The plaintiffs allege that they were injured when a fire
broke out in their apartment building, flooding their apartment with smoke. In
this declaratory judgment action, they claim that the defendant Indian Harbor
Insurance Company, which issued a commercial general liability insurance policy
to the property owner, owes compensation to them for their injuries. Indian
Harbor Insurance denied coverage based on its Total Pollution Exclusion
Endorsement, and filed a motion for summary disposition. The exclusion states that the insurance does
not apply to “‘[b]odily injury’ or ‘property damage’ which would not have
occurred in whole or part but for the actual, alleged or threatened discharge,
dispersal, seepage, migration, release or escape of ‘pollutants’ at any
time.” “Pollutants” is defined to
include “smoke, vapor, soot, [and] fumes . . . .” The trial court denied the motion, and the Court
of Appeals affirmed in an unpublished opinion. The panel held that the alleged
injuries were not caused by a pollutant; they arose from the negligence of the
insured property owner, which resulted in a fire. Indian Harbor Insurance filed
an application for leave to appeal to the Supreme Court. On December 9, 2015,
the Supreme Court directed the Clerk to schedule oral argument on the
application. The parties were asked to address: “(1) whether the Total Pollution Exclusion
Endorsement is ambiguous, and (2) whether there was a discharge, dispersal,
seepage, migration, release, or escape of a pollutant that caused the
plaintiffs’ injuries.”