In James River Ins. Co. v. Ground Down Engineering, Inc., No. 07-13207 (11th Cir. August 20, 2008), the Eleventh Circuit Court of Appeals recently ruled that a Florida state appellate court erred by refusing to give effect to an absolute pollution exclusion in a professional liability policy. Based upon the policy’s pollution exclusion, the insurer sought a declaratory judgment that claims for remediation of construction debris and fuel tanks, which the insured engineering firm had failed to discover during an environmental site assessment, were not covered. The appellate court dismissed the declaratory judgment action, finding that the pollution exclusion did not apply because the insured had not “caused” the pollution. The 11th Circuit reversed, ruling that the claims clearly “arose out of” debris and waste materials that fell within the exclusion’s definition of “pollutants.” The Court wrote:
[W]e are bound by the plain language of the policy which 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 the exclusion applies regardless of whether the pollution results from conduct by the insured.