Insurer petitions Ninth Circuit for rehearing on pollution exclusion case


fire; wildfire; California; CA; smoke; pollution

By: Kristin Ingulsrud

Wesco Insurance has asked the Ninth Circuit to rehear a January 23, 2024 decision finding that it must defend its insured against a lawsuit arising from the 2018 Camp Fire. The opinion reversed the trial court’s decision that Wesco did not have a duty to defend Brad Ingram Construction as the policy’s pollution exclusion applied to the release of toxic dust caused by workers loading and unloading debris. 

The district court referred to multiple California cases concerning similar pollution exclusions, including MacKinnon v. Truck Ins. Exch., 73 P.3d 1205, 1212 (Cal. 2003), in which the California Supreme Court held that pollution exclusions should be analyzed by considering both the character of the injurious substance and whether exposure occurred due to a mechanism specified in the policy. Ingram appealed that judgment. 

The Ninth Circuit majority found a potential for coverage, in part, because no California case law was directly on point, stating that “California courts have noted that, in considering a matter of first impression, courts should be cautious of relieving an insurer of its duties under the policy.” Ortega Rock Quarry v. Golden Eagle Ins. Corp., 46 Cal. Rptr. 3d at 528 (quoting Pa. Nat’l Mut. Cas. Ins. Co. v. Triangle Paving, Inc., 973 F. Supp. 560, 566–67 (E.D.N.C. 1996)). The dissent disagreed and applied a multi-step analysis informed by MacKinnon to find that Wesco did not have a duty to defend. 

Wesco filed a Petition for Panel Rehearing on February 6, 2024. The Petition argues that the majority incorrectly applied MacKinnon and its progeny. The Petition also disputes the majority’s assessment that a duty to defend necessarily applies in cases of first impression. 

It remains to be seen if the Ninth Circuit will reevaluate its opinion. As the reviewing court of a summary judgment, the Ninth Circuit is indeed empowered to make a de novo review of Wesco’s duty to defend, including matters of first impression. 

For more information, please contact Kristin Ingulsrud at or your local FMG attorney.