ASBESTOS NOT A POLLUTANT UNDER POLLUTION EXCLUSION CLAUSE OF EXCESS POLICY

April 2, 2012

Also recently, a district court in the Marshall Division of the Eastern District of Texas ruled that asbestos is not a pollutant under the pollution-exclusion clause of an umbrella policy.  LSG Technologies v. U.S. Fire Insurance Co., No. 2:07-cv-00399-DF, (E. Dist. – Marshall Div., March 16, 2012) (slip opinion). The insureds are defendants in numerous asbestos and mixed dust cases in the Eastern District of Texas. The insurance company here issued excess policies to the insureds over comprehensive CGL policies. The insureds sued the insurance company for refusing to provide coverage in the various asbestos suits. The insurance company moved for summary judgment on the claim, arguing that its policy’s pollution- exclusion clause precludes asbestos claims.  When considering the insurance company’s summary judgment motion, the court stated that it “has not found any cases where asbestos is considered a ‘pollutant’ … the Court declines to find that asbestos is a pollutant subject to the pollution exclusion.”  As an alternate holding, the court also determined that there was a fact issue as to whether asbestos-exposure claims involve “sudden and accidental” releases that would fall under the pollution-exclusion clause.