C-IV.B · Commercial Casualty Insurance
CGL exclusions: pollution; aircraft, auto and watercraft
Pollution: the standard exclusion removes, among other things, pollution at sites used to store or dispose of waste, waste being transported for the insured, and the costs of testing for or cleaning up pollutants, including under a government order. That is why businesses with real environmental exposure buy pollution liability insurance. The exclusion has an exception for bodily injury or property damage from the heat, smoke or fumes of a hostile fire, meaning a fire that becomes uncontrollable or breaks out from where it was intended to be.
California courts read this exclusion narrowly. In MacKinnon v. Truck Insurance Exchange (2003), the California Supreme Court held that an exclusion must be conspicuous, plain and clear, and that the standard pollution exclusion does not plainly and clearly exclude ordinary acts of negligence involving toxic chemicals such as pesticides. A tenant harmed by a negligent pesticide spraying was not barred by it. Traditional environmental pollution remains the exclusion's target.
Aircraft, auto or watercraft: the CGL excludes bodily injury and property damage arising out of the ownership, maintenance, use or entrustment to others of any aircraft, auto or watercraft owned or operated by, or rented or loaned to, any insured. It also applies when the claim is relabeled as negligent hiring, supervision or training, if the occurrence involved such an auto. A delivery van crash therefore belongs under commercial auto.
One exception to remember: a watercraft the insured does not own that is less than 26 feet long and is not being used to carry persons or property for a charge. A guest hurt on a rented 20-foot boat stays covered; a 40-foot yacht or an owned boat does not. The exception does not extend to aircraft.
Remember
· Pollution exclusion exception: smoke or heat from a hostile fire.
· MacKinnon (CA): exclusion does not plainly bar ordinary negligence with chemicals like pesticides.
· Non-owned watercraft under 26 feet, not for hire, stays covered.
CA
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