Washington Supreme Court Finds Cgl Pollution Exclusion Inapplicable to Negligence Torts Not Involving Environmental Degradation

By Stempel, Jeffrey W. | Journal of Risk and Insurance, September 2000 | Go to article overview

Washington Supreme Court Finds Cgl Pollution Exclusion Inapplicable to Negligence Torts Not Involving Environmental Degradation


Stempel, Jeffrey W., Journal of Risk and Insurance


Kent Farms, Inc. v. Zurich Ins. Co., 2000 Wash. LEXIS 278 (Washington Supreme Court -- April 27, 2000).

Steve Gugenberger made a delivery of diesel fuel to Kent Farms. As he was removing the delivery hose, a faulty intake valve allowed the fuel to back-flow over him. "He struggled to replace the hose, to stop the potential spill of thousands of gallons of diesel fuel. Fuel was driven into his eyes, his lungs, and his stomach, causing him significant injury." 2000 Wash. LEXIS at * 2.

When Gugenberger sued Kent Farms for negligence in maintaining and designing the fuel tank, Kent Farms tendered the claim to its insurer, Zurich. Zurich denied coverage and refused to defend its policyholder "on the grounds that coverage was precluded by a pollution exclusion clause in the policy." Kent Farms brought a declaratory judgment action seeking coverage and won by summary judgment at both the trial court and intermediate appellate court level. The Washington Supreme Court unanimously affirmed, finding that the broadly worded pollution exclusion clause did not apply to this type of tort claim against a policyholder.

The Zurich pollution exclusion in question was the now-familiar one proving that coverage was barred for bodily injury claims "arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants," with "pollutant" being defined to 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." 2000 Wash. LEXIS 278 at *3-*4

The Court found the exclusion inapplicable largely because the exclusion was never intended to remove Gugenberger-type incidents from the coverage afforded to a commercial CGL policyholder for ordinary torts sounding in negligence. Reading the policy as a whole and in light of its intended purpose, the court found that

This exclusion clause does not deal with the discharge of substances that may also be pollutants directly onto (and into) an individual; rather, this clause specifically addresses those situations in which injury was caused by environmental damage. We, therefore, hold the absolute pollution exclusion clause relates to environmental damage, and not to the facts of this case.

Id. at *7-*8

Although diesel and other fuels fall within the definition of pollutants and was involved in Gugenberger's injury, the Court found this not to be dispositive:

[T]his reasoning [that anything involving a "pollutant" is outside coverage] misunderstands the nature of the claim. Gugenberger was not po1luted by diesel fuel. It struck him; it engulfed him; it choked him. It did not pollute him. Most importantly, the fuel was not acting as a 'pollutant' when it struck him any more than it would have been acting as a pollutant if it had been in a barrel that rolled over him .... To adopt Zurich Insurance's interpretation would unjustly broaden the application of the exclusion far beyond its intended purpose.

Id. at *8.

The Court also noted that finding coverage in Gugenberger's case was consistent with the reasonable expectations doctrine and consistent with the reasonable expectations of Kent Farms that it had CGL coverage for essentially ordinary workplace mishaps that result in third-party tort claims sounding in negligence. However, the Court did not rest its decision on the reasonable expectations doctrine. Kent Farms was decided based on the Court's interpretation of the meaning of the pollution exclusion clause according to ordinary principles of contract construction.

Additionally and importantly, the Kent Farms Court also concluded that the broad, post-1985 pollution exclusions generally found in liability policies [1] were added to liability policies to remove the risk of an insurer facing a multitude of long-gestation claims arising from gradual or repeated discharge of hazardous waste into the environment and in particular to avoid insurance coverage for cleanup costs occasioned by Superfund (the Comprehensive Environmental Response, Compensation, and Liability Act of 1980) and similar state legislation. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Washington Supreme Court Finds Cgl Pollution Exclusion Inapplicable to Negligence Torts Not Involving Environmental Degradation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.