Over the past 15 years, the standard ISO absolute pollutionexclusion — also referred to as the total pollution exclusion — hasbeen litigated in the traditional environmental arena across thecountry. As a result, claim professionals know how to apply thelanguage of the absolute pollution exclusion to the facts of anynew claim presented in each jurisdiction. Or do they?

While it is true that coverage disputes concerning the absolutepollution exclusion have largely litigated themselves out, theclaims that are litigated today likely involve non-traditional orindoor cases of pollution. Courts around the country show morehesitation in applying the strict terms of the absolute pollutionexclusion to indoor or non-traditional discharges of pollution.

The standard ISO pollution exclusion clause after 1985 providesthat the insurance policy does not apply to bodily injury orproperty damage arising out of the discharge of pollutants.Pre-1986 pollution exclusions contained an exception for dischargesthat were sudden and accidental. There are various versions of theabsolute pollution exclusion, but the hallmark of all versions isthat there is no longer a sudden-and-accidental exception to theexclusion.