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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Arsonist Tried To Represent Himself, Failed, and Sought Habeas Relief
Post number 5357
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Karacson’s Arson for Profit Attempt Required Skill & Experience to Succeed
In Steve Ellis Karacson v. David Shaver, Warden, No. 25-1089, United States Court of Appeals, Sixth Circuit (May 20, 2026) Steve Karacson was convicted in Michigan state court of arson and insurance fraud after evidence showed he burned his own insured home. Investigators found multiple points of origin, gasoline odor, and evidence tying him to the scene, including cell-phone location data and a receipt showing he had purchased a gas can and gloves shortly before the fire.
FACTS
Karacson initially had appointed counsel, but his relationships with both appointed attorneys ...
Foolish to Repeatedly Disobey Court Orders
All That Remains For Trial Is Plaintiff’s Damages On Each Of These Claims And Establishing Proximate Causation Of Those Damages.
Post number 5348
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In Linh Wang v. Esurance Insurance Company, No. C24-0447-JCC, United States District Court, W.D. Washington, Seattle (May 1, 2026) John C. Coughenour, United States District Judge, found that throughout this case, culminating with its briefing on Plaintiff’s renewed motion and that Defendant has subjected Plaintiff to unnecessary motion practice for clearly discoverable information and made dubious representations (including to the Court).
FACTUAL BACKGROUND
This case involves an underinsured/uninsured motorist insurance bad faith claim arising from a 2017 motor vehicle collision. The plaintiff, Linh Wang, alleges that Esurance Insurance ...
The Right to Negotiate with Insurer is Not an Assignment of Claims
Post number 5347
Read the full article at https://www.linkedin.com/pulse/ambiguous-contract-repair-assignment-barry-zalma-esq-cfe-2xppc, see the full video at https://rumble.com/v79is1s-ambiguous-contract-to-repair-not-an-assignment.html and at and at https://zalma.com/blog plus more than 5300 posts.
Nebraska Requires an Actual Assignment to Allow Contractor to Sue Insurer
In Millard Gutter Company, a corporation doing business as Millard Roofing and Gutter v. Farmers Mutual Insurance Company of Nebraska, also known as Farmers Mutual Insurance, also known as Farmers Mutual, No. A-24-818, Court of Appeals of Nebraska (May 5, 2026) Millard sued Farmers as an assignee of Jane Anzalone who had hired Millard Gutter to repair the roof of her home and agreed to allow Millard Gutter to coordinate with her insurer, Farmers Mutual, concerning reimbursement for repairs authorized under her insurance policy.
FACTUAL BACKGROUND
In ...
Qui Tam Case Without Evidence to Prove Fraud Fails
Post number 5369
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In People Of The State Of California Ex Rel. Heath & Yuen, APC v. Silver Bird Auto Leasing, LLC et al., B342847, California Court of Appeals, Second District, Eighth Division (June 5, 2026) Heath & Yuen, APC defended parties in an automobile collision case involving a McLaren and a tour van. After that case settled for $25,000, the firm filed a qui tam action under California’s Insurance Frauds Prevention Act (IFPA) against Silver Bird Auto Leasing, LLC, X-Law Group, PC, and Filippo Marchino. The firm alleged three fraudulent acts in the underlying litigation:
1. the complaint falsely stated the McLaren was making a “legal turn,”
2. respondents produced a fraudulent repair bill/estimate, and
3. respondents failed to disclose Marchino’s GEICO insurance and its payment for repairs....
Full Faith and Credit Act Controlled
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Posted on June 9, 2026 by Barry Zalma
Post number 5368
Posted on June 9, 2026 by Barry Zalma
In Prime Insurance Company, Inc. v. Medicab Transportation, LLC, Jason Rhodes, and Dale Johnson v. Prime Insurance Company, Inc and Prime Property & Casualty Insurance, Inc. No. 2:24-cv-421-SPC-KRH, United States District Court, M.D. Florida, Fort Myers Division (June 3, 2026) Medicab, a paratransit company, bought two policies in 2021: a Business Auto Policy from PPCI and a Commercial Liability Policy from Prime. Both policies, as originally written, appeared to cover injuries arising from loading and unloading patients from Medicab vans.
After a patient, Margaret St. Aubin, fell while being unloaded from a van and suffered injuries, her Estate made a $1 million demand. Prime and its claims administrator concluded that the Commercial Policy’s loading/unloading language had been included by mutual mistake, because...
Full Faith and Credit Act Controlled
Read the full article at https://lnkd.in/evHXiiFE and at https://zalma.com/blog.
Posted on June 9, 2026 by Barry Zalma
Post number 5368
Posted on June 9, 2026 by Barry Zalma
In Prime Insurance Company, Inc. v. Medicab Transportation, LLC, Jason Rhodes, and Dale Johnson v. Prime Insurance Company, Inc and Prime Property & Casualty Insurance, Inc. No. 2:24-cv-421-SPC-KRH, United States District Court, M.D. Florida, Fort Myers Division (June 3, 2026) Medicab, a paratransit company, bought two policies in 2021: a Business Auto Policy from PPCI and a Commercial Liability Policy from Prime. Both policies, as originally written, appeared to cover injuries arising from loading and unloading patients from Medicab vans.
After a patient, Margaret St. Aubin, fell while being unloaded from a van and suffered injuries, her Estate made a $1 million demand. Prime and its claims administrator concluded that the Commercial Policy’s loading/unloading language had been included by mutual mistake, because...
