Mississippi Supreme Court Unanimously Concludes Pollution Exclusion Is Ambiguous

Reversing a trial court’s grant of summary judgment for an excess insurer under a pollution exclusion, the Mississippi Supreme Court unanimously held the exclusion ambiguous. See Omega Protein, Inc. v. Evanston Ins. Co., Case No. 2020-CA-01097-SCT, 2022 WL178171, at *1 (Miss. Jan. 20, 2022). 

Litigation arose from an explosion at a facility that occurred during work being performed on a large metal storage tank by a party contracted to perform welding and fabrication work. The explosion killed one worker and injured others. The deceased’s estate sued the facility owner, alleging that the explosion stemmed from explosive gases inside the storage tank, and the owner sought a defense and indemnity from the contractor’s primary and excess policy insurers asserting additional insured status. The primary insurer contributed its policy limit for settlement and filed a declaratory judgment action, after which the excess insurer intervened and also sought declaratory judgment that no coverage existed based on the excess policy’s pollution exclusion. 

On appeal, the Mississippi Supreme Court reversed the trial court’s determination that the pollution exclusion unambiguously precluded coverage. The Court held that the pollution exclusion defined “pollutant” to include an “irritant or contaminant,” neither of which was defined. Concluding that the exclusion’s use of “irritant or contaminant” was susceptible to more than one interpretation, and thus ambiguous, the Court reversed the trial court’s finding that the exclusion applied.