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ARTICLE · 04 JULY 2013

Absolute Pollution Exclusions Aren’t Always Absolute

Jones Day
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Complaints alleging harm from environmental contamination should be reviewed carefully from a coverage perspective, even where modern vintage CGL policies are involved, since absolute pollution exclusions aren't always absolute.

United StatesInsurance
Daven Lowhurst
Daven Lowhurst
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A recent decision by the Eighth Circuit Court of Appeals confirms that when it comes to coverage for environmental contamination claims, the so-called "absolute" pollution exclusions aren't always absolute.  (The Doe Run Resources Corp. v. Lexington Ins. Co., 2013 BL 155849 (8th Cir., June 13, 2013).) 

 Doe Run Resources is the largest lead producer in the Western Hemisphere.  It operates facilities in Missouri that extract and crush lead ore to make lead concentrate.  The leftover material, called chat, and tailings are deposited by Doe Run into a mammoth 500 acre waste pile.  The waste pile material can be sold for certain commercial uses. 

 Two environmental lawsuits – the Briley and McSpadden lawsuits – were filed against Doe Run seeking damages suffered by minors exposed to lead and other toxic substances arising out of Doe Run's lead operations.  Doe Run turned to Lexington for coverage, but Lexington refused to defend Doe Run, citing absolute pollution

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