Ninth Circuit Could Expand Reach of Insurers’ Pollution Exclusion

Law360 Insurance Authority / Shane Dilworth

  • November 9, 2023

The Ninth Circuit's decision on whether a total pollution exclusion could relieve an insurer from covering an injury suit stemming from wildfire cleanup could expand the exclusion's application to suits outside the realm of conventional environmental contamination, experts say...

Policyholder attorney Raymond A. Mascia Jr., a shareholder at Anderson Kill PC in New York, told Law360 the crucial issue before the Ninth Circuit is Ingram's reasonable interpretation of coverage. He said it's difficult to think that the cleanup of debris from a wildfire constituted an act of pollution by Ingram that would trigger the exclusion since the contaminants were not contained.

Mascia said the well-settled principles of insurance law require an insurer to defend a policyholder if there's any possibility of coverage and that the carrier must unambiguously show that an exclusion applies to avoid that duty. A policyholder's reasonable interpretation of coverage under the policy also weighs in its favor.

"I think this case really comes down to whether a reasonable policyholder would understand the words 'contained' and 'release' to apply to a substance that was already sitting on the ground out in the open," he said.


Anderson Kill's Mascia said the ruling in MacKinnon is important because it supports the argument that pollutants must be contained to be released. Unlike pollutants in typical environmental contamination cases, he said, the remnants of the wildfire were not contained.


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