News & Events
Illinois Supreme Court Adopts Skarzynski Marick Amicus Position That Regulatory Permits Have No Relevance to Enforcement of Pollution Exclusion
On January 23, 2026, in Grifith Foods International, Inc. v. National Union Fire Ins. Co., 2026 IL 131710, the Illinois Supreme Court unanimously resolved an important and closely watched pollution exclusion issue which had been certified by the United States Court of Appeals for the Seventh Circuit. The court concluded: “a permit or regulation authorizing emissions (generally or at any particular levels) has no relevance in assessing the application of a pollution exclusion within a standard-form commercial general liability policy.” The court expressly overruled appellate court decisions which had recognized an implied in law exception to the pollution exclusion for emissions within the levels allowed by governmental regulators’ permits, and had no difficulty finding that ethylene oxide emissions into the atmosphere fall squarely within a general liability policy’s pollution exclusion.
An amicus brief, filed by Michael M. Marick on behalf of Zurich American Insurance Company, explained that for decades insureds have been able to purchase specific pollution liability coverage to fill the gap created by GL policies’ pollution exclusions. The court noted the firm’s argument in support of the decision: “The pollution exclusion, standard in CGL policies, specifically precludes coverage for litigation costs arising from pollution harms as ordinarily understood, but that does not mean that coverage is categorically unavailable for claims arising from the discharge of pollutants. We note that insurance companies have developed entirely separate pollution liability policies for purchase, which allow the insurers to assess the risk of costly environmental litigation. Without speculating on the availability of such policies to any particular insureds, we emphasize that these separate policies generally provide the policyholders with coverage for environmental lawsuits.”
The Illinois Supreme Court’s answer to the certified question will significantly impact various pending coverage disputes and litigation arising from ethylene oxide exposure bodily injury claims and suits. The court’s decision also firmly supports Illinois’s enforcement of the plain meaning of insurance policy exclusions.
The opinion can be found here.
An amicus brief, filed by Michael M. Marick on behalf of Zurich American Insurance Company, explained that for decades insureds have been able to purchase specific pollution liability coverage to fill the gap created by GL policies’ pollution exclusions. The court noted the firm’s argument in support of the decision: “The pollution exclusion, standard in CGL policies, specifically precludes coverage for litigation costs arising from pollution harms as ordinarily understood, but that does not mean that coverage is categorically unavailable for claims arising from the discharge of pollutants. We note that insurance companies have developed entirely separate pollution liability policies for purchase, which allow the insurers to assess the risk of costly environmental litigation. Without speculating on the availability of such policies to any particular insureds, we emphasize that these separate policies generally provide the policyholders with coverage for environmental lawsuits.”
The Illinois Supreme Court’s answer to the certified question will significantly impact various pending coverage disputes and litigation arising from ethylene oxide exposure bodily injury claims and suits. The court’s decision also firmly supports Illinois’s enforcement of the plain meaning of insurance policy exclusions.
The opinion can be found here.