1 October 2012
The unfortunate events of Sept. 11, 2001 gave rise to myriad insurance and tort litigations of all types and descriptions. Included was one of the largest series of mass tort cases in U.S. history arising from the cleanup after Sept. 11. While recently settled in major part, remnants and offshoots of those cases remain pending before the federal courts in New York.One of the many insurance issues that were born of that disaster concerned the interplay between the absolute pollution exclusion, which is contained in many of the commercial general liability and excess insurance policies issued to defendants in the underlying personal injury actions, and the disbursement of contaminants into the air caused by the destruction of two massive buildings. On the one hand, defendants sought to have their commercial insurance policies defend and, if necessary, indemnify them for the personal injury claims brought by rescue, recovery and cleanup workers. On the other hand, insurers with policies containing the pollution exclusion often disclaimed or reserved rights based on that exclusion and other policy provisions.