In Georgia Stormwater is a Pollutant

Stormwater Alone—Even Uncontaminated—Constitutes a Pollutant

Post 5186

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In Auto-Owners Insurance Company v. Tabby Place Homeowners Association, Inc., et al., Civil Action No. 4:21-cv-346, United States District Court, S.D. Georgia (September 3, 2025) found no coverage.

The decision of the USDC presents a detailed judicial opinion on a declaratory judgment action involving Auto-Owners Insurance Company, Tabby Place Homeowners Association (HOA), and various property owners. The central issue concerned whether Auto-Owners had a duty to defend or indemnify the HOA in an underlying lawsuit brought by property owners alleging property damage from stormwater flooding linked to the HOA’s stormwater retention ponds.

BACKGROUND AND PARTIES INVOLVED

The underlying litigation involved property owners adjacent to the Tabby Place and Captain’s Cove Subdivisions on St. Simons Island, Georgia, alleging that the design, construction, and maintenance of stormwater retention ponds caused flooding and damage to their properties. The HOA acquired ownership of the retention ponds in September 2020, after the property owners filed their initial lawsuit in 2019. Auto-Owners issued two insurance policies to the HOA in April 2019: a Commercial General Liability (CGL) Policy and a Commercial Umbrella Policy, which are at issue in this declaratory judgment action. Auto-Owners sought a declaration that it has no duty to defend or indemnify the HOA based on policy exclusions, primarily the pollution exclusions, while the HOA and property owners contest this position.

INSURANCE POLICIES AND COVERAGE DISPUTE

The CGL Policy and Umbrella Policy provide coverage for property damage and personal injury but contain exclusions, including pollution exclusions. Both policies exclude coverage for property damage arising from the discharge, dispersal, seepage, migration, release, or escape of “pollutants.” The policies define “pollutant” broadly as “any solid, liquid, gaseous or thermal irritant or contaminant,” including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.

Auto-Owners contended that the stormwater flooding alleged in the underlying lawsuit qualifies as damage caused by pollutants under the pollution exclusions, thereby barring coverage. Auto-Owners also argued that the insurer’s duty to defend is triggered only if the claims potentially fall within coverage, and here the pollution exclusions unambiguously apply.

LEGAL ANALYSIS: WHETHER STORMWATER CONSTITUTES A POLLUTANT

The primary legal question is whether stormwater, including stormwater infiltrating into groundwater, qualifies as a “pollutant” under the policies’ pollution exclusions. The court reviewed relevant Georgia law and precedent, noting that courts have consistently held that stormwater alone—even uncontaminated—constitutes a pollutant under similar insurance exclusions. The court rejected arguments that stormwater must be contaminated to qualify as a pollutant or that rising groundwater is excluded from the pollution exclusion.

The court further found no meaningful distinction between direct stormwater runoff and stormwater that infiltrates through the ground and raises groundwater levels, as both scenarios involve the discharge or migration of stormwater, which is a pollutant under the policies. The court cited multiple precedents from Georgia federal courts supporting this interpretation.

PROCEDURAL POSTURE AND MOTIONS FOR SUMMARY JUDGMENT

Three motions for summary judgment were before the court. The court applied the standard that summary judgment is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

COURT’S HOLDING AND CONCLUSION

The court concluded that the pollution exclusions unambiguously barred coverage for the property damage claims alleged in the underlying action because the damage arises from the discharge and migration of stormwater, which is a pollutant under Georgia law and the policy definitions. As a result, Auto-Owners had no duty to defend or indemnify the HOA for the claims in the underlying lawsuit

This ruling clarified the application of pollution exclusions in insurance policies to stormwater-related property damage claims under Georgia law, affirming that stormwater is considered a pollutant regardless of contamination or mode of discharge.

ZALMA OPINION

Insurance is a contract. It defines the terms where it will respond with indemnity and the terms where it will not respond. In Georgia stormwater – even when it is not contaminated – is still a pollutant and therefore the insurer neither owed defense nor indemnity to its insured.

(c) 2025 Barry Zalma & ClaimSchool, Inc.

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