Quanta Brownlee, et al., v. Liberty Mutual Fire Insurance Co. et al., Misc. No. 1,
September Term 2017. Opinion by Hotten, J.

CERTIFIED QUESTION OF LAW – PUBLIC POLICY – INSURANCE
LIABLILITY
The Court of Appeals of Maryland answered a certified question posed before it by the
United States District Court for the District of Maryland in the negative. In applying the
rule of lex loci contractus with respect to an insurance contract made in Georgia, the Court
of Appeals determined that application of Georgia’s interpretation of the pollution
exclusion clause in an insurance policy issued by the Liberty Mutual Insurance Company
to the Salvation Army as excluding coverage for bodily injuries resulting from the ingestion
of lead-based paint does not violate Maryland public policy.
United States District Court for the District of
Maryland
Case No. Civil No. JFM-16-3177                         IN THE COURT OF APPEALS
Argued: September 12, 2017
                                                             OF MARYLAND

                                                                Misc. No. 1

                                                           September Term, 2017

                                                   __________________________________

                                                      QUANTA BROWNLEE, ET AL.
                                                                         v.
                                                         LIBERTY MUTUAL FIRE
                                                         INSURANCE CO. ET AL.
                                                   __________________________________

                                                        Barbera, C.J.,
                                                        Greene,
                                                        Adkins,
                                                        McDonald,
                                                        Watts,
                                                        Hotten,
                                                        Getty,

                                                                   JJ.
                                                   __________________________________

                                                           Opinion by Hotten, J.
                                                             Watts, J., dissents.
                                                   __________________________________

                                                        Filed: December 18, 2017
       This Court has been asked to answer a certified question of law by the United States

District Court for the District of Maryland. The Maryland Uniform Certification of

Questions of Law Act, Maryland Code, §§ 12-601, 12-613 of the Courts and Judicial

Proceedings Article (“CJ”) empowers this Court to “answer a question of law certified to

it by a court of the United States…if the answer may be determinative of an issue in a

pending litigation in the certifying court and there is no controlling appellate decision,

constitutional provision, or statute of this State.” CJ § 12-603.

       The United States District Court for the District of Maryland has asked us to answer

the following question:

              Would application of Georgia’s interpretation of the pollution
       exclusion contained in the insurance policy issued by Liberty Mutual
       Insurance Company to the Salvation Army as excluding coverage for bodily
       injuries resulting from the ingestion of lead-based paint violate Maryland
       public policy?
We answer this question in the negative. For reasons to be explained, we hold that

application of Georgia law concerning the pollution exclusion in the policy under the

principle of lex loci contractus does not violate Maryland public policy.

                   FACTUAL AND PROCEDURAL BACKGROUND1




       1
        These facts are adopted from the factual allegations set forth in Appellants’ and
Appellees’ briefs.
       Quanta Brownlee, Jamal Brownlee, Shakeira Jones, Daquane2 Jones, and

De’Aunttae Jones (collectively “Appellants”) were exposed to lead-based paint at a

property, owned by the Salvation Army, located at 1114 North Calvert Street in Baltimore

City, Maryland.

       In 1995, Appellants Quanta Brownlee and Jamal Brownlee resided at the property,

which contained deteriorated lead-based paint. Appellants sustained permanent brain

damage and elevated blood lead levels as a result of the exposure to lead-based paint. In

2001, Shakeira Jones, Daquane Jones, and De’Aunttae Jones also resided at the property.

Shakeira Jones, Daquane Jones, and De’Aunttae Jones also sustained permanent brain

damage and elevated blood lead levels as a result of the exposure to lead-based paint.

       Appellants named the Salvation Army as a defendant in their lead-based paint

related tort claims in a complaint that is now pending in the United States District Court

for the District of Maryland.3 In addition to alleging that there was no insurance available

in connection with Appellants’ claim, the Salvation Army asserted that it was immune from

liability on charitable immunity grounds, unless and until Liberty Mutual indemnified it as

responsible for Appellants’ injuries and damages. The parties do not dispute that Liberty

Mutual issued comprehensive general liability insurance policies (“the Liberty Mutual



       2
        In Appellants’ brief, Daquane Jones’ name is spelled inconsistently, sometimes
being referenced as Dequane Jones. The remainder of this Opinion will reference the
Appellant as Daquane Jones.
       3
        Appellants brought their action in the Circuit Court for Baltimore City. Liberty
Mutual removed the action to the United States District Court for the District of Maryland.
                                             2
insurance policies”) to the Salvation Army, or that these policies were purchased in

Georgia, and were effective from October 1, 1993 until October 1, 2001.

       Notably, the policies do not include lead-based paint exclusion provisions, but the

policies do include pollution exclusion provisions. The pollution exclusion provision is

written as such:

       This insurance does not apply to:
              (f) Pollution
                      (1) “Bodily injury” or “property damage” arising out of the
              actual, alleged or threatened discharge, dispersal, seepage, migration,
              release or escape of pollutants:
                     (a) At or from any premises, site or location which is or was at
              any time owned or occupied by, or rented or loaned to any insured ….
Complaint, Exhibit 4 at 82. “Pollutants” are defined in each of the Liberty Mutual insurance

policies as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke,

vapor, soot, fumes, acids, alkalis, chemical or waste.” Id. at 83.

       Appellants seek affirmation from this Court that Liberty Mutual is obligated to

indemnify the Salvation Army and defend against claims brought by the Appellants.

Appellee Liberty Mutual asserts that it is under no obligation to indemnify and defend

Appellee Salvation Army because: (1) the Liberty Mutual insurance policies were formed

in Georgia, thus implicating the legal principle of lex loci contractus i.e., the law governing

the contracts is the law of the place where the contract is formed, and (2) pursuant to

Georgia law, the pollution exclusion provision in the insurance policies excluded coverage

for bodily injuries resulting from exposure to lead-based paint.



                                              3
       The Supreme Court of Georgia has held that bodily injuries allegedly resulting from

the ingestion of lead-based paint are within the pollution exclusion. See Georgia Farm

Bureau of Mut. Ins. Co. v. Smith, 298 Ga. 716, 784 S.E.2d 422 (2016). The language of the

pollution exclusion clause in Georgia Farm is identical to the language of the pollution

exclusion clause in the Liberty Mutual insurance policies.

       Liberty Mutual has moved to dismiss the complaint on the ground that Maryland

courts follow the doctrine of lex loci contractus in choosing the applicable law,

Cunningham v. Feinberg, 441 Md. 310, 326, 107 A.3d 1194, 1204 (2015); Allstate Ins. Co.

v Hart, 327 Md. 526, 529, 611 A.2d 100, 101 (1992) and that, under Georgia law, the

insurance policy does not cover claims for lead-based paint poisoning. To the contrary,

Appellants contended in the federal district court that Maryland courts would not apply

Georgia’s interpretation of the pollution exclusion clause because it violates Maryland’s

public policy. The United States District Court for the District of Maryland asks us resolve

which law applies, so that the federal court may decide the merits on Liberty Mutual’s

Motion to Dismiss. This Court must answer whether application of Georgia’s decision in

Georgia Farm violate Maryland’s public policy.

                                        DISCUSSION

 I.    Lex Loci Contractus

       It is not in dispute that the doctrine of lex loci contractus is applicable here. Both

parties agree that lex loci contractus is the proper lens through which this Court should

analyze their claims. Maryland has long recognized the doctrine of lex loci contractus. See


                                             4
De Sobry v. De Laistre, 2 H. & J. 191, 191 (1807) (applying the laws of the country where

the terms of the contract were created). When this Court applies lex loci contractus,

typically either the validity or enforceability of a contract is at issue. Cunningham, 411 Md.

at 327–28, 107 A.3d at 1205. The “doctrine requires that, when determining the

construction, validity, enforceability, or interpretation of a contract, we apply the law of

the jurisdiction where the contract was made.” Id. at 326, 107 A.3d at 1204. Therefore, the

substantive application of the law to the contract between the parties is subject to the

enforcement of the jurisdiction where the contract was formed. Id.

       The rule of lex loci contractus, however, has a narrow exception. Maryland law

still governs when a contractual provision is contrary to a strong Maryland public policy.

“Nevertheless, for Maryland public policy to override the lex loci contractus rule, the

public policy must be very strong and not merely a situation in which Maryland law is

different from the law of another jurisdiction.” Hart, 327 Md. at 530, 611 A.2d at 102. See

Lab. Corp. of Am. v. Hood, 395 Md. 608, 620, 911 A.2d 841, 848 (2006) (opining that the

lex loci contractus principle is “not inflexible” and that it will not govern a contract

provision that is against Maryland public policy) (internal citations omitted); Cunningham,

441 Md. at 337, 107 A.3d at 1211 (explaining that this Court has “long recognized an

exception to the application of lex loci contractus: we refuse to apply the doctrine when

doing so would be ‘contrary to a strong public policy of this State[ ]’”) (quoting Am.

Motorists Ins. Co. v. ARTRA Grp., Inc., 338 Md. 560, 573, 659 A.2d 1295, 1301 (1995));

Bethlehem Steel Corp. v. G.C. Zarnas & Co., 304 Md. 183, 188–89, 498 A.2d 605, 608


                                              5
(1985) (recognizing the choice of law rule which has been consistently recognized by this

Court, “lex loci contractus does not apply to a contract provision which is against Maryland

public policy[ ]”). Thus, absent a determination that Georgia’s law violates a strong

Maryland public policy, Georgia’s law applies.

II.    Authority on Pollution Exclusion Clauses

       Both Appellants and Appellees agree that, under Georgia case law, the Liberty

Mutual insurance policies in question do not cover claims for lead-based paint poisoning.

Because the Liberty Mutual insurance policies were issued in Georgia, and the lex loci

contractus doctrine is applicable, Georgia’s law must be examined first. The Supreme

Court of Georgia examined a pollution exclusion provision using identical language as the

insurance contract currently before this Court. Georgia Farm, 298 Ga. at 717, 784 S.E.2d

at 423. See Id. (defining a “pollutant” as “any solid, liquid, gaseous or thermal irritant or

contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste[ ]”).

       In Georgia Farm, the plaintiff, a residential tenant, sued her landlord for injuries

sustained when plaintiff’s daughter allegedly ingested lead from deteriorating lead-based

paint in the rented house. Id. The landlord insured the residence through a general

commercial liability insurance policy issued by Georgia Farm Bureau Mutual Insurance

Company (“Georgia Farm”). Following an insurance claim initiated by the landlord,

Georgia Farm filed a declaratory judgment action against Plaintiff and the landlord.

Georgia Farm argued that the daughter’s lead-based poisoning injuries were not covered

by the policy because of a pollution exclusion provision, thus discharging Georgia Farm’s


                                             6
obligation to defend or indemnify the landlord in the lawsuit. The Supreme Court of

Georgia held that lead present in paint “unambiguously qualifies as a pollutant and that the

plain language of the policy’s pollution exclusion clause” removed plaintiff’s claims

against her landlord from coverage. Id. at 721, 784 S.E.2d at 426. The Georgia Farm Court

discussed this Court’s analysis in Sullins v. Allstate Ins. Co. when reversing the Court of

Appeals of Georgia’s determination that Georgia Farm had a duty to defend the landlord. 4

Sullins v. Allstate Ins. Co, 340 Md. 503, 667 A.2d 617 (1995); Georgia Farm, 298 Ga. St

716, S.E.2d at 422 (2016); Smith v. Georgia Farm Bureau Mut. Ins. Co., 331 Ga. App. 780,

786, 771 S.E.2d 452, 457 (2015), cert. granted (July 6, 2015), rev’d, 298 Ga. 716, 784

S.E.2d 422 (2016), and vacated, 337 Ga. App. 300, 789 S.E.2d 193 (2016).

       In Sullins, we reviewed an insurance policy’s pollution exclusion clause. 340 Md.

at 509, 667 A.2d at 620. The insurance policy language at issue in Sullins differed from the

language in Appellants’ insurance policies. In Sullins, the Allstate Insurance Company

(“Allstate”) issued a Deluxe Homeowners Policy to Reverend D. Paul Sullins and Patricia

H. Sullins. Id. at 506–07, 667 A.2d at 618. In Sullins’ policy, under the heading “Losses

We Do Not Cover,” the policy contained the following language:

       We do not cover bodily injury or property damage which results in any
       manner from the discharge, dispersal, release, or escape of:

              a) vapors, fumes, acids, toxic chemicals, toxic liquids or toxic gasses;

              b) waste materials or other irritants, contaminants or pollutants.


       4
          The Court of Appeals of Georgia is Georgia’s intermediate appellate court.
WELCOME TO THE COURT OF APPEALS OF GEORGIA, http://www.gaappeals.us/
(https://perma.cc/S6FD-LS43) (last visited December 15, 2017).
                                             7
Id. We determined that “contaminants” and “pollutants” are susceptible to two different

interpretations by a lay person. Id. at 509, 667 A.2d at 620. One interpretation of the two

terms could reasonably encompass lead-based paint, while another could refer to

environmental contaminants or pollutants. Id. However, we noted that “[to] be sure that

lead paint poisoning claims were excluded from coverage, [the insurer] could have

included a provision…explicitly excluding such claims.” Id. at 518 n.3, 667 A.2d at 624

n.3. The Sullins Court ruled that the policy language was ambiguous and did not remove

the insurer’s duty to defend the lead-based paint poisoning action. Id. at 518, 667 A.2d at

624.

       Georgia’s intermediate appellate court, the Georgia Court of Appeals, cited Sullins

for the proposition that if an insurer “had intended to exclude injuries caused by lead-based

paint from coverage in the policy at issue in this case it was required, as the insurer that

drafted the policy, to specifically exclude lead-based paint injuries from coverage.” Smith,

331 Ga. App. at 785, 771 S.E.2d at 456 (footnote omitted) (internal citations omitted).

Georgia’s intermediate appellate court went on to explain that, as in Sullins, “an insured

could reasonably have understood the provision at issue to exclude coverage for injury

caused by certain forms of industrial pollution, but not coverage for injury allegedly caused

by the presence of leaded materials in a private residence.” Id. However, the Supreme Court

of Georgia disagreed that the insurance policy terms at issue here created the same

ambiguities. Georgia Farm, 298 Ga. at 716, 784 S.E.2d at 423. Like in Sullins, the Georgia

Farm court considered that if “a policy provision is susceptible to more than one meaning,

even if each meaning is logical and reasonable, the provision is ambiguous and….will be

                                             8
construed strictly against the insurer/drafter and in favor of the insured.” Georgia Farm,

298 Ga. at 719, 784 S.E.2d at 424–25 (internal citations omitted). The Georgia Farm court

determined that the pollution exclusion clause was unambiguous and held that the “policy

contains an absolute pollution exclusion clause which precludes recovery for bodily injury

or property damage resulting from exposure to any pollutant.” Id. at 719, 784 S.E.2d at

425.

       Our decision in Sullins, and Georgia’s application of the pollution exclusion clause

in Georgia Farm can coexist. The law of our State and Georgia’s law are not so contrary

because the insurance policy terms at issue here, and the terms at issue in Sullins, are

different. Sullins required us to interpret the pollution exclusion clause because the terms

were undefined and ambiguous, and thus susceptible to multiple interpretations. That is not

the case here. The Liberty Mutual insurance policies define ‘Pollutants’ as “any solid,

liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes,

acids, alkalis, chemical or waste.” See supra Complaint, Exhibit 4 at 83. The Sullins Court

took issue with ascertaining the intention of the parties because the parties did not define

the pollution exclusion’s terms as they have here. Sullins, 340 Md. 503 at 514, 667 A.2d at

622. The Sullins Court was then forced to analyze the historical context and the parties’

intentions to determine the contract’s meaning. Id. However, lex loci contractus does not

require us to interpret the terms of the Liberty Mutual insurance policies, or determine the

intent of the parties, because Georgia’s Court already has determined that is not a relevant

line of analysis here. Georgia Farm, 298 Ga. at 720, 784 S.E.2d at 425.



                                             9
       The Sullins Court was required to perform a full review of pollution exclusion clause

history to ascertain the parties’ intentions. Similarly to the Supreme Court of Georgia, we

noted that insurance exclusion clauses in their infancy generally applied to accidental

contamination. Sullins, 340 Md. at 513–15, 667 A.2d at 622–23; Georgia Farm, 298 Ga.

at 719, 784 S.E.2d at 425. Both Sullins and Georgia Farm acknowledged that in the mid-

1980s, the insurance industry adopted the “absolute pollution exclusion,” which denied

coverage for bodily injury arising from pollutants. Sullins, 340 Md. at 514–15, 667 A.2d

at 622; Georgia Farm, 298 Ga. at 719, 784 S.E.2d at 425. At this point, the discussion in

Georgia Farm and Sullins diverges. Sullins decided that the insurance industry’s absolute

pollution exclusion, which denied coverage for “bodily injury or property damage arising

out of the actual, alleged or threatened discharge, release, or escape of pollutants” and

defined “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant

including smoke, vapor, soot, fumes, acids, alkalies, chemicals and waste[,]” were

environmental terms of art, and thus the parties intended environmental hazards, and not

lead-based paint, to be excluded. Sullins, 340 Md. at 515, 667 A.2d at 622.

       Georgia Farm relied on its past decision in Reed v. Auto-Owners Ins. Co., 284 Ga.

286 667 S.E.2d 90 (2008), for the proposition that the Court should not “adopt an approach

which considered the purpose and historical evolution of pollution exclusions before

looking to the plain language of the clause itself.” Georgia Farm, 298 Ga. at 720, 784

S.E.2d at 425. In Reed, the plaintiff claimed that she was poisoned by the release of carbon

monoxide inside her rental home. Reed, 284 Ga. at 288, 667 S.E.2d at 92. The insurance

policy’s definition of “pollutant” in Reed is the same definition provided for in Georgia

                                            10
Farm, and the same definition included in the Liberty Mutual insurance policies at issue

here. The Supreme Court of Georgia read that the plain language of the “pollutant”

definition was “matter, in any state, acting as an ‘irritant or contaminant[.]’” Georgia Farm,

298 Ga. at 720, 784 S.E.2d at 425 (quoting Reed, 284 Ga. at 288, 667 S.E.2d at 92).

Specifically, the Court noted that focusing on extrinsic sources of interpretation is what

leads to the ambiguity in the pollution exclusion clause where none exists. Georgia Farm,

298 Ga. at 721, 784 S.E.2d at 426.

       Maryland Courts similarly first apply the terms of the insurance contract itself. Litz

v. State Farm Fire & Cas. Co., 346 Md. 217, 224, 695 A.2d 566, 569 (1997) (quoting

Bausch & Lomb v. Utica Mutual, 330 Md. 758, 779, 625 A.2d 1021, 1031 (1993). Then,

“[w]e construe insurance policies as a whole to determine the parties’ intentions.” Litz, 346

Md. at 224, 695 A.2d at 569 (internal citations omitted). The Georgia Farm court decided

not to interpret the insurance contract’s terms, and rather decided Georgia Farm on the

narrower grounds of applying the contract’s plain language. Georgia Farm, 298 Ga. at 720,

784 S.E.2d at 425. The Sullins Court was not afforded that luxury, because the term

“pollutant” was not defined in the parties’ contract. Had the term been defined, the Sullins

Court may not have examined the historical context and come to a different conclusion,

but that is not an issue for this Court to currently decide.

       The case law of Maryland and Georgia on pollution exclusion clauses is not so

contrary to overcome lex loci contractus. Sullins required us to interpret the contract’s

language. We are not charged with such a task here. Rather, we are asked to answer the

question of whether Maryland’s current public policy is so contrary to Georgia’s decision

                                              11
in Georgia Farm, which, even in light of our discussion in Sullins, is no. We have

consistently held “that the lex loci contractus principle is not inflexible” and thus, Georgia

Farm’s holding will apply to Appellants’ claims, unless the exception applies, because

such a result would violate Maryland’s public policy. Hood, 395 Md. at 620, 911 A.2d at

848. Because Georgia Farm did not interpret the terms that we determined had

environmental implications, the two cases are not so at odds to override Georgia’s law. To

interpret Sullins to mean that Maryland’s public policy strongly requires lead-based paint

exclusions to be explicitly and unambiguously identified, sufficient to overcome lex loci

contractus, would be inapposite to the express direction from the legislature and the

precedent of this Court. See Maryland Code, § 19-704(c) of the Insurance Article

(permitting insurers to include lead hazard coverage exclusions in insurance policies);

Sullins, 340 Md. at 518, 667 A.2d at 624 (opining that “conflicting interpretations of the

policy language in judicial opinions is not determinative[ ]”). For the lex loci contractus

doctrine to be set aside, Maryland’s public policy “must be very strong and not merely a

situation in which Maryland law is different from the law of another jurisdiction.”

Cunningham, 441 Md. at 337–38, 107 A.3d at 1211. For reasons to be explained,

Maryland’s public policy is not contrary to Georgia Farm, thus Georgia’s law applies.

III.   Maryland’s Public Policy

       Appellants contend that Georgia’s interpretation of the pollution exclusion

provision should not apply because it would violate Maryland’s public policy concerning

the protection of victims of childhood lead-based paint poisoning. This Court has long


                                             12
recognized that declaration of the State’s public policy is the function of the legislative

branch of the government. Felder v. Butler, 292 Md. 174, 183, 438 A.2d 494, 499 (1981);

see Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 36, 944 A.2d 1122, 1135

(2008) (commenting “[i]t is, after all, the General Assembly that sets the public policy of

the State….”); Rausch v. Allstate Ins. Co., 388 Md. 690, 715, n. 13, 882 A.2d 801, 816, n.

13 (2005) (explaining the General Assembly that “sets the public policy of the State,

especially economic and social policy[ ]”); Frey v. Frey, 298 Md. 552, 562, 471 A.2d 705,

710 (1984) (internal citations omitted) (opining that the “declaration of public policy is

normally the function of the legislature,” and to evaluate the public policy we look to

statutory provisions); Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 460,

456 A.2d 894, 903 (1983) (recognizing that the declaration of the public policy of

Maryland is normally the function of the General Assembly).

       Demonstration of a strong public policy, sufficient to warrant an exception to

application of another jurisdiction’s law under lex loci contractus, is usually evidenced by

explicit legislative action. Bethlehem Steel Corp. v. G.C. Zarnas & Co., 304 Md. 183, 190,

498 A.2d 605, 608 (1985). Even though evidence of Maryland’s public policy may be

found through explicit legislative determinations, “explicit legislative language [is] not

required always in order to reach a conclusion that a Maryland Code provision represents

strong public policy. On occasion, we have given some weight to evolving public policy.”

Cunningham, 441 Md. at 340, 107 A.3d at 1213. We now turn to examine Maryland’s

lead-based paint and pollution exclusion initiatives to determine whether either of these are



                                             13
currently evolving areas of public policy that would merit abandonment of the lex loci

contractus choice of law doctrine in this instance.

          A. Maryland’s Public Policy Approach to Lead-Based Paint Abatement

       Neither this Court, nor this State, is blind to the deleterious and devastating effects

of childhood lead-based paint poisoning. Appellants thoroughly discuss the historical,

legislative, judicial, and scientific-related initiatives concerning the safety and protection

of victims of lead-based paint poisoning. Appellants assert Maryland’s response to the

public health issue is evidence of “strong and steadfast” public policy. However,

Appellants misunderstand that a response to a public health issue does not affirmatively

answer the very narrow question posed before us: whether Georgia’s application of

pollution exclusion clauses clearly violates Maryland’s public policy.

       Historically, Maryland has developed a series of legislative policies aimed at

protecting Maryland’s children against the severe and permanent effects of lead-based

paint poisoning by eradicating lead-based paint in homes. These legislative policies are

indicative of a statewide commitment to eliminating lead-based paint from homes. These

policies are not evolving toward requiring insurers to cover lead-based paint related claims.

Appellants’ contentions that Maryland’s steadfast and continued efforts to pass laws geared

towards removing lead-based paint from homes, do not necessarily translate into a

demonstration of a strong state public policy of barring a pollution exclusion provision

sufficient to override Georgia’s law.




                                             14
       Maryland has taken a strong approach in protecting children from poisoning by

lead-based paint containing substances5 through legislation aimed at abatement6 of lead-

based paint. Childhood lead-based paint poisoning has been a public issue of national

concern for the last fifty years. See Richard Rabin, Warnings Unheeded: A History of Child

Lead Poisoning, 79 Am. J. Pub. Health, 1668, 1668 (Dec. 1989). Beginning in the mid-

1920s, childhood lead-based paint poisoning gained broader recognition as a common

childhood disease, originally believed to be a condition solely stemming from lead-painted

surfaces in the home. Id. However, later research uncovered that major sources of lead-

based paint were also in “toys, furniture, porch railings, and window sills…” of many



       5
        A ‘Lead containing substance’ means:
      (1) Any paint, plaster, or surface encapsulation material containing more than
      0.50 percent lead by weight calculated as lead metal in the dried solid or more
      than 0.7 milligrams lead per square centimeter as measured by an X-ray
      fluorescence analyzer; or
      (2) Such other standards consistent with an applicable federal definition as
      the Department may set by regulation.
Maryland Code, § 6-1001(c) of the Environmental Article.
       6
        By statute, abatement is defined as follows:
      (b) “Abatement” means a set of measures that eliminate or reduce lead-based
      paint hazards in residential, public, or commercial buildings, bridges, or
      other structures or superstructures in accordance with standards established
      by the Department which may include:
      (1) The removal of lead-based paint and lead-contaminated dust, the
      containment or encapsulation of lead-based paint, the replacement or
      demolition of lead-painted surfaces or fixtures, and the removal or covering
      of lead-contaminated soil;
      (2) All preparation, cleanup, disposal, and postabatement clearance testing
      activities associated with these measures; and
      (3) The renovation, repair, and painting of a lead-containing substance in a
      residential, public, or commercial building built before 1978.
Maryland Code, § 6-1001(b) of the Environmental Article.
                                            15
residences. Id. at 1669. Children, who typically exhibit hand-to-mouth activity, can ingest

either lead-based paint chips that have flaked, or lead dust that becomes present due to

normal wear and tear, home repair, or renovation. Jane E. Schukoske, Lead Paint and the

Warranty of Habitability in Pre-1950 Rental Housing: Maryland’s Lead Poisoning

Prevention Program Creates A Presumption of the Presence of Lead Paint, 4 U. Balt. J.

Envtl. L. 22, 29 (1994). Consumption of lead-based paint flakes or dust, even in small

amounts, may result in poisoning. Id. Permanent injuries caused by lead-based paint

poisoning include cognitive impairments, learning disabilities, and developmental delays.

Md. Gen. Assemb. Rep. of the Lead Paint Poison. Comm’n. at 2 (May 5, 1994). Often,

these permanent injuries that manifest during childhood subsequently impact a person’s

ability to function as an adult. Id.

       In many ways, Maryland’s approach to abating lead-based paint began in Baltimore

City, which has been particularly devastated by lead-based paint poisoning. Commencing

in 1935, Baltimore City embarked on a series of steps to aid in the diagnoses and prevention

of childhood lead-based paint poisoning. See George W. Schucker, et. al., Prevention of

Lead Paint Poisoning Among Baltimore Children, 80 Pub. Health Rep. 969, 969 (Nov.

1965). At the first signs of large-scale lead-based paint poisoning in children, Baltimore

began offering free access to physicians and hospitals for determination of blood lead levels

in children. Id. By 1949, Baltimore City assigned a public health nurse to investigate lead-

based paint reports. Id. Baltimore initiated laboratory studies, through which patients’

homes were visited and paint samples were taken for testing. Id. Baltimore distributed



                                             16
pamphlets and aired television and radio broadcasts, to inform the public of the dire

consequences and risks of childhood ingestion of lead-based paint. Id.

       In 1951, Baltimore became the first city in the United States to prohibit the use of

lead-based paint through city regulation, which was later codified in Baltimore’s City

Code. Id.; Baltimore City Rev. Code, HEALTH, § 5-402; (City Code, 1976/83, art. 11,

§72.) (Ord. 99-548.) Even with this regulation, a series of surveys initiated in 1957 to assess

the prevalence of lead-based paint in Baltimore homes, revealed that between fifty-eight to

seventy percent of homes contained lead-based paint. Schucker, supra at 970. Although

Baltimore City was a pioneer in its response to the lead-based paint issue, children in

Baltimore City were at very high-risk for lead poisoning compared to the nation as a whole.

Joanne Pollak, The Lead-Based Paint Abatement Repair & Maintenance Study in

Baltimore: Historic Framework and Study Design, 6 J. Health Care L. & Pol’y 89, 92

(2002).

       Recognizing a public health crisis, Maryland responded with legislation to abate the

frequency of poisoning in children by removing lead-based paint in homes. Although a

positive development, the General Assembly did not react to the lead-based paint issue

until twenty years after Baltimore City. In 1971, the General Assembly prohibited use of

lead based paint statewide on “any interior surfaces; on any exterior surfaces where

children may commonly be exposed; on any porch of any dwelling or….any article that is

intended for household use.” 1971 Md. Laws, Ch. 495; Maryland Code, § 6-301 of the

Environmental Article (“EN”) (1982, 2013 Repl. Vol.). The statewide prohibition of lead-


                                              17
based paint was still in many ways a progressive step, with evidence suggesting that

Maryland was one of only four states that had statutorily prohibited lead-based paint use

by 1974.7 William F. Greer, Jr, Lead Paint Poisoning--Municipal, State, and Federal

Approaches, 7 Urb. L. Ann. 247, 256 (1974). It was not until 1978 that the United States

Consumer Products Safety Commission prohibited the use of lead in house paint

throughout the nation. 16 C.F.R. § 1303.1. Later codified in the United States Code,

Congress found that the Federal response to the national crisis was severely limited but

identified a national goal of eliminating lead-based paint hazards in housing. 42 U.S.C.A.

§ 4851. However, banning lead-based paint at the national, state, and local level did not by

itself eliminate the root of the issue: the stock of existing housing that still contained lead-

based paint. Pollak, supra at 91.

       Maryland’s public policy reflects an effort to abate lead-based paint poisoning by

stopping its use in older buildings that contained lead-based paint. Maryland’s statutory

scheme creates incentives and compliance driven initiatives requiring homeowners,

namely landlords, to remove lead-based paint from their property. Regulatory programs

incentivize landlords to remove lead-based paint in residential properties, often by

assessing fines or civil damages for noncompliance. Jennifer Tiller, Easing Lead Paint

Laws: A Step in the Wrong Direction, 18 Harv. Envtl. L. Rev. 265, 268–69 (1994). Without



       7
        Cal. Civ. Code Ann. § 1942 (West 1954); La. Civ. Code Ann. art. 2694 (West
1954); Mont. Rev. Codes Ann. § 42-202 (1947); N.D. Cent. Code § 47-16-13 (1960); Okla.
Stat. Ann. tit. 41, § 32 (1954); S.D. Compiled Laws § 43-32-9 (1967). William F. Jr.
Greer, Lead Paint Poisoning--Municipal, State, and Federal Approaches, 7 Urb. L. Ann.
247, 256 n. 52 (1974).
                                              18
the threat of civil liability, it would be in the landlord’s pecuniary interest to let society

bear the cost of childhood lead poisoning. Id. Since Maryland banned lead-based paint in

homes in 1971, the General Assembly has passed a series of laws with the purpose of

removing lead-based paint from homes, while ensuring that landlords are compliant with

state prescribed initiatives.

       Maryland took another step to abate lead-based paint in homes by creating the Lead

Poisoning Prevention Program.8 See generally 1994 Maryland Laws Ch. 114 (H.B. 760);

EN §§ 6-802, 6-807. The purpose of the program is “to reduce the incidence of childhood

lead poisoning, while maintaining the stock of available affordable rental housing.” EN §

6-802. Through the program, landlords are required to register affected property.9 Property

owners then must satisfy certain risk reduction standards, and pass a test for lead-




       8
          The General Assembly of Maryland created the Accreditation of Lead Paint
Abatement Services. See generally LEAD PAINT ABATEMENT SERVICES—
ACCREDITATION, 1993 Maryland Laws Ch. 296 (H.B. 306); EN § 6-1004(b)(2). The
Lead Accreditation Fund was comprised of government funds or grants to assist with
the “development, establishment, administration, and education and enforcement activities
of the lead paint abatement services accreditation program[.]” Id.
       9
          Affected property, requiring registration is defined in section 6-801(b) as follows:
 (b)(1) “Affected property” means:
        (i) A property constructed before 1950 that contains at least one rental dwelling unit;
        (ii) On and after January 1, 2015, a property constructed before 1978 that contains
        at least one rental unit; or
        (iii) Any residential rental property for which the owner makes an election under §
        6-803(a)(2) of this subtitle.
(2) “Affected property” includes an individual rental dwelling unit within a multifamily
rental dwelling.
(3) “Affected property” does not include property exempted under § 6-803(b) of this
subtitle. Id. § 6-801.
                                              19
contaminated dust provided that flaking paint has been removed or repainted on the exterior

and interior surfaces. Id. § 6-815. The property owner has to satisfy the statutorily

prescribed standards and pass the lead-contaminated dust test before each occupancy

turnover. Id. By statute, a State inspector must verify the property owner’s compliance with

the statute. Id. The Lead Poisoning Prevention Commission was tasked with measuring the

law’s ability to protect children from lead poisoning and lessen risks to responsible owners.

Id. § 6-810. See generally Schukoske, supra (discussing statutory nuances of the Lead

Poisoning Prevention Program).

       The General Assembly further elucidated through § 19-704 of the Insurance Article

that that excluding lead-based paint as a pollutant does not run contrary to this State’s

public policy.10 1996 Maryland Laws Ch. 11 (H.B. 11); Maryland Code, § 19-704 of the

Insurance Article (“IN”). Section § 19-704(c) provides that “whenever an authorized

insurer issues or renews a policy for an affected property, the authorized insurer may

include in the policy a lead hazard coverage exclusion.” IN § 19-704(c). The statute’s




       10
          In 1994, as part of the Lead Poisoning Prevention Program, the General Assembly
adopted §§ 734 through 737, Article 48A, of the Insurance Code. As originally enacted,
Md. Code Art. 48A, § 735(a) provided: “[n]otwithstanding subsection (f) of this section,
upon the inception or renewal of a policy, an insurer may provide for a lead hazard
exclusion with respect to a policy of insurance covering an affected property.” Md. Code
1957, Art. 48A, § 735(a). Section 19-704 was created through the Maryland 1996 Session
Laws following a recodification of the Insurance Article, but subsection (c) traces the
language in article 48A, § 735(a). See 1996 Maryland Laws Ch. 11 (H.B. 11) (explaining
“[t]his section is new language derived without substantive change from former Art. 48A,
§§ 734(e)(2) and 735(a) through (f)[ ]).

                                             20
application to “affected properties,”11 similarly to the language in EN § 6-801 defined

supra note 9, primarily focuses on stock housing built prior to 1978 that may contain lead-

based paint. The General Assembly expressly indicated that insurers can exclude lead-

based paint related claims from insurance policies. Thus, the General Assembly had the

opportunity and means to consider lead-based paint related insurance issues. It then follows

that if the General Assembly considered the maximum of explicitly permitting insurers to

exclude coverage of lead-based paint claims, it cannot be contrary to the State’s public

policy to exclude lead-based paint claims pursuant to a pollution exclusion clause.

       IN § 19-704(c) does not reference a duty for insurers to indemnify and defend lead-

based paint claims through a pollution exclusion clause. It does not reference pollutants at

all. Rather, it plainly states that insurers have the option to exclude coverage for lead-based

paint related claims. We should not read an interpretation into a statute that is

unambiguous. It is well established that “we neither add nor delete words to a clear and



       11
            Affected property, requiring registration is defined in section § 19-701 (b)(1) as
follows:
(b)(1)“Affected property” means:
       (i) 1. a residential rental property constructed before 1950 that contains not more
       than one rental dwelling unit; or
       2. a residential rental property that contains not more than one rental dwelling unit
       for which the owner makes an election under § 6-803(a)(2) of the Environment
       Article; or
       (ii) an individual rental dwelling unit within:
       1. a residential rental property constructed before 1950 that contains more than one
       rental dwelling unit; or
       2. a residential rental property that contains more than one rental dwelling unit for
       which the owner makes an election under § 6-803(a)(2) of the Environment Article.
(2) “Affected property” does not include property exempted under § 6-803(b) of the
Environment Article. IN § 19-701(b).
                                               21
unambiguous statute to give it a meaning not reflected by the words that the General

Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit

the statute’s meaning.” Bellard v. State, 452 Md. 467, 481 (2017). If the statute is

unambiguous, our legislative inquiry ends. Id. The statute unambiguously demonstrates

that removing lead-based paint claims from insurance policies is permissible. Further, the

General Assembly’s explicit dictation of the State’s public policy in IN § 19-704, a year

after this Court held that an insurer had a duty to defend a lead-based paint related injury

in Sullins, illustrates that the General Assembly is responsible for establishing public

policy. Sullins, 340 Md. at 518, 667 A.2d at 624. The statute’s application to “affected

property,” i.e. older homes that may contain lead-based paint, confirms our conclusion that

the General Assembly’s legislative goals are lead-based paint abatement and holding

landlords accountable to their tenants.

       Laws passed after the Lead Poisoning Prevention Program began, and the General

Assembly specifically expressed that insurers could exclude lead-based paint related

claims, also worked toward stopping lead-based paint at its source and assisting landlords

in removing lead-based paint. Maryland created financial protection for tenants when a

landlord fails to make the premises safe and free of lead-based paint as required by the

Lead Poisoning Prevention Program. 1997 Maryland Laws Ch. 714 (H.B. 1068); Maryland

Code, § 8-211.1 of the Real Property Article (“RP”) provides that “if a landlord fails to

comply with the applicable risk reduction standard under § 6-815 or § 6-819 of the

Environment Article, the tenant may deposit the tenant’s rent in an escrow account….” RP


                                            22
§ 8-211.1(a). Maryland also initiated the Lead Hazard Reduction Grant and Loan

Programs. 2005 Maryland Laws Ch. 26 (H.B. 11); Maryland Code, §§ 4-708, 4-709 of the

House and Community Development Article (“HS”). The purpose of these programs was

to “make grants and loans to owners of residential property or child care centers for

financing lead hazard reduction activities[.]” HS § 4-703. In conjunction with

implementing these programs, the General Assembly found that “lead poisoning harms the

health and well-being of children and pregnant women and causes substantial long-term

public costs for medical expenses and additional education[.]” HS § 4-702(3).

       Maryland’s public policy on lead-based paint poisoning was designed to protect

victims of lead-based paint by working to thwart its existence in stock housing. The

General Assembly evidenced this policy through direct legislation banning lead-based

paint in homes, allowing insurers to remove coverage for lead-based paint related claims,

requiring homeowners to register properties that could be affected by lead-based paint,

protecting tenants’ financial interests who may be living in homes with lead-based paint,

funding loan and grant programs to remove lead-based paint from homes, and establishing

healthcare funds for victims of lead-based paint poisoning. Appellants are correct that the

overarching public policy in Maryland affords protection for victims of childhood lead-

based paint poisoning. However, Maryland’s public policy approach focused on

eradicating the source of lead-based paint and aiding victims’ health care needs, if

impacted. Georgia’s decision holding that lead-based paint is a pollutant, is not at odds

with Maryland’s public policy where our General Assembly has not directly indicated


                                            23
otherwise, and the clear trend of Maryland’s public policy is to remove lead-based paint in

homes and provide health care for victims. Georgia Farm, 298 Ga. at 721, 784 S.E.2d at

426.

          B. Maryland’s Public Policy on Contract Exclusion Provisions

       Application of Georgia law under the lex loci contractus doctrine further does not

clearly offend Maryland’s public policy because the General Assembly has not expressly

dictated that lead-based paint cannot be excluded from insurance policies as pollutants, and

because pollution exclusion clauses are not an evolving area of public policy. In fact, the

General Assembly has explicitly expressed that insurers “may include in the policy a lead

hazard coverage exclusion.” IN § 19-704(c). Although Maryland has taken strong

initiatives requiring landlords to abate lead-based paint in housing, in those instances where

we have applied the lex loci contractus public policy exception, the legislature has

explicitly stated that the action was void or contrary to public policy. See, e.g. Bethlehem

Steel, 304 Md. at 190, 498 A.2d at 608 (deciding against application of lex loci contractus

for a construction contract executed in Pennsylvania as void against Maryland public

policy when the relevant statute “unequivocally told the Maryland judiciary that such a

clause ‘is void and unenforceable’ ... [and] in the same sentence of the statute, the General

Assembly expressly stated that such an indemnity provision ‘is against public policy[ ]’”).

See also Nat'l Glass, Inc. v. J.C. Penney Properties, Inc., 336 Md. 606, 614, 650 A.2d 246,

250 (1994) (holding that a Pennsylvania choice of law provision was void where a

mechanic’s lien statute contained a clause stating that contractual provisions made in


                                             24
violation of the statute were “void as against public policy of this State.”) (citing Maryland

Code (1974, 1988 Repl. Vol.), RP §§ 9–101 et seq.).

       As Appellees have highlighted, Appellants have not identified any Maryland

legislative action addressing lead-based paint as a pollutant in insurance policies. It

appears, no such legislation exists. A review of both Maryland’s legislative lead-based

paint and insurance exclusion initiatives does not reflect a current or evolving public policy

strong enough to overcome Georgia’s pollution exclusion law. Without a statement from

the General Assembly to the contrary, we cannot conclude that Georgia’s interpretation of

the pollution exclusion clause is clearly against Maryland’s public policy.

       Despite Appellants’ contention, Clendenin Bros., Inc. v. U.S. Fire Ins. Co., is not

persuasive. 390 Md. 449, 889 A.2d 387 (2006). Appellants rely on Clendenin to argue that

the pollution exclusion in the Liberty Mutual insurance policies is invalid. In Clendenin,

we examined a pollution exclusion provision in the United States Fire Insurance

Company’s policy and found the provision to be ambiguous. Id. Following the Maryland

rules of construction, we concluded that the provision did not exclude coverage for bodily

injury resulting from workplace welding fumes. Id. at 468, 889 A.2d at 399. We determined

that “products, despite their toxic nature, are not ‘pollutants’ or ‘contaminants’ when used

intentionally and legally.” Id. at 463, 889 A.2d at 396 (emphasis omitted). Clendenin is not

relevant to the certified question before this Court, where the issue is not of intent or

legality, but rather, whether Georgia’s interpretation of the pollution exclusion clause

violates Maryland’s public policy.


                                             25
                                       CONCLUSION
       We conclude that the application of Georgia’s interpretation of the pollution

exclusion contained in the Liberty Mutual insurance policies does not violate Maryland’s

public policy. Absent a legislative affirmation that pollution exclusion clauses are against

public policy, we decline to declare that Georgia’s law violates Maryland’s public policy.

Therefore, Georgia’s interpretation of the pollution exclusion clause governs here.

                                          THE CERTIFIED QUESTION ANSWERED
                                          AS SET FORTH ABOVE. PURSUANT TO
                                          SECTION 12-610 OF THE COURTS AND
                                          JUDICIAL PROCEEDINGS ARTICLE,
                                          THE COSTS SHALL BE EQUALLY
                                          DIVIDED BETWEEN THE PARTIES.




                                            26
United States District Court for the District of
Maryland
Case No. 1:16-cv-03177-JFM
                                                         IN THE COURT OF APPEALS
Argued: September 12, 2017
                                                              OF MARYLAND

                                                                 Misc. No. 1

                                                             September Term, 2017
                                                   ______________________________________

                                                        QUANTA BROWNLEE, ET AL.

                                                                      v.

                                                     LIBERTY MUTUAL FIRE INSURANCE
                                                             COMPANY, ET AL.
                                                   ______________________________________

                                                             Barbera, C.J.
                                                             Greene
                                                             Adkins
                                                             McDonald
                                                             Watts
                                                             Hotten
                                                             Getty,

                                                                   JJ.
                                                   ______________________________________

                                                         Dissenting Opinion by Watts, J.
                                                   ______________________________________

                                                             Filed: December 18, 2017
       Respectfully, I dissent. The United States District Court for the District of Maryland

certified to this Court the following question of law: “Would application of Georgia’s

interpretation of the pollution exclusion contained in the insurance policy issued by Liberty

Mutual Insurance Company [(“Liberty Mutual”)] to the Salvation Army as excluding

coverage for bodily injuries resulting from the ingestion of lead-based paint violate

Maryland public policy?” Unlike the Majority, I would answer the certified question of

law with a resounding “yes,” and hold that it is a violation of Maryland public policy to

apply Georgia case law that permits a pollutant exclusion in an insurance policy to be

interpreted as a lead-based paint exclusion because Maryland has a strong public policy of

protecting children from injuries caused by lead-based paint and of requiring exclusions

for lead-based paint to unambiguously and specifically indicate that the exclusion applies

to lead-based paint to be valid.

       Under the choice of law principle of lex loci contractus, “when determining the

construction, validity, enforceability, or interpretation of a contract, we apply the law of

the jurisdiction where the contract was made.” Cunningham v. Feinberg, 441 Md. 310,

326, 107 A.3d 1194, 1204 (2015) (citations omitted). Nevertheless, the principle of lex

loci contractus “is not inflexible and [] it does not apply to a contract provision which is

against Maryland public policy.” Lab. Corp. of Am. v. Hood, 395 Md. 608, 620, 911 A.2d

841, 848 (2006) (citation and internal quotation marks omitted). This Court has stated,

however, “that merely because Maryland law is dissimilar to the law of another jurisdiction

does not render the latter contrary to Maryland public policy and that for another [S]tate’s

law to be unenforceable, there must be a strong public policy against its enforcement in
Maryland.” Id. at 620, 911 A.2d at 848 (citation and internal quotation marks omitted).

       The key issue in this case—indeed, the very issue posed in the certified question of

law—is whether Maryland has a strong public policy of protecting children from lead-

based paint poisoning and in requiring that lead-based paint exclusions be specifically

identified in insurance policies such that application of Georgia’s case law is unenforceable

and would offend the principle of lex loci contractus. On this key issue, I depart from the

view of the Majority, as I would conclude that there is a strong public policy expressed by

the General Assembly in Maryland that renders the application of Ga. Farm Bureau Mut.

Ins. Co. v. Smith, 784 S.E.2d 422, 423 (Ga. 2016) unenforceable.

       Establishing clear public policy, Md. Code Ann., Ins. (1995-97, 2011 Repl. Vol.)

(“IN”) § 19-704, derived from former Md. Code, Art. 48A, §§ 734 and 735, concerning

lead hazard coverage for rental property, provides, in pertinent part, as follows:

       (c) Exclusion of coverage. — Notwithstanding subsection (g) of this section,
       whenever an authorized insurer issues or renews a policy for an affected
       property, the authorized insurer may include in the policy a lead hazard
       coverage exclusion.

An “affected property,” in turn, is defined in IN § 19-701(b) as follows:

       (1) “Affected property” means:

              (i)   1. a residential property constructed before 1950 that contains
              not more than one rental dwelling unit; or

                      2. a residential rental property that contains not more than one
              rental dwelling unit for which the owner makes an election under § 6-
              803(a)(2) of the Environment Article;[1] or

       1
       Md. Code Ann., Envir. (1982, 1987, 2013 Repl. Vol.) (“EN”) § 6-803(a)(2)
provides that Subtitle 8, concerning reduction of lead risk in housing, applies to,


                                            -2-
              (ii) an individual rental dwelling unit within:

                     1. a residential rental property constructed before 1950 that
              contains more than one rental dwelling unit; or

                      2. a residential rental property that contains more than one
              rental dwelling unit for which the owner makes an election under § 6-
              803(a)(2) of the Environment Article.

       (2) “Affected property” does not include property exempted under § 6-803(b)
       of the Environment Article.[2]

       IN § 19-704(c) does not provide that insurance policies containing pollutant

exclusions are the equivalent of insurance policies containing lead hazard coverage

exclusions. Stated otherwise, as IN § 19-704(c) demonstrates, a lead hazard coverage

exclusion is different from a pollutant exclusion. Indeed, IN § 19-704(c) specifically

provides that, with respect to certain properties—affected properties as that term is defined

in IN § 19-701(b)— insurers may include within an insurance policy a lead hazard

coverage exclusion. In other words, IN § 19-704(c) is a very specific statute that provides


“[n]othwithstanding subsection (b) of this section, any residential rental property, the
owner of which elects to comply with this subtitle.”
       2
         EN § 6-803(b) provides that Subtitle 8, concerning reduction of lead risk in
housing, does not apply to:

       (1) Property not expressly covered in subsection (a) of this section;

       (2) Affected property owned or operated by a unit of federal, State, or local
       government, or any public, quasi-public, or municipal corporation, if the
       affected property is subject to lead standards that are equal to, or more
       stringent than, the risk reduction standard established under § 6-815 of this
       subtitle; or

       (3) Affected property which is certified to be lead-free pursuant to § 6-804
       of this subtitle.

                                            -3-
for a lead hazard coverage exclusion under detailed identified circumstances; this statute

does not authorize a pollutant exclusion to operate as the equivalent of a lead hazard

coverage exclusion.

       Indeed, the majority opinion explicitly recognizes that IN § 19-704 does not apply

to pollutant exclusions in insurance policies. Without qualification, the Majority writes:

“IN § 19-704(c) does not reference a duty for insurers to indemnify and defend lead-based

paint claims through a pollution exclusion clause. It does not reference pollutants at all.

Rather, it plainly states that insurers have the option to exclude coverage for lead-based

paint related claims.” Maj. Slip Op. at 21. With this admission, the majority opinion

concedes that IN § 19-704 offers no support for the proposition that it provides guidance

with respect to public policy in Maryland concerning allowing pollutant exclusions in

insurance policies to act as lead hazard coverage exclusions. Nonetheless, the majority

opinion concludes that “Georgia’s decision holding that lead-based paint is a pollutant, is

not at odds with Maryland’s public policy where our General Assembly has not directly

indicated otherwise[.]” Maj. Slip Op. at 23-24. The majority opinion apparently reasons

that there is a lack of strong public policy against pollutant exclusions being treated as lead

hazard coverage exclusions because the General Assembly has not expressly addressed the

issue of pollutant exclusions covering lead-based paint. The majority opinion, however,

ignores the strong public policy implications of IN § 19-704(c)’s unambiguous permission

of lead hazard coverage exclusions only, i.e., lead-based paint exclusions must be clear and

unequivocal.

       Significantly, in Sullins v. Allstate Ins. Co., 340 Md. 503, 506, 509, 516, 518, 667


                                             -4-
A.2d 617, 618, 620, 623, 624 (1995), in response to a certified question of law from the

United States District Court for the District of Maryland, in a thorough and well-reasoned

opinion, this Court determined that the terms “contaminants” and “pollutants” in a pollutant

exclusion of an insurance policy were ambiguous and susceptible to different meanings,

including meanings not encompassing lead-based paint, and that, in accordance with

Maryland law, the insurance policy at issue could not be construed to include lead-based

paint as a contaminant or pollutant, and instead was to be construed against the insurer as

the drafter of the policy, such that the insurer was not relieved of its duty to defend in the

underlying lead-based paint poisoning lawsuit. In Sullins, id. at 506-07, 667 A.2d at 618,

the pollutant exclusion at issue, contained in a section labeled “Losses We Do Not Cover,”

provided:

       We do not cover bodily injury or property damage which results in any
       manner from the discharge, dispersal, release, or escape of:

       a) vapors, fumes, acids, toxic chemicals, toxic liquids or toxic gasses;

       b) waste materials or other irritants, contaminants or pollutants.

       In construing the terms “contaminants” and “pollutants,” and determining whether

lead-based paint was a contaminant or pollutant, this Court observed that the terms were

“susceptible of two interpretations by a reasonably prudent layperson.               By one

interpretation, these terms encompass lead paint; by another interpretation, they apply only

to cases of environmental pollution or contamination, and not to products such as lead

paint.” Id. at 509, 667 A.2d at 620. This Court explained that, “[w]hile lead is clearly

‘toxic,’ a reasonably prudent layperson may not view lead as a ‘chemical[,]’” and that



                                            -5-
“[s]imilarly, a reasonably prudent layperson may not generally think of lead as an

‘irritant.’” Id. at 510, 667 A.2d at 620. This Court acknowledged, however, that a

reasonably prudent layperson could consider lead to be a “contaminant” or a “pollutant”

under the ordinary dictionary definitions of those terms. See id. at 511, 667 A.2d at 620.

On the other hand, this Court noted that “[a] reasonably prudent layperson may also

interpret the terms ‘contaminant’ and ‘pollutant’ as not including lead paint.” Id. at 511,

667 A.2d at 620 (emphasis in original). This Court further observed that courts in other

jurisdictions had found the term “pollutant” both ambiguous and unambiguous with respect

to lead-based paint. See id. at 511, 667 A.2d at 620-21.

       This Court also examined the history of the pollutant exclusion, and determined that

the history supported the conclusion that a reasonably prudent layperson may not consider

lead-based paint to be either a pollutant or a contaminant. See id. at 513, 667 A.2d at 621-

22. The original pollutant exclusions were drafted by insurers in response to environmental

catastrophes that occurred in the 1960s to clarify that commercial general liability

insurance policies did not indemnify knowing polluters. See id. at 514, 667 A.2d at 622.

That “sudden and accidental” pollutant exclusion, which specifically referenced “into or

upon land, the atmosphere or any watercourse or body of water[,]” “was intended to

eliminate coverage for damages from pollution of the environment.” Id. at 514, 667 A.2d

at 622 (citations omitted).    Thereafter, in 1985, the insurance industry adopted the

“‘absolute pollution exclusion[,]’ which denied coverage for ‘bodily injury or property

damage arising out of the actual, alleged or threatened discharge, release, or escape of

pollutants’ and defined ‘pollutant’ as ‘any solid, liquid, gaseous or thermal irritant or


                                           -6-
contaminant including smoke, vapor, soot, fumes, acids, alkalies, chemicals and waste.’”

Id. at 514-15, 667 A.2d at 622. In adopting the “absolute pollution exclusion,” and using

environmental terms of art such as “discharge, dispersal, release, or escape,” insurers

deleted as redundant reference to “into or upon land, the atmosphere or any watercourse or

body of water.” Id. at 515, 667 A.2d at 622. This Court explained that there was “no

indication that the change in the language was meant to expand the scope of the clause to

non-environmental damage.” Id. at 515, 667 A.2d at 622 (citation and internal quotation

marks omitted). Indeed, this Court concluded that the use of environmental law terms of

art such as “discharge,” “dispersal,” “release,” “escape,” “contaminant,” and “pollutant” in

the absolute pollution exclusion demonstrated that the insurance “industry’s intention was

to exclude only environmental pollution damage from coverage[.]” Id. at 515, 667 A.2d at

622-23.

       Accordingly, in Sullins, this Court determined that the history of the pollutant

exclusion supported “our conclusion that a reasonably prudent layperson may interpret the

terms ‘pollution’ and ‘contamination,’ in the circumstances of the case now before us, as

not encompassing lead paint, a product used legally and intentionally.” Id. at 516, 667

A.2d at 623 (emphasis in original).          And, because the terms “pollution” and

“contamination” were ambiguous, this Court held that they had to be construed against the

insurer as the drafter of the insurance policy. See id. at 516, 667 A.2d at 623.

       What can be gleaned from Sullins is that, where an insurance policy contains a

pollutant exclusion with ambiguous terms—terms that could be interpreted to have

multiple meanings when viewed by a reasonably prudent layperson—such terms must be


                                            -7-
construed against the drafter of the policy, i.e., the insurer. Moreover, as explained in

Sullins, tracing the history of the pollutant exclusion demonstrates that pollutant exclusions

originated as a means of excluding coverage for damage caused by environmental

pollution, not for damage caused by non-environmental pollution of the type that could

result from the legal use of products in residences. Additionally, notably, Sullins supports

the conclusion that exclusions from coverage for injuries caused by lead-based paint must

unambiguously include lead-based paint as a pollutant to be valid.

       This is not the status of Georgia case law. In 2016, in Ga. Farm, 784 S.E.2d at 423,

the Supreme Court of Georgia concluded that lead-based paint was a “pollutant” as defined

by the applicable insurance policy such that the “pollution exclusion” in the insurance

policy applied to exclude coverage of personal injury claims arising from lead-based paint

poisoning. This is the case that the Majority finds to be controlling. In Ga. Farm, id., Amy

Smith (“Smith”), in her individual capacity and on behalf of her daughter Tyasia Brown

(“Brown”), sued her landlord, Bobby Chupp (“Chupp”), for injuries that Brown allegedly

sustained from lead-based paint poisoning that occurred in the house that Smith rented

from Chupp. During the relevant time, Chupp’s house was insured under a commercial

general liability insurance policy issued by Georgia Farm Bureau Mutual Insurance

Company (“Georgia Farm”), which contained a “pollution exclusion” that provided as

follows:

       This insurance does not apply to:

                                             ...

       (f) Pollution


                                            -8-
              (1) “Bodily injury” or “property damage” arising out of the actual,
              alleged or threatened discharge, dispersal, seepage, migration, release
              or escape of “pollutants”: (a) At or from any premises, site or location
              which is or was at any time owned or occupied by, or rented or loaned
              to, any insured.

Id. (ellipsis in original). The insurance policy defined the term “pollutant” as “any solid,

liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes,

acids, alkalis, chemicals and waste.” Id.

       In the trial court, Georgia Farm argued, in pertinent part, that the pollutant exclusion

applied to Brown’s alleged injuries from lead poisoning, i.e., that the claims were excluded

from coverage, and that, accordingly, it was relieved of its contractual duty to defend and

indemnify Chupp in the lawsuit. See id. The trial court agreed and granted summary

judgment in Georgia Farm’s favor, finding “that lead-based paint unambiguously fell

within the policy’s definition of a ‘pollutant,’ and, as a result, Brown’s alleged injuries

were excluded from coverage pursuant to the pollution exclusion clause.” Id. In so ruling,

the trial court relied on Reed v. Auto-Owners Ins. Co., 667 S.E.2d 90, 92 (Ga. 2008), in

which the Supreme Court of Georgia interpreted an identical pollutant exclusion contained

in a commercial general liability insurance policy insuring residential rental property and

held that, although not expressly identified in the insurance policy as a pollutant, carbon

monoxide gas was a pollutant and, therefore, the plaintiff’s injuries arising from carbon

monoxide poisoning were excluded from coverage under the pollutant exclusion. See Ga.

Farm, 784 S.E.2d at 423-24.

       Notably, in Ga. Farm, id. at 424, on appeal to the Court of Appeals of Georgia, that



                                             -9-
Court reversed the trial court’s judgment in favor of Georgia Farm, observing that there

existed a conflict in other jurisdictions as to whether lead-based paint should be considered

a pollutant for purposes of a pollutant exclusion in an insurance policy. In light of Georgia

law requiring the narrow construction of exclusions from coverage in insurance policies,

the Court of Appeals of Georgia was persuaded to follow the example of jurisdictions that

had held that a pollutant exclusion did not bar coverage for injuries arising from lead-based

paint poisoning. See id. Significantly, the Court of Appeals of Georgia relied on this

Court’s opinion in Sullins, 340 Md. at 509-10, 667 A.2d at 620, and concluded that, “with

respect to allegations of bodily injury arising from exposure to lead-based paint, the terms

‘contaminants’ and ‘pollutants’ used in a [commercial general liability] policy’s pollution

exclusion were ambiguous and should be strictly construed against the insurer[.]” Ga.

Farm, 784 S.E.2d at 424 (citation omitted). The Court of Appeals of Georgia determined

that Georgia Farm had failed to demonstrate that lead-based paint was a “pollutant” as

defined by the insurance policy. See id. The Court of Appeals of Georgia distinguished

Reed, the case relied on by the trial court, “finding that, while a straightforward reading of

the pollution exclusion in Reed compelled the conclusion that carbon monoxide gas was a

pollutant, it was unclear whether identical language in the instant policy was expansive

enough to unambiguously include lead, lead-based paint or paint as a pollutant.” Ga. Farm,

784 S.E.2d at 424 (citation omitted). Thereafter, Georgia Farm filed a petition for a writ

of certiorari, which the Supreme Court of Georgia granted. See id.

       Ultimately, the Supreme Court of Georgia reversed the judgment of the Court of

Appeals of Georgia, and relied on Georgia precedent in which Georgia courts had


                                            - 10 -
interpreted pollutant exclusions to apply to all injuries caused by pollutants, even those

caused by something other than traditional environmental pollution, and that the term

“pollutant” applies to any contaminant and the contaminant need not be expressly

identified in the insurance policy for a pollutant exclusion to be valid. See id. at 425. After

discussing applicable Georgia case law, the Supreme Court of Georgia concluded that,

“[u]nder the broad definition contained in Chupp’s policy, . . . lead present in paint

unambiguously qualifies as a pollutant and [] the plain language of the policy’s pollution

exclusion clause thus excludes Smith’s claims against Chupp from coverage.” Id. at 426

(footnote omitted). This outcome would not have been the same had the circumstances of

the case been analyzed under the principles set forth by this Court in Sullins.

       The majority opinion attempts to distinguish this Court’s holding in Sullins by

inaccurately claiming that the policy at issue in Georgia Farms was different because the

policy contained a definition of the term pollutant and, in Georgia Farms, “[t]he Supreme

Court of Georgia read that the plain language of the pollutant definition was matter, in any

state, acting as an irritant or contaminant[,]” whereas in the pollution exclusion at issue in

Sullins, the term pollutant was not defined. Maj. Slip Op. at 11 (citation and internal

quotation marks omitted). The definition of the term pollutant in the pollution exclusion

at issue in Georgia Farms, 784 S.E.2d at 423, was in actuality as set forth above—“any

solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot,

fumes, acids, alkalis, chemicals and waste”—and the definition did not unambiguously

define pollutant to include lead-based paint. Rather than relying on the plain language of

the exclusion, in reversing the intermediate appellate court, the Supreme Court of Georgia


                                            - 11 -
utilized Georgia case law in which Georgia courts had earlier determined that the term

“pollutant” applies to any contaminant, and the contaminant need not be expressly

identified in the insurance policy for a pollutant exclusion to be valid. See id. at 425. Thus,

in Georgia Farms, the term pollutant was not defined in a manner that merely allowed a

plain language determination that the term included lead-based paint, and such is not the

circumstance in this case either.

       To be sure, public policy in Maryland permits an insurance policy to contain an

exclusion for coverage for injuries caused by lead-based paint. IN § 19-704(c) speaks for

itself, authorizing insurers to include lead hazard coverage exclusions under certain narrow

circumstances. Nevertheless, the Liberty Mutual insurance policy at issue in this case does

not contain a lead hazard coverage exclusion; it contains a pollutant exclusion. Indeed, the

Majority specifically acknowledges that, “[n]otably, the policies do not include lead-based

paint exclusion provisions, but the policies do include pollution exclusion provisions.”

Maj. Slip Op. at 3.

       After conceding that the Liberty Mutual exclusion is a pollution exclusion and not

a lead hazard coverage exclusion, the majority opinion concludes that “the General

Assembly’s explicit dictation of the State’s public policy in IN § 19-704, a year after this

Court held that that an insurer had a duty to defend a lead-based paint related injury in

Sullins, illustrates that the General Assembly is responsible for establishing public policy.”

Maj. Slip. Op. at 22 (citing Sullins, 340 Md. at 518, 667 A.2d at 624). The majority opinion

overlooks the legislative history of IN § 19-704. What is now IN § 19-704(c) was

originally enacted by the General Assembly in 1994 as part of the Lead Poisoning


                                            - 12 -
Prevention Program Act. See 1994 Md. Laws 1282, 1343 (Ch. 114, H.B. 760). The Lead

Poisoning Prevention Program Act took effect on October 1, 1994, and the session law

provided “[t]hat, notwithstanding other provisions of this Act, this Act shall apply

beginning on January 1, 1995 to insurance policies issued or renewed between October 1,

1994 and December 31, 1994.” Id. at 1347.

      As originally enacted, Md. Code (1994 Repl. Vol., 1995 Supp.), Art. 48A, §

735(a)—the section that is now IN § 19-704(c)—provided:

      (a) Provision. — Notwithstanding subsection (f) of this section, upon the
      inception or renewal of a policy, an insurer may provide for a lead hazard
      exclusion with respect to a policy of insurance covering an affected property.

In 1996, as part of adding certain titles to the Insurance Article, Md. Code (1994 Repl.

Vol., 1995 Supp.), Art. 48A, § 735(a) was recodified without substantive change as IN §

19-704(c). See 1996 Md. Laws 235, 236, 524-28 (Ch. 11, H.B. 11). That recodification

took effect on October 1, 1997. See 1996 Md. Laws 693 (Ch. 11, H.B. 11). As recodified,

IN § 19-704(c) provided, and continues to provide, as follows:

      (c) Exclusion of coverage. — Notwithstanding subsection (g) of this section,
      whenever an authorized insurer issues or renews a policy for an affected
      property, the authorized insurer may include in the policy a lead hazard
      coverage exclusion.

      The history of IN § 19-704 demonstrates that the lead hazard coverage exclusion in

Maryland preceded the Court’s decision in Sullins. It is inaccurate to link the enactment

of IN § 19-704 to Sullins in anyway. This Court issued Sullins on November 6, 1995,

after Md. Code (1994 Repl. Vol., 1995 Supp.), Art. 48A, § 735(a) was enacted and became

effective. However, Sullins involved an insurance policy that was issued on September



                                          - 13 -
14, 1990; i.e., Md. Code (1994 Repl. Vol., 1995 Supp.), Art. 48A, § 735(a) would not have

applied to the policy at issue in that case. And, in Sullins, this Court did not discuss or

mention Md. Code (1994 Repl. Vol., 1995 Supp.), Art. 48A, § 735(a) or the Lead Poisoning

Prevention Program Act.

       Moreover, Md. Code (1994 Repl. Vol, 1995 Supp.), Art. 48A, § 735(a) was

recodified in 1996 as IN § 19-704(c) without substantive change. As stated, Sullins was

decided in 1995. In recodifying Md. Code (1994 Repl. Vol, 1995 Supp.), Art. 48A, §

735(a) in 1996, the General Assembly would have been aware of this Court’s decision in

Sullins, and could have made changes to the lead hazard coverage exclusion to enlarge it

to encompass pollutant exclusions generally, but the General Assembly did not do this. It

is clear that the strong public policy in Maryland is that a lead-based paint exclusion must

be unambiguous. Undoubtedly, one of the purposes of IN § 19-704(c) and its predecessor

is plainly to prevent insureds from signing insurance policies and being unaware that

coverage for injuries caused by lead-based paint is excluded.

       Ultimately, in Maryland, there is a strong public policy of protecting children from

injuries caused by lead-based paint and of requiring that lead-based paint exclusions in

insurance policies be clear and unambiguous. This is evident from statutes enacted by the

General Assembly. For example, in Md. Code Ann., Hous. & Cmty. Dev. (2005-06) § 4-

702, part of the subtitle governing the lead hazard reduction grant program and lead hazard

reduction loan program, the General Assembly specifically made the following findings:

       The General Assembly finds that:

              (1) lead paint is present in a large percentage of residential properties


                                            - 14 -
       in the State, particularly residential rental properties constructed before 1950;

              (2) lead paint on the friction surfaces of windows is a leading cause
       of lead poisoning;

             (3) lead poisoning harms the health and well-being of children and
       pregnant women and causes substantial long-term public costs for medical
       expenses and additional education; and

              (4) reduction or elimination of lead in the environment will reduce:

                     (i) the risk of lead poisoning of children and pregnant women;

                    (ii) the incidence of learning disabilities and behavioral
              problems in children who live in older housing; and

                     (iii) the cost of publicly financed medical care.

I would conclude that there is an equally strong public policy in Maryland, as demonstrated

by Md. Code (1994 Repl. Vol., 1995 Supp.), Art. 48A, § 735(a), and its recodification

without substantive change to IN § 19-704(c) after this Court’s decision in Sullins, that for

an insurance policy exclusion from coverage of injuries caused by lead-based paint to be

valid, the exclusion must be explicit and unambiguous. Stated otherwise, in my view, IN

§ 19-704(c), its predecessor, and the existence of this Court’s decision in Sullins

inescapably lead to the conclusion that a lead-based paint exclusion in an insurance policy

must be expressly and unambiguously identified, either through a lead hazard coverage

exclusion of the type authorized by IN § 19-704(c) or through some other exclusion, which

expressly includes lead-based paint for purposes of the exclusion. Respectfully, the

Majority’s conclusion that, under Georgia case law, an insurance contract with a pollution

exclusion is enforceable as a lead-based paint exclusion and that this does not violate

Maryland’s public policy is in direct contradiction with this Court’s holding in Sullins, in


                                            - 15 -
which this Court answered the same certified question to the contrary.

       I would determine that the pollutant exclusion in the Liberty Mutual insurance

policy runs afoul of a strong Maryland public policy on its face by failing to specifically

and unambiguously include lead-based paint as a “pollutant” covered in the pollutant

exclusion.   The definition of “pollutant” contained in the Liberty Mutual insurance

policy—“any solid, liquid, gaseous or thermal irritant or contaminant, including smoke,

vapor, soot, fumes, acids, alkalis, chemicals and waste”—is ambiguous and a reasonably

prudent layperson both may and may not believe lead-based paint to be a “pollutant” based

on the plain language of the pollutant exclusion contained in the Liberty Mutual insurance

policy. And, notably, the Liberty Mutual pollutant exclusion contains environmental law

terms of art such as “discharge,” “dispersal,” “seepage,” “migration, “release”, and

“escape,” which, as this Court explained in Sullins, 340 Md. at 515-16, 667 A.2d at 622-

23, supports the conclusion that the insurance industry intended pollutant exclusions to

apply only to environmental pollution damage, and not necessarily to the lawful use of

products in the home, and that a reasonably prudent layperson could “interpret the term[]

‘pollution’ . . . as not encompassing lead paint, a product used legally and intentionally.”

(Emphasis in original). I would conclude that the public policy exception to the principle

of lex loci contractus is applicable, and I would answer the certified question of law “yes,”

and hold that it would violate Maryland public policy to apply Georgia case law,

specifically, the Ga. Farm case, under the circumstances of this case because Maryland has

both a strong public policy of protecting children from injuries caused by lead-based paint

and of requiring exclusions for lead-based paint to be unambiguous to be valid.


                                           - 16 -
For the above reasons, respectfully, I dissent.




                                    - 17 -
