Lead Paint is Not an Excluded Pollutant in CGL Pollution Exclusion

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In a personal injury action involving ingestion of lead-based paint in the house the claimant rented from the insured, the majority of the First Division Georgia Court of Appeals held that a policy’s pollution exclusion does not bar coverage for underlying personal injury claims, because lead-based paint was not specifically listed as a pollutant in the policy. Therefore, the exclusion did not exclude coverage for injuries arising out of the ingestion or inhalation of lead-based paint. This decision reversed the trial court grant of summary judgment to the insurer.

The insurer, Georgia Farm Mutual Insurance Company, provided a Commercial General Liability policy covering the rental property in question. They filed a declaratory judgment action against the insured seeking a determination that it was not required to provide coverage for the alleged injuries and was not required to defend the claim because the injuries were covered by the pollution exclusion in the policy. The trail court granted summary judgment to the insurer in the declaratory judgment action and the insured appealed.

The appeals court held that the policy exclusion did not apply to the insured’s claim because lead-based paint is not clearly a “pollutant” as defined by the policy. The policy defined “pollutants” as follows:

 “Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed”

 In analyzing this definition, the appeals court concluded that the there was ambiguity as to whether it covers lead paint, given that it does not specifically mention paint products in the definition. The court held that if the insurer had intended to exclude injuries caused by lead paint, it was required to specifically exclude these injuries from the policy. Therefore, as the exclusion did not specifically list “lead paint” or even paint generally, it did not exclude coverage for the injuries. As a result, the appeals court found that the trail court had erred by holding that the claim came within the policy’s exclusions.

Smith v Ga Farm Bureau Mut Ins Co _ 2015 Ga App LEXIS 247, 2015 Ga. App. LEXIS 247 (Ga. Ct. App. Mar. 30, 2015)