Georgia Joins Growing Consensus that Lead-Based Paint is a Pollutant

For the first time, the Supreme Court of Georgia declared that lead-based paint is a “pollutant” as the term is used in the absolute pollution exclusion of a commercial general liability policy.

The plaintiff, Amy Smith, individually and on behalf of her daughter, sued her landlord, Bobby Chupp for injuries the daughter sustained as the result of ingesting lead from deteriorating lead-based paint at the house Smith rented from Chupp. Chupp held a CGL policy issued by Georgia Farm Bureau Mutual Insurance Company (GFB) that covered the house. GFB filed a declaratory judgment action seeking a judicial determination that, inter alia, there was no coverage based on the absolute pollution exclusion contained in the CGL policy.

The case, Georgia Farm Bureau Mut. Ins. Co. v. Smith, No. S15G1177, 2016 WL 1085397 (Ga. Mar. 21, 2016), reached the Supreme Court of Georgia. The court noted that there is a split among the courts of various states as to whether lead-based paint is a “pollutant” under a CGL policy. However, in a previous case, the court had interpreted the definition of “pollutant” to include “matter, in any state, acting as an ‘irritant or contaminant.’” The court refused to adopt an approach that considered the purpose and historical evolution of pollution exclusions before looking to the plain language of the clause itself. Instead, the court found that the language of the absolute pollution exclusion was unambiguous—lead-based paint is a “pollutant.”

Although there continue to be competing views on whether lead paint is a “pollutant,” Georgia has joined the list of states holding that it is and that have barred coverage for lead paint exposure claims under a CGL policy’s absolute pollution exclusion.