Insurers and insureds in Florida should check their liability insurance policies for absolute pollution exclusion language. If present, and if pollution liability is a possibility, insureds should explore the purchase of pollution liability coverage.
Earlier this year, the United States Court of Appeals for the 11th Circuit had occasion to interpret an absolute pollution exclusion clause under Florida law. Markel International Insurance Co. v. Florida West Covered RV & Boat Storage LLC (No. 11-11511, 8/1/11).
The claim was filed by the renter of a storage unit who claimed he contracted a bacterial infection when he had to wade through roadwork millings in flood water to retrieve his personal property from a storage unit. The storage company sought defense and indemnity from Markel International Insurance Company, which then filed a declaratory judgment action. The district court granted the insurer summary judgment under the absolute pollution exclusion.
The Eleventh Circuit affirmed, ruling that the district court correctly used the dictionary definitions of the terms “irritant” and “contaminant” used in the absolute pollution exclusion clause, and finding that a product that causes no harm when used properly may still be classified as a pollutant under the exclusion when used improperly.