Broad exclusion clause titled “Total Pollution Exclusion” deemed ambiguous

Insurance law – Commercial general liability insurance – Pollution exclusions – Duty to defend – Interpretation of policy

Hemlow Estate v. Co-operators General Insurance Co., [2021] O.J. No. 419, 2021 ONSC 664, Ontario Superior Court of Justice, January 29, 2021, J.R.H. Turnbull J.

The deceased insured worked in the oil analysis business as an oil sample technician and his estate was sued by a client for negligence, nuisance, and/or breach of contract. The lawsuit alleged that, in the course of the insured’s work, the insured opened a valve to a pipe containing pressurized ammonia, causing it to escape and cause damage to the client’s property. The insurer denied it had a duty to defend the claim because of the existence of a pollution exclusion in the policy. The insured’s estate brought an application seeking a declaration that the insurer had a duty to defend.

Turnbull J. found that the exclusion was ambiguous, overly broad, and capable of more than one interpretation. The term “pollutants” was not defined in the policy. Although the heading for the exclusion defined it as a “Total Pollution Exclusion”, the exclusion appeared to include all emissions. The use of the word pollution in the heading was misleading and confusing. It was possible that the insured reasonably believed that the exclusion applied to pollution in the way normally understood by most people: pollution of the natural environment. As the exclusion was capable of more than one reasonable interpretation and found to be ambiguous, the exclusion had to be interpreted in favour of the insured. The insurer was required to defend the action.

This case was digested by Kora V. Paciorek, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Kora V. Paciorek at kpaciorek@harpergrey.com.

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