Publications

An Alabama federal district court ruled that an absolute pollution exclusion does not bar coverage for claims arising out of sewage exposure and that the date of injury is determinative for purposes of policy period analysis, not the date of the injury-causing “occurrence.”  Evanston Ins. Co. v. J&J Cable Construction, LLC, 2016 WL 5346079 (M.D. Ala. Sept. 22, 2016).

The coverage dispute arose out of personal injury and property damage claims caused by exposure to sewage.  A sub-contractor negligently struck sewer pipes during a construction project, resulting in sewage exposure in several neighboring homes.  Evanston denied coverage for the claims based on:  an absolute pollution exclusion and a policy period defense.  The court rejected both arguments.

 The court ruled that sewage is not a pollutant within the meaning of the exclusion, and that the terms “discharge” and “dispersal” in the exclusion have been interpreted to refer to traditional environmental pollution under Alabama law.  The court also dismissed Evanston’s argument that all of the injuries occurred after the policy’s November 12, 2013 expiration date.  The court found that while some evidence suggested that the underlying claimants did not suffer injury until November 16 or later, other evidence indicated that plumbing problems had begun in the claimants’ homes earlier in time, which raised a question of fact as to the timing of injury.