Steven Plitt, Expert Witness Steven Plitt, Expert Witness
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Georgia Court Of Appeals Finds Lead-based Paint Injuries Subject To Insurance Policy's Insurance Exclusion

In Brownlee v. Liberty Mutual Fire Ins. Co., 456 Md. 579, 175 A.3d 697 (2017), the Maryland Court of Appeals, interpreting Georgia law, held that a policy's pollution exclusion applied to bodily injuries resulting from the ingestion of lead-based paint. The Court found that Georgia's interpretation of the pollution exclusion did not violate Maryland's strong public policy that protected victims of lead-based paint. 

In this case, the plaintiffs were living at a property that had deteriorating lead-based paint. As a result of ingesting the lead-based paint, plaintiffs suffered permanent brain damage. Plaintiffs sued the Salvation Army, which owned the property. The Salvation Army asserted that it was immune from liability on charitable immunity grounds until such time as its insurer, Liberty Mutual, indemnified the Salvation Army. The Salvation Army policy was purchased in Georgia. Although the policies did not include a lead-based paint exclusion, the policies did include pollution exclusions.

The Maryland Court of Appeals found that Georgia law governed the interpretation of the policies. The Maryland Court then noted that Georgia case law had already determined that an identical pollution exclusion was unambiguous and precluded recovery for bodily injury resulting from exposure to any pollutant. Plaintiffs in the lawsuit argued that the Court should not adopt Georgia's interpretation of the pollution exclusion because to do so would violate Maryland's public policy regarding the protection of victims of childhood lead-based paint poisoning. Maryland law banned lead-based paint in homes and allowed insurers to remove coverage for lead-based paint-related claims. However, the Maryland Court noted that the plaintiffs did not identify any legislative action by the Maryland legislature which addressed lead-based paint as a pollutant within insurance policies.

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