Silica Constitutes a "Pollutant" for Purposes of a Total Pollution Exclusion
April, 2005
Silica Constitutes a "Pollutant" For Purposes
of a Total Pollution Exclusion
by Michelle R. Valencic
mvalencic@clausen.com
In Garamendi v. Golden Eagle Ins. Co., 127 Cal.App.4th 480, 25 Cal.Rptr.3d 642 (1st Dist. 2005), an insured sought coverage under a CGL policy for claims resulting from alleged exposure to silica and silica dust during sandblasting operations. The insurer was in liquidation. The claims administrator denied coverage based upon a Total Pollution Exclusion in the subject policy. The insured challenged this denial at the trial court level and lost. The Court of Appeals upheld the denial and coverage was excluded.
Facts
The Total Pollution Exclusion at issue excluded coverage for “bodily injury or property damage which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.” Additionally, the term “pollutant” was defined as “any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste.”
The insured argued that the exclusion should be limited to situations involving irritants or contaminants commonly thought of as pollution and/or to injuries arising from events commonly arising out of environmental pollution. Further, since silica is found in many commonplace materials, the insured argued that silica was not a “pollutant” within the meaning of the subject policy.
Analysis
The appellate court held that silica constitutes a “pollutant” because it falls within the broad definition of “any solid, liquid, gaseous, or thermal irritant or contaminant,” and because federal regulations identify silica dust as an air contaminant. Further, the court found that the widespread dissemination of silica dust as an incidental by-product of industrial sandblasting operations “most assuredly” is what is “commonly thought of as pollution” and “environmental pollution.” While the court acknowledged that the underlying product liability claims may not have fallen within a standard pollution exclusion (which generally applies to pollution occurring at a particular location), the language of the Total Pollution Exclusion at issue was far broader and encompassed any injuries that would not have occurred “but for” the discharge of pollutants. Finally, the court found the inclusion of a specific asbestos exclusion within the same policy did not render the Total Pollution Exclusion inapplicable to other pollutants not specifically designated in the policy. Thus, coverage was denied.
Learning Point: Courts have not uniformly applied standard pollution exclusions to preclude coverage for silica claims. This decision joins a few other federal court cases which have recognized silica as a “pollutant” and/or which have applied “total” pollution exclusions to silica cases, but most state courts have not addressed the issue.•
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