Jenner & Block

"Insurance Coverage: Looking Over the Horizon as Global-Warming Litigation Develops," New York Law Journal

Partners Matthew L. Jacobs and Lorelie S. Masters and Associate Nicholas O. Stephanopoulos wrote an article published in the New York Law Journal's special section on Climate Change, which focuses on present and future litigation concerning global warming and its treatment in the insurance coverage context.

The article discusses various recent lawsuits over global warming and compelling arguments in favor of coverage of global warming-related liabilities, notwithstanding the so-called "pollution exclusion." Greenhouse gases, like carbon dioxide, are not typically considered "pollutants," nor are they included on any federal pollutant list.  And any ambiguities in an insurance policy are construed against the insurer, and at the very least in favor of coverage of companies' defense costs.

The article also considered the insurers' arguments against coverage, but concluded that they are at odds with the policy language as well as the normal rules of contract interpretation. Accordingly, as global warming lawsuits become more common, the pollution exclusion likely will not bar coverage of the resulting liabilities.

This article first ran in the March 3, 2008 issue of Legal Times.