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Thirty years after its introduction, the absolute pollution exclusion continues to be the subject of vigorous litigation, recently reaching the supreme courts of Vermont and Georgia. In December 2015, the Vermont Supreme Court issued its decision in Whitney v. Vermont Mutual Insurance Co., No. 2015-073, 2015 WL 8540432 (Vt. Dec. 11, 2015), in which it refused to limit the absolute pollution exclusion to “traditional” environmental claims. Many had wondered whether the Georgia Supreme Court would follow suit, which it did in its recent ruling in Georgia Farm Bureau Mut. Ins. Co., No. S15G1177, 2016 WL 1085397 (Ga. Mar. 21, 2016), reaffirming its earlier determination that the exclusion is not subject to a limiting gloss arising out of its original purpose of reinforcing the earlier qualified pollution exclusion. Cf. Reed v. Auto-Owners Ins. Co., 284 Ga. 286 (2008). Indeed, both cases find that the injury-causing agent falls within the definition of a “pollutant.”
1. VT Finds Absolute Pollution Clause Not Inherently Ambiguous
In Whitney v. Vermont Mutual Insurance Co., the Vermont Supreme Court was asked to consider the application of the absolute pollution exclusion to property damage allegedly caused by a pesticide application. The pollution exclusion in Whitney matches the typical one, excluding coverage for “bodily injury” or “property damage” “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of 'pollutants,'” which are defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” Whitney v. Vermont Mut. Ins. Co., No. 2015-073, 2015 WL 8540432, *1-2 (Vt. 2015).
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