Lead Paint as a Pollutant

May 9, 2016

 

The insurer brought an action against the insured for a declaratory judgment that lead paint ingested by a child was a pollutant. This case is Georgia Farm Bureau Mutual Insurance Company v. Smith, 2016 WL 1085397.

 

The Supreme Court of Georgia granted a petition for certiorari to the Court of Appeals to determine whether the Court of Appeals erred in holding that personal injury claims arising from lead poisoning due to lead-based paint ingestion were not excluded from coverage pursuant to an absolute pollution exclusion in a commercial general liability policy.

 

In the particular case, Smith sued her landlord (Chupp) for injuries sustained by Smith's child as a result of ingesting lead from deteriorating lead-based paint at the house Smith rented from Chupp. Chupp, the insured, tendered the claim to his insurer, Georgia Farm Bureau. The insurer filed a declaratory judgment action seeking a determination that the injuries were not covered under the policy due to the pollution exclusion. The trial court ruled that lead-based paint unambiguously fell within the policy's definition of pollutant and so, the injury claim was excluded by the pollution exclusion. Upon appeal, the Court of Appeals reversed the lower court ruling and held that the terms in the pollution exclusion were ambiguous. The Supreme Court of Georgia then granted the petition for certiorari and posed this question: were the claims for person injury resulting from lead-based paint ingestion excluded from coverage pursuant to the pollution exclusion?

 

The Supreme Court of Georgia recognized this question as a matter of first impression for the state. The court did examine the history of the pollution exclusion in insurance policies but noted that Georgia courts have enforced absolute pollution exclusion clauses without requiring that the pollutant at issue be explicitly named in the policy. The court then decided that the plain language of the pollution exclusion in this instance was determinative. The court found that the contractual language of the pollution exclusion unambiguously governs the factual scenario in this case.

 

The court concluded that Smith alleged that her daughter suffered lead poisoning and permanent injury from the ingestion of lead-based paint found on the premises that she rented from Chupp. Under the broad definition contained in the policy, the court said that lead present in paint unambiguously qualifies as a pollutant and that the plain language of the policy's pollution exclusion excluded the claims from coverage. The decision of the Court of Appeals was reversed.

 

Editor's Note: The Supreme Court of Georgia holds that, as a matter of first impression, lead is a pollutant within the meaning of the absolute pollution exclusion.

 

This case is also noted for the brief but instructive history of the pollution exclusion that the court presented.