“Pollutant” Held Ambiguous In Absolute Pollution Exclusionshoke2013
In a Chinese drywall case, a Colorado state court (applying Massachusetts law) found that “pollutant” in an absolute pollution exclusion is ambiguous absent more facts.
CGL insurers asserted that the absolute pollution exclusion in the policy issued to a Chinese drywall supplier barred coverage because the underlying claims alleged the release of pollutants. Applying Massachusetts law, the court denied summary judgment to the insurers finding that there was a legitimate factual dispute at that stage of the litigation as to whether the drywall was actually a pollutant within the meaning of the exclusion. The court found that Massachusetts law requires a fact-specific analysis and consideration of what a reasonable policyholder would expect before it could find the alleged contamination was a “pollutant.” ProBuild Holdings, Inc. v. Travelers Property Casualty Co. Of America, Case No. 2010CV378 and 2010CV2912, Dist. Ct. Boulder County, Colorado.