For members of the College who cut their coverage teeth litigating asbestos or environmental pollution claims, present-day coverage disputes regarding PFAS liabilities will feel familiar. Indeed, most underlying PFAS claims and losses involve allegations of traditional industrial environmental pollution or, like asbestos claims, seek bodily injury damages pursuant to product liability theories. Further, just as the insurance industry began including asbestos exclusions and increasingly more restrictive pollution exclusions on their policies as environmental and asbestos losses mounted, insurers have begun including PFAS exclusions on their policies.
It appears that there have not been any reported PFAS coverage cases in which the court used a coverage trigger other than exposure. Given the long history of PFAS use in the United States, policyholders are seeking a defense and coverage pursuant to CGL policies going back to the 1970s and earlier. To date, there have been fewer than a dozen reported PFAS coverage decisions discussing substantive coverage issues, most of which focus on the applicability of standard pollution exclusions. This article provides an overview of those cases, and also provides the text of PFAS exclusions issued by the Insurance Services Organization and London Market Association in the last several years.
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"Déjà Vu All Over Again: PFAS CGL Coverage Update," by Seth D. Lamden was published in the ACCC Winter 2025 Newsletter.