We are honored to represent United Policyholders (a non-profit advocacy organization for policyholders) on an issue of great concern to many of our commercial clients, and in particular those in the construction industry: the scope of the so-called “absolute pollution exclusion.” Our amicus brief to the Ninth Circuit for UP on the issue was filed on November 2 and is available here.
As my colleague Frank Langfitt explained here, earlier this year a federal trial judge in Oregon, in the case Colony Insurance v. Victory Construction, interpreted the exclusion very broadly, holding that almost any substance could be a “pollutant.” In that case, a spa and pool contractor was sued because a pool heater allegedly allowed carbon monoxide to build up, causing bodily injury to a home’s occupants. The court held that the insurer had no duty to defend the contractor because carbon monoxide—a naturally occurring substance that was not being handled by the contractor—was a “pollutant.”
Victory Construction chose to appeal to the Ninth Circuit and United Policyholders asked us to represent it as amicus curiae, in order to present the concerns of policyholders generally that the pollution exclusion—as interpreted by insurers—is so broad that it could apply to almost any substance, contrary to the interpretation of ordinary purchasers of insurance and undermining the purposes of general liability coverage. In addition, we addressed the recent Xia decision (which we previously wrote about here), in which the Washington Supreme Court adopted an entirely different approach to this exclusion (and exclusions in general), partially to avoid the tremendously harsh results of the insurance industry’s view of the exclusion.
UP is on the front lines (literally) of the issues of greatest concern to policyholders—including conducting education and training sessions for victims of wildfires and hurricane damage—and it is a privilege to represent such a great organization. This is the third amicus brief that we have done for UP in either the Oregon state courts or the Ninth Circuit.