Court's Reasoning That 'Bacteria' Is Not A 'Pollutant' Favorable For Policyholders In Other Cases

Insurance companies often look to the pollution exclusions in their commercial general liability policies in attempts to exclude coverage for many types of claims. They will try to fit all sorts of things within the definition of "pollutants." Just last Friday, though, the U.S. District Court for the Eastern District of Louisiana made that more difficult, offering a common-sense understanding of the term "pollutant." That court found that "under Louisiana law, Legionella and Pseudomonas aeruginosa bacteria" – the bacteria which cause Legionnaire's disease – "do not qualify as 'pollutants' within the meaning of [pollution] exclusions."

At issue, in relevant part, in Paternostro v. Choice Hotel International Services Corp., No. 13-0662 (E.D. La.), is whether primary and excess commercial general liability insurance policies provide coverage for claims brought against a hotel's (i) franchisor and (ii) franchisee, owner, and operator by guests or invitees of the hotel who allegedly suffered personal injuries as a result of exposure to Legionella and Pseudomonas aeruginosa bacteria in the hotel.

The Eastern District of Louisiana's recent decision in that case considered numerous dispositive motions and addressed many issues, including the applicability of bacteria exclusions. In considering certain of those exclusions, the court also addressed the relevant policies' pollution exclusions.

Generally, the pollution exclusions provide that the relevant policy or insurance does not apply to, or provide coverage for, among other things, bodily injury (or personal injury) or property damage arising out of "the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants [anywhere] at any time." In turn, the relevant policies define "pollutants" to mean: "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."

Relying on the foregoing policy language, as well as a 2000 Louisiana...