In this post in the Blog’s Landmark Montana Supreme Court Decision Series, we discuss the court’s ruling on the pollution exclusion in National Indemnity Co. v. State, 499 P.3d 516 (Mont. 2021).

The exclusion at issue was the standard qualified pollution exclusion used in some CGL policies in the mid-1970s. It excluded coverage for:

bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.

Id. at 539. Recall that Montana sought coverage for claims alleging it had failed to warn claimants of the dangers of asbestos exposures to workers at a mine operated by W. R. Grace. Because Montana was not involved in the use of asbestos, the parties disputed whether this exclusion applied. Montana contended the exclusion applied only when Montana was the alleged polluter. The insurer claimed the exclusion applied to all pollution, regardless of who polluted.

In the Hunton brief for United Policyholders (UP), UP highlighted the insurance industry’s representations to state regulators about the pollution exclusion. Those representations supported that the pollution exclusion was only a clarification of the coverage previously existing in the standard CGL form and that the exclusion was only meant to bar coverage for actual polluters.

The Montana Supreme Court ruled in favor of the State. It found that the insurer’s position would result in an “absurd or nonsensical coverage result” because it “would be covered for liability arising from a failure to warn of a ‘sudden and accidental’ discharge—a seeming impossibility, given that sudden accidents necessarily occur without warning—but would not be covered for liability arising from a failure to warn of an ongoing, intentional discharge.” Id. at 540. Thus, “applying the exclusion to the discharges of third parties is not a reasonable reading of the provision.” Id. And so “only the State’s reading is reasonable,” and the Court concluded that the exclusion did not bar coverage. Id.