The Georgia Supreme Court has held that an absolute pollution exclusion in a CGL policy bars coverage for injuries due to lead-based paint ingestion. Georgia Farm Bureau Mut. Ins. Co. v. Smith, 784 S.E.2d 422 (Ga. 2016).
A tenant sued her landlord for injuries she sustained as a result of ingesting lead from lead-based paint in a rental house. The landlord sought coverage under his CGL policy, and the insurer sought a declaratory judgment that it had no duty to defend or indemnify because coverage for the underlying claim was excluded by an absolute pollution exclusion in the policy. The exclusion provided that the policy did not cover bodily injury “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants.’” The term “pollutants” was defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”
The trial court granted summary judgment to the insurer, finding that lead-based paint unambiguously falls within the policy’s definition of “pollutant” as a contaminant. The insured and underlying plaintiff appealed. The appellate court reversed, noting a split among courts in other jurisdictions that have dealt with this issue and agreeing with those courts that have enforced similar pollution exclusions only in instances of so-called “industrial pollution.” The insurer appealed.
The Georgia Supreme Court reversed. It found that Georgia courts had repeatedly applied similar pollution exclusions in circumstances other than traditional industrial pollution and had not required insurers to explicitly name every pollutant for the exclusion to be enforceable. The Supreme Court held that lead-based paint unambiguously qualifies as a “pollutant” such that the absolute pollution exclusion bars coverage for injuries caused by lead-based paint.