November 27, 2017 Practice Points

Court Finds that Pollution Exclusion Applies to Smelter Lead Particulate Emissions

The Missouri Supreme Court left room for future argument

by Nicole Weinstein

Recently, the Missouri Supreme Court held that lead particulates emitted into the air outside a smelting facility qualify as “pollutants” under a pollution exclusion, and that insurance coverage was not available.  Doe Run Res. Corp. v. Am. Guar. & Liab. Ins., No. SC96106 (Mo. Oct. 31, 2017).

The underlying class action involved a lead smelting facility in Peru.  Residents in the vicinity of the facility alleged bodily injury from exposure to the facility’s emission of a dust composed of lead, arsenic, cadmium, and sulfur dioxide.  The policyholder sought insurance coverage under a commercial general liability policy with periods of coverage spanning 2005 to 2007.  The policy included a pollution exclusion for injury stemming from pollution at the insured’s premises, defining “pollutant” to mean “any solid, liquid, gaseous, or thermal irritant or contaminant.”

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