In an earlier post, I discussed the growing efforts of insurers to exclude and endorse away coverage under commercial general liability (CGL) policies. Because CGL policies are often marketed as a first line of defense for businesses, policyholders need to make sure that they understand the limitations on their CGL coverage. An experienced agent or broker can often assist in plugging the gaps that often exist in CGL coverage, either by obtaining endosements that limit exclusions or through coverage designed to cover specific risks.

I want to make clear, however, that a policyholder should never accept at face value an insurer's determination that a claim is not covered under a CGL policy (or any other policy for that matter). Because CGL policies are written in general terms, because most courts construe ambiguities against insurers, and because most courts interpret exclusions narrowly, insurers are not always successful in their efforts to limit coverage.

For example, earlier this year, the Supreme Court of Georgia rejected an insurer's argument that negligent construction was not an "occurrence" under a CGL policy.  This decision was in the face of a number of prior decisions from the United States District Court for the Northern District of Georgia that had accepted the argument. Because the Supreme Court of Georgia has the last word in interpreting Georgia law, this contentious issue has now been decided in favor of Georgia policyholders. The law in other states varies.

Similarly, notwithstanding the breadth of the so-called "absolute pollution exclusion," it may be possible to obtain coverage under a CGL policy when a carrier denies a claim based on this exclusion. Carriers may have overplayed their hand in some instances in arguing that various substances are "pollutants." For example, the Georgia Court of Appeals declined to apply the pollution exclusion to a claim involving injuries caused by exposure to natural gas.

It goes without saying that every case is different and largely depends on its own facts. The law often differs from state to state. However, despite their efforts to restrict coverage, many carriers have been ordered to pay claims under CGL policies that they tried to deny. As stated, never accept at face value a carrier's determination that a claim is not covered.
9/19/2011 17:01:33

Hi John. I enjoy your blog.

Re the above post, I would add that policyholders should also typically avoid relying upon a broker or agent's informal opinion regarding whether an actual claim is covered by an existing policy.

Michael

4/25/2012 01:24:04

This is such a great resource that you are providing and you give it away for free.


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