Flexdar Court Sides With Insureds: Reinforces Kiger; Broadens “Ambiguous” Interpretation of Absolute Pollution Exclusion Language

Written by Justin Gifford, J.D., General Counsel, EnviroForensics and PolicyFind

The Indiana Court of Appeals’ November opinion in the recent State Automobile Mutual Insurance Co. v Flexdar, Inc. (Ind. App. 2010) comes as good news to business owners like drycleaners who currently or have historically used tetrachlorethene (perc) or petroleum solvents that may have been released into the environment.  The Appellate Court’s decision re-examined the landmark American States Insurance Co. v. Kiger (662 N.E.2d 945, Ind. 1996) as well as its progeny and found for Flexdar, Inc., the insured.  (Kiger established that the absolute pollution exclusion found in many general commercial liability (GCL) policies is ambiguous and, as a result, ineffective in insulating insurers from their duties to defend and/or indemnify their insureds for claims made by the Indiana Department of Environmental Management that the insureds investigate and clean up releases of perc or other substances into soil and groundwater.)  Continue reading “Flexdar Court Sides With Insureds: Reinforces Kiger; Broadens “Ambiguous” Interpretation of Absolute Pollution Exclusion Language”