Written by David O’Neill, JD, Director of Investigations
Unlike the Supreme Court of Indiana, which took a clear position on the ambiguity of the absolute pollution exclusion in its 2012 State Automobile Mutual Insurance Company v. Flexdar, Inc. decision, the Missouri Supreme Court has yet to make a ruling on the meaning of the exclusion. However, the Federal Courts have been unusually active in predicting how the Missouri high court might apply or not apply the exclusion in varying scenarios.
Most recently, the Eighth Circuit U.S. Court of Appeals filed a June 13, 2013 opinion in the case styled Doe Run Resources Corporation v. Lexington Insurance Company in which it reviewed a District Court’s denial of insurance defense to a lead mine and mill operator under a general liability insurance policy. The lead producer cited to the 1999 Missouri Court of Appeals opinion in Hocker Oil Co. v. Barker-Phillips-Jackson. There, Missouri court had decided that the pollution exclusion was ambiguous as it applied to gasoline as a product in the operation of a gasoline station. In both cases, the CGL policies did not define “pollutant.” The Hocker court was unwilling to enforce a policy that provided no coverage for a large segment of the insured’s business operations. Making the analogy to lead concentrate and tailings as being products in a lead mining and milling scenario, the Doe Run court then set out to distinguish product from pollutant based on the way the substance is stored. The Eighth Circuit’s decision not to follow Hocker may leave that case’s precedential value in question. Continue reading “Fed Courts Differ on Absolute Pollution Exclusion in Missouri; Which Definition of “Pollutants” To Follow Remains Unclear”