All Of A Sudden, It Was Not Excluded: A Recent Ruling On The Qualified Pollution Exclusion

The outcome of the decision of Aviva Insurance Co. of Canada v. Intact Insurance Company¹ should remind insurers that even though the insurance industry has taken steps to ensure that contemporary CGL policies contain wording that is characterized as the "absolute pollution exclusion," old wording, generally described as the "qualified pollution exclusion," can still come back to haunt them.

The outcome in Aviva v. Intact was well-reasoned, though perhaps frustrating for those who continue to wait patiently for a clear line of authority on the issue of whether the phrase "sudden and accidental" has a temporal component. Although Justice Cavanagh, who presided over the Aviva case, declined to address this issue, he did provide some clear directives in the event insurers are faced with a coverage application which calls for an interpretation of the qualified pollution exclusion, and namely the word "sudden."