Continental Cas. Co. v. City of Jacksonville
(11th Cir. (Fla.) June 24, 2010)
The Eleventh Circuit upheld a district court’s ruling that Century Indemnity Company is not obligated to defend or indemnify the Duval County School Board in a toxic tort suit filed by thousands of Jacksonville, Florida residents for property damage and emotional distress arising from the construction of a school on a contaminated site in 1957.
The School Board purchased land once used as a landfill, built a school on it, and allowed housing developments to be built near it. In the ensuing toxic tort action, the claimants accused the School Board of building schools on the polluted land without warning families. The underlying complaint did not allege that the School Board discharged the pollutants onto the land. Century, one of the School Board’s insurers, denied coverage based on the policy’s pollution exclusion.
The Eleventh Circuit held that the pollution exclusion barred coverage for the claim, stating, “we conclude that, even if [the School Board] is not itself a polluter, the exclusion applies; the provision is not about who caused the pollution, but is about pollution and its effects underlying a claim.” The court further noted that the claim “arose out of the discharge of pollutants into or upon the land” even if the School Board did not place the pollutant into or upon the ground.
For a copy of the case, click here
Carrie Appler and Michael Saltzman