Gloria Willis and her small son, Lawrence, were tenants (from June 1989 until June 1991) in an apartment in Chicago owned by American National Bank as trustee for Katalina Stringfield. The Insurance Company of Illinois issued a general liability policy to Stringfield which was in force from October 2, 1990, through October 2, 1992.

In March, 1994, Gloria Willis filed suit on behalf of her son against several defendants, including Stringfield and the bank as trustee. Her complaint alleged that Lawrence had sustained lead poisoning due to his consumption of lead-based paint and plaster that had chipped, flaked, broken and fallen away from various exposed surfaces in the apartment.

In June the Insurance Company of Illinois filed this action for declaratory judgment that it had no duty to defend or indemnify its insured, Stringfield, in the suit filed by Willis. The company based its denial of liability upon the pollution exclusion in its policy, which stated the coverage did not apply "to bodily injury...arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants..." The policy defined "pollutants" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed."

The trial court granted the company's motion for summary judgment, and this appeal followed. The higher court believed the question before it was whether the lead-based paint was a "contaminant" or "irritant" and pointed out there was nothing before it to indicate that lead "irritates" and it is not usually believed to irritate. Therefore, the court based its decision on "contaminant." It concluded that a reasonably prudent person would not believe the lead-based paint was contaminated from the time it was made, nor was it later contaminated by a subsequent corruption by lead which caused the paint to become contaminated, such as would occur if lead from pipes corrupted a water supply.

The court concluded that the lead was purposefully incorporated into the paint by its maker, and the paint was intentionally applied to the insured premises. At that time, the paint was neither impure nor unwanted. Therefore, the pollution exclusion did not preclude coverage for personal injuries arising out of a minor's ingestion of lead. The minor's injuries in the underlying suit did not arise from the discharge, dispersal, release or escape of a "pollutant."

The summary judgment entered in the lower court in favor of the insurance company was reversed and remanded for further proceedings in accordance with this opinion.

Insurance Company of Illinois v. Katalina Stringfield et al., Appellants--Nos. 1-96-0347, 1-96-0344--Appellate Court of Illinois, First District, First Division--September 22, 1997--Rehearing denied October 28, 1997--685 North Eastern Reporter 2d 980.