McCarter & English LLP on Barrett v. National Union Fire Insurance Co. of Pittsburgh, Pa.: Georgia Court Interprets Pollution Exclusion in Favor of Coverage

McCarter & English LLP on Barrett v. National Union Fire Insurance Co. of Pittsburgh, Pa.: Georgia Court Interprets Pollution Exclusion in Favor of Coverage

Nicholas Insua   By Nicholas Insua, Associate, McCarter & English, LLP

In Barrett v. National Union Fire Insurance Co. of Pittsburgh, Pa., No. A10A1125, 2010 Ga. App. LEXIS 448 (Ga. Ct. App. May 11, 2010) the Court of Appeals of Georgia recently rejected an insurance carrier’s argument that a commercial general liability (“CGL) policy’s pollution exclusion allegedly precluded coverage for a bodily injury claim involving oxygen-deprivation caused by the accumulation of natural gas in an enclosed workplace. The court gave a practical construction to the policy’s so-called pollution exclusion, and found that coverage for the underlying claim should not be barred based on the text and purpose of the exclusion, as well as common rules of insurance policy interpretation. In the underlying action, the plaintiff, an employee of a company that installs natural-gas pipelines, was injured when he attempted to retrieve a plug for part of the pipeline. While retrieving the plug, the natural gas around him created an oxygen-deprived atmosphere, which in turn led to severe brain injury.

In reversing the trial court and finding in favor of the policyholder, the Court of Appeals first held that natural gas was not per se an “irritant or contaminant” for purposes of the pollution exclusion. The court also found that natural gas was not defined as a “pollutant or contaminant” under CERCLA. Further, the court held that applying the pollution exclusion in this case would violate Georgia public policy and would undermine the policyholder’s reasonable expectations. Finally, the court found questions of fact existed because the but-for cause of the worker’s injuries was not natural gas, but the negligence of other individuals working with him on the job. The decision in Barrett  is an important victory for policyholders and an encouraging sign that courts will not strain to rewrite insurance policies for insurance companies by crafting overbroad exclusions.

Mr. Insua is an associate in the Newark, New Jersey office of McCarter & English, LLP. He may be reached by e-mail at ninsua@mccarter.com. The opinions in this article are those of the author alone and do not represent the views of McCarter & English, LLP or any of its clients.

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