In Georgia Stormwater is a Pollutant
Stormwater Alone—Even Uncontaminated—Constitutes a Pollutant
Post 5186
Read the full article at https://lnkd.in/gtM4Gii7, see the full video at https://lnkd.in/g6YyqeFN and at https://lnkd.in/gksd5iTd and at https://zalma.com/blog plus more than 5150 posts.
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.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to my substack at https://barryzalma.substack.com/subscribe
Go to X @bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://lnkd.in/gwEYk.
The Professional Claims Handler
Post 5218
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.
Claims Commandment X – Thou Shall Not Pretend to be a Lawyer
Some experienced and professional claims people know the law in their area of expertise better than most lawyers.
Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never try to be adjusters.
Claims Commandment XI – Thou Shall Empathize With the Claimant
Everyone presenting a claim is unhappy, disturbed, shocked, injured and needs help.
Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....
HOW TO CREATE AN EXCELLENCE IN CLAIMS HANDLING PROGRAM
See the full video at https://rumble.com/v70wb2i-the-zalma-philosophy-of-claims-handling-part-6.html and at https://youtu.be/tL5nDKPEs40 and at https://zalma.com/blog plus more than 5200 posts.
Post 5217
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.
The excellence in claims handling program should include, at a minimum:
A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
How to assist an insured in the insured’s obligation to ...
The Professional Claims Handler
Post 5216
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-5-barry-zalma-esq-cfe-jde8c, see the full video at https://rumble.com/v70q4x8-the-zalma-philosophy-of-claims-handling-part-5.html and at https://youtu.be/6b9tZQsEkB4, and at https://zalma.com/blog plus more than 5200 posts.
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
Standards to be a Professional Claims Adjuster
The Insurance claims professional should be a person who:
1. Can read and understand the insurance policies issued by the insurer.
2. Understands the promises made by the policy.
3. Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
4. Are competent investigators.
5. Have empathy and recognize the difference between empathy and sympathy.
6. ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
