Over the past 15 years, the standard ISO absolute pollution exclusion — also referred to as the total pollution exclusion — has been litigated in the traditional environmental arena across the country. As a result, claim professionals know how to apply the language of the absolute pollution exclusion to the facts of any new claim presented in each jurisdiction. Or do they?
While it is true that coverage disputes concerning the absolute pollution exclusion have largely litigated themselves out, the claims that are litigated today likely involve non-traditional or indoor cases of pollution. Courts around the country show more hesitation in applying the strict terms of the absolute pollution exclusion to indoor or non-traditional discharges of pollution.
The standard ISO pollution exclusion clause after 1985 provides that the insurance policy does not apply to bodily injury or property damage arising out of the discharge of pollutants. Pre-1986 pollution exclusions contained an exception for discharges that were sudden and accidental. There are various versions of the absolute pollution exclusion, but the hallmark of all versions is that there is no longer a sudden-and-accidental exception to the exclusion.
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