argument, it is significant in the context of the clause as a whole. The "pollutant" definition and accompanying examples suggest products or byproducts involved in the operation of equipment or machinery. Lead, as an ingredient of paint, falls far outside this definition.
Furthermore, while the insurance policies in question do not specify lead paint poisoning in the Pollution Exclusion clause, in a separate clause they do specify an exclusion for injuries related to asbestos poisoning. This fact is noteworthy by way of comparison, as asbestos is conceptually analogous to lead. Both are components of building materials, and neither is classified commonly as a "pollutant." This similarity is evidenced by the fact that courts have used similar analyses in interpreting pollution exclusion clauses for each. See, e.g., Lefrak Org., 942 F. Supp. at 954-55 (in lead paint poisoning case, relying on reasoning of asbestos case of Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 593 N.Y.S.2d 966, 609 N.E.2d 506 (1993)); see also Stoney Run, 47 F.3d at 38 (in dicta, grouping asbestos and lead paint poisoning together as part of class of injuries "resulting from direct contact with useful products"). That the parties in this case provided for a separate asbestos exclusion clause strongly suggests that lead paint is beyond the scope of the Pollution Exclusion clause.
Sphere Drake argues that the history of pollution exclusion clauses supports its argument that lead paint poisoning should be excluded. A thorough reading of that history leads to a different conclusion. From 1971 to 1982, pollution exclusion clauses were required by law for all liability policies in New York. Rapid-American, 80 N.Y.2d at 652. The purpose was to "assure that corporate polluters bear the full burden of their own actions spoiling the environment." Id. (quoting 1971 McKinney's Session Laws of N.Y., at 2633). Thus, from the beginning these clauses were concerned with environmental and industrial pollution.
The statutory requirement was removed in 1982 because many corporate polluters, unable to procure insurance, were simply going out of business when liability arose. Id. Nevertheless, several insurance companies continued to include a pollution exclusion clause in their policies. Id. These policies referred to pollution "into or upon land, the atmosphere or any body of water." Generalli-U.S., 612 N.Y.S.2d at 298. In 1986, the insurance industry redrafted the exclusion clause to replace the land, atmosphere or water reference with "at or from premises you own, rent or occupy." It is upon this change, present in the policy in this case, that Sphere Drake bases much of its argument.
Sphere Drake claims that the change in language evinces an intent by insurers to broaden the pollution exclusion to cover contaminants such as lead paint. However, this Court agrees with other courts that have addressed the amended language, see, e.g., Lefrak Org., 942 F. Supp. at 955; Generalli, 612 N.Y.S.2d at 298, in finding that the change of language did not exclude liability for lead-paint-related injury. First, the definition of pollutant in the post-amendment exclusion remains unchanged. There still is no reference to lead, paint, or lead-based paint. Moreover, the amended language does nothing to alter that part of the exclusion detailing "discharge, dispersal, release or escape." Prior to the 1986 amendment, it was this language, at least in part, that led courts to find that the pollution exclusion clauses did not encompass lead paint poisoning. See, e.g., Rapid-American, 80 N.Y.2d at 654. That this language was left fundamentally unchanged belies the argument that the 1986 amendment was meant to bring contaminants such as lead within the exclusion's purview. Finally, whatever the intent of the insurance industry in amending the exclusion clause language, the fact remains that the surviving language fails to exclude lead with adequate specicifity. At best, the language remains ambiguous, and this ambiguity is fatal to Sphere Drake's position. See Lefrak Org., 942 F. Supp. at 957; Ace Wire, 60 N.Y.2d at 398.
Based on the foregoing, the Court finds that the Pollution Exclusion clause in Sphere Drake's policies does not encompass the lead paint poisoning alleged in the Estrada suit. Therefore, Sphere Drake's motion for summary judgment based on that clause is denied. In addition, because no genuine issue of material fact as to the pollution exclusion clause remains, see Prevost, 722 F.2d at 968, the defendants are granted summary judgment on this issue.
Sphere Drake's motion for summary judgment declaring that it has no duty to defend or indemnify Y.L. Realty, et al. based on the notification and Pollution Exclusion clauses of the insurance policies is denied. The defendants are granted summary judgment on the issue of whether the Pollution Exclusion clause precludes coverage for the lead paint poisoning alleged in the Estrada suit.
BARBARA S. JONES
UNITED STATES DISTRICT JUDGE
Dated: White Plains, New York
October 17, 1997