## Facts

- A residential tenant sued her landlord on behalf of her minor child, alleging the child was injured by ingesting lead from deteriorating lead-based paint in the rental home.
- The landlord was insured under a commercial general liability (CGL) policy providing coverage for damages because of “bodily injury” caused by an “occurrence,” and imposing a duty to defend suits seeking such damages.
- The policy contained an absolute pollution exclusion barring coverage for bodily injury arising out of the discharge, dispersal, seepage, migration, release, or escape of “pollutants.”
- “Pollutants” were defined broadly as “any solid, liquid, gaseous or thermal irritant or contaminant,” with an illustrative list including “smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”
- The insurer filed a declaratory judgment action against the landlord and tenant seeking a ruling that it owed no duty to defend or indemnify, relying primarily on the pollution exclusion (and alternatively arguing there was no initial coverage).
- The trial court granted summary judgment to the insurer based on the pollution exclusion; the court of appeals reversed; the supreme court granted review.

## Issues

1. Whether injuries from ingesting lead from deteriorating lead-based paint in a residential rental home arise from a “pollutant” under the policy’s absolute pollution exclusion.
2. Whether the exclusion is inapplicable or ambiguous because “lead” or “lead-based paint” is not expressly listed among the examples of pollutants.

## Decision

- The Supreme Court of Georgia reversed the court of appeals and reinstated summary judgment for the insurer.
- The court held that lead-based paint falls within the policy definition of “pollutants” as an “irritant or contaminant.”
- The court concluded the child’s alleged injuries “arose out of” the release/dispersal/migration of a pollutant as stated in the exclusion.
- Because the pollution exclusion disposed of coverage, the court did not reach the insurer’s alternative argument that the claim fell outside initial coverage.

## Legal Principles

- Insurance policies are construed by giving terms their usual and common meaning as a layperson would understand them.
- A CGL policy definition of “pollutants” as “any … irritant or contaminant” is broad and is not limited to traditional environmental or industrial pollution.
- Illustrative lists following “including” do not restrict the general definition and do not create ambiguity merely because a particular substance is not named.
- Lead-based paint is a contaminant/irritant within the ordinary meaning of those terms, so injuries from exposure to or ingestion of lead-based paint can fall within an absolute pollution exclusion.
- Contra proferentem does not apply where the exclusion’s terms are unambiguous.

## Conclusion

The Supreme Court of Georgia held that lead-based paint is plainly a “pollutant” under a standard CGL definition and that bodily injury claims from a child’s ingestion of lead from deteriorating lead-based paint are barred by the policy’s absolute pollution exclusion, eliminating the insurer’s duty to defend and indemnify the landlord.


Georgia Farm Bureau Mut. Ins. Co. v. Smith, 298 Ga. 716, 784 S.E.2d 422 (Ga. 2016)