered the claim to its commercial general liability (CGL) insurer who, instead of defending the case, filed a declaratory judgment action seeking a determination that the pollution exclusion of the CGL policy barred coverage for the alleged injuries. The Owner held that, although not specifically listed in the pollution definition as a “pollutant,” lead-based paint is, in fact, a “pollutant” within the meaning of the policy. The policy’s pollution exclusion was, therefore, applicable, and the insurer had no duty to defend and indemnify the landlord. See Georgia Farm Bureau Mut. Ins. Co. v. Smith, 298 Ga. 716, 784 S.E.2d 422 (2016).
The terms of the CGL policy required the insurer “to pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’” … “only if: (1) the ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place ….” An occurrence is defined as “an accident.” Coverage was subject to exclusions, including the pollution exclusion, which provided that the insurance does not apply to “(1) ‘[b]odily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’: (a) [a]t or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.”…
School districts, the U.S. Marine Corps and Caltrans are among the public agencies and private companies that improperly shipped more than 160,000 tons of hazardous waste to an outdoor soil-recycling plant in Mecca that did not have a state permit to accept such waste, a Press-Enterprise analysis of 2009-2010 state data has found.
The shipments to the 10-acre Western Environmental Inc. plant, located on tribal land near the Salton Sea, violated state regulations that require those who create or dig up such waste to dispose of it at state-permitted facilities.
Residents of Mecca, a predominantly Hispanic farming community in the Coachella Valley, have complained to public agencies about strong odors from plant. They say the smell has made children and adults ill, sending some to the hospital. …