Richardson v. Nationwide Mutual Insurance

826 A.2d 310, 2003 D.C. App. LEXIS 418, 2003 WL 21448372

• Court: District of Columbia Court of Appeals
• Decided: June 12, 2003
• Docket: 01-SP-1451
• Status: Published

Opinions

SCHWELB, Associate Judge:

Antoinette Richardson, a security guard at an apartment complex operated by National REO Management (REO), alleges that she suffered serious personal injuries, including brain damage, as a result of inhaling carbon monoxide fumes from a leaking gas furnace located on the premises. In a suit against REO which she brought in the Superior Court, Ms. Richardson alleged, inter alia, that REO failed to exercise due care in maintaining the furnace and that her injuries were proximately caused by REO’s negligence.

REO was insured under a comprehensive general liability (CGL) insurance policy issued by Nationwide Mutual Insurance Company (Nationwide). The policy contained an “absolute” pollution exclusion clause which provided, inter alia, that coverage was excluded for:

(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[.]

Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.... ¹

Relying on the pollution exclusion, Nationwide brought an action against REO in the United States District Court for the District of Columbia, seeking a declaratory judgment that Nationwide was not required to defend or indemnify REO in connection with Ms. Richardson’s suit. Ms. Richardson was permitted to intervene with respect to certain issues in Nationwide’s action and, on July 26, 2000, the District Court granted summary judgment in favor of Nationwide, concluding that the pollution exclusion barred coverage as a matter of law. Nationwide Mut. Ins. Co. v. Nat’l REO Mgmt., Inc., 205 F.R.D. 1, 9-12 (D.D.C.2000) (Nationwide I).2 Ms. Richardson appealed, and on November 2, 2001, the United States Court of Appeals, noting the importance of the issue presented and the lack of any dispositive District of Columbia precedent, certified the following question of law to this court pursuant to D.C.Code § 11-728(2001):

In light of the facts set forth below, does the pollution exclusion clause apply to injuries arising from alleged carbon monoxide poisoning?

Nationwide Mut. Ins. Co. v. Richardson, 348 U.S.App.D.C. 124, 126-27, 270 F.3d 948, 950-51 (2001) (Nationwide II).

The largely undisputed history of the adoption of the absolute pollution exclusion reveals that its purpose was to protect insurers, in fight of then recently enacted federal environmental legislation, from liability in the billions of dollars for environmental cleanups of hazardous waste sites and industrial facilities. A reasonable person reading the entire clause at the time it was written by the insurance industry and approved by state regulators could fairly conclude that its language was fully consistent with this purpose, and that the exclusion therefore had no application to a malfunctioning furnace in an apartment house. Any ambiguity in the clause must, of course, be resolved in favor of the insured. Finding ourselves in agreement with the decisions of the three highest state courts which have considered factual scenarios and legal issues essentially identical to those here presented,³ with the views of the District agency responsible for the regulation of insurance,⁴ and with the more persuasive rulings of other courts that have addressed similar issues,⁵ we answer the certified question in the negative.

I.

THE BUSINESS AND REGULATORY CONTEXT

The pollution exclusion clause relied upon by Nationwide in this case and quoted in footnote 1 of this opinion cannot be construed in the abstract, i.e., without an understanding of the business and regulatory context in which the policy of which it is a part was written.⁶ We therefore begin with a brief description of the procedures by which insurance policies are prepared, and, in particular, we explain how the clause here at issue came into being. In our view, this background illuminates the question whether, as Nationwide contends, the exclusion unambiguously bars coverage, or whether, as Ms. Richardson argues, a proper construction of the policy establishes that the exclusion does not apply-

The relevant context has been well described in the very helpful brief of the Commissioner of the District’s Department of Insurance and Securities Regulation as amicus curiae:

A contract of insurance is in its fundamentals simple. In exchange for a certain sum of money, the insurer agrees to perform if some uncertain future event comes about. The sum paid in advance is called the premium. The subject matter of the contract is called the risk. The contract itself is called a policy. If the policy is limited to only certain hazards or dangers, those are called perils.

Several aspects of the organization of the business of insurance flow from its nature. To fix a premium, the insurer must calculate the expected cost of its performance. To do that successfully, it is generally necessary to aggregate and analyze past claims experience. Most insurers, however, do not acquire from their own operations sufficient experience from which to make a reliable calculation. Furthermore, information concerning such matters as local conditions and applicants’ claims experience may also be important factors in fixing premiums. Consequently, insurers have historically combined to pool their claims experience as well as to acquire and share other information....

Another aspect of the business of insurance is the use of form contracts. The use of forms is not a mere matter of convenience. Form policies ensure consistency and comparability between contracts. Premiums are more easily and routinely calculated. Experience gained under one form of policy can be more readily aggregated. Administration of many policies based on a single form is more efficient and readily routinized. The language used in the forms acquires particular meaning, based on repeated application to various circumstances. All of that tends toward achieving the great public office of insurance: to render certain and predictable in financial terms things which are uncertain and unpredictable in their nature.

The close relation between premium rates and forms of policies means that the same associations that aggregate and analyze claims experience also draft and license the use of policy forms. Such cooperation is expressly authorized by District law. [Citation omitted.] In the area of commercial liability insurance, the largest United States association is the Insurance Services Office (ISO). [Footnote omitted.] The policy at issue in this case is written on an ISO form.

Brief for Commissioner at 4-6 (emphasis in original).

The foregoing passage reflects the reality that although the policy here at issue is an agreement between Nationwide and REO, its content, which is a part of a “form” prepared by the insurance industry, reflects the experiences of insurers generally. Moreover, as noted by the Commissioner, the business of insurance is closely regulated. Id. at 7. Statements made by representatives of the insurance industry to obtain approval of proposed policy language can therefore be quite significant. See, e.g., Doerr v. Mobil Oil Corp., 774 So.2d 119, 132-34 (La.2000) (chronicling inaccurate statements by representatives of the insurance industry regarding the meaning of earlier pollution exclusion clauses), opinion corrected on unrelated grounds, 782 So.2d 573 (La. 2001) (per curiam); Morton Int’l, Inc. v. Gen. Accident Ins. Co. of Am., 134 N.J. 1, 629 A.2d 831, 848-55, 868-70 (1993) (same), cert. denied, 512 U.S. 1245, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994); 9 Lee R. Russ & Thomas F. Segalla, Couoh On InsüRANce § 127:8, at 127-24, § 127:14, at 127-37 (3d ed.1997) (hereinafter Couch).

As the Supreme Court of New Jersey has recognized, “the typical commercial insured rarely sees the policy form until after the premium has been paid.” Morton Int’l, 629 A.2d at 852 (citations omitted). Moreover, insurance policies are

written by the insurers, who are “equipped with able counsel and other experts in the field,” while the policyholders, who generally play no role in the drafting of such contracts “are, in vast majority, not informed in the obscurities of insurance expertise and not equipped to understand other than plain language.”

Cameron v. USAA Prop. & Cas. Ins. Co., 733 A.2d 965, 968 (D.C.1999) (quoting Hayes v. Home Life Ins. Co., 83 U.S.App. D.C. 110, 112, 168 F.2d 152, 154 (1948) (Prettyman, J.)) (internal quotation marks omitted); see also Chase v. State Farm Fire & Cas. Co., 780 A.2d 1123, 1127 (D.C. 2001). Thus,

to the extent that the pollution-exclusion clause ever was subjected to arms-length evaluation by interests adverse to the insurance industry, that evaluation occurred only when the clause was submitted to and reviewed by state regulatory authorities.

Morton Int’l, 629 A.2d at 852. It is therefore important to consider the meaning of the “form” absolute pollution exclusion clause at issue in this case at the time that it was introduced by the insurance industry and reviewed by state regulators.

II.

THE HISTORY OF THE POLLUTION EXCLUSION

Prior to World War II, insurance policies in this country were structured to cover liability arising only from specific perils expressly identified therein. See Brief for Commissioner at 10. Beginning in the 1940s, insurers began to offer CGL policies which were not limited to liability for particular perils; instead, coverage started from the premise that “the risk covered was all liability, unless specifically excluded.” Id. (emphasis in original). The insurance contract at issue in this case is such a CGL policy.

We now turn to the pollution exclusion itself. “Before 1966, to be covered [under a CGL policy], an injury giving rise to liability had to be caused by an accident.” Brief for Commissioner at 11 (emphasis in original). In 1966, the word “accident” in the CGL policy was replaced by “occurrence,” and this change was viewed as expanding the insurer’s liability by including harms that came about gradually as well as those that occurred as a result of a single accidental event. Id.

In the 1970s, in order to counteract this perceived expansion of coverage, the insurance industry developed the “original general pollution exclusion.” That provision excluded coverage for

Bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water.

9 [Couoh] § 127:6. Over time, many policies began to include a “sudden and accidental” exception to this pollution exclusion: “This exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental.” See id. at § 127:8.

Doerr, 774 So.2d at 126; see also Brief for Commissioner at 11-12. According to the Supreme Court of New Jersey, the purpose of the “sudden and accidental” exception to the pollution exclusion was to deny coverage only to intentional polluters. Morton Int’l, 629 A.2d at 870-72 (summarized in 9 Couoh § 127:8); see also Claussen v. Aetna Cas. & Sur. Co., 259 Ga. 333, 380 S.E.2d 686, 689 (1989) (“Documents presented by the Insurance Rating Board [which represents the industry] to the Insurance Commissioner when the ‘pollution exclusion’ was first adopted suggest that the clause was intended to exclude only intentional polluters.”).

Subsequently, in 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. CERCLA was enacted in order to

allow the government and private individuals or entities to act as quasi-regulators over environmental pollution by allowing them to carry out the cleanup of hazardous waste sites and then recover the expenses of the cleanup from the responsible parties.

Doerr, 774 So.2d at 126 (citation omitted); see also Key Tronic Corp. v. United States, 511 U.S. 809, 815 n. 6, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). In response to this legislation, parties alleged to have engaged in environmental pollution at hazardous waste sites began to claim that the standard CGL policy required their insurers to defend them in such actions and to indemnify them if they were found liable. Considerable litigation ensued, especially over the meaning of the “sudden and accidental” exception to the general pollution exclusion. Doerr, 774 So.2d at 126 (citation omitted). Indeed, between 1970 and 1985, “insurers [were] held liable for many billions of dollars in defense and response costs incurred pursuant to laws that did not even exist at the time the exclusion, with its exception, was written.” Brief for Commissioner at 12; see also Western Alliance, 686 N.E.2d at 999 (relating absolute pollution exclusion to the “enormous expense of environmental litigation”) (citing Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 81).

“[T]he insurance industry reacted with lightning speed to the possibility that ... it could find itself indemnifying industries facing the staggering retroactive pollution clean-up costs imposed by the 1980 enactment of [CERCLA].” Essex Ins. Co. v. Tri-Town Corp., 863 F.Supp. 38, 39-40 (D.Mass.1994) (quoted in Nationwide II, 348 U.S.App.D.C. at 128-29, 270 F.3d at 952-53). Specifically, insurers introduced the “absolute” pollution exclusion in a form very similar to the one at issue in this case. Doerr, 774 So.2d at 126-27; Brief for Commissioner at 12-13. The Supreme Court of Louisiana explained that

[b]y 1986, the “absolute” pollution exclusion had been introduced which omitted from the exclusion the “sudden or accidental” exception. [Citation omitted.]⁷ Throughout its development, the general purpose of these pollution exclusions has remained constant: “to exclude coverage for environmental pollution, and under such interpretation, [the] clause will not be applied to all contact with substances that may be classified as pollutants.” [9 Couoh] at § 127:6 n. 62 (citing Stoney Run Co. v. Prudential-LMI Comm. Ins. Co., 47 F.3d 34, 37 (2d Cir.1995)).

Importantly, there is no history in the development of this exclusion to suggest that it was ever intended to apply to anyone other than an active polluter of the environment.

Doerr, 774 So.2d at 126-27. Indeed, the changes that led to the absolute pollution exclusion were “intended by the insurance industry to bar coverage for the costs of environmental cleanups.” Nationwide II, 348 U.S.App.D.C. at 128, 270 F.3d at 952 (citations omitted).

In Andersen, see note 3 to this opinion, a case factually almost identical to the present one in all relevant respects, the insurer sought to apply the absolute pollution exclusion to death and injury allegedly caused by the inhalation of carbon monoxide fumes from a faulty heating unit in an apartment complex. In ruling in favor of the insured, the Supreme Court of Ohio described the circumstances under which the absolute pollution exclusion came into being:

[T]he genesis of the pollution exclusion does not support the notion that it was created to preclude the kind of claim involved in this case. In June 1970, the insurance industry “went on record as being ‘against’ intentional polluters and promulgated the qualified pollution exclusion for insertion in all comprehensive general liability (CGL) insurance policies.” (Footnotes omitted.) Reiter, Strasser & Pohlman [The Pollution Exclusion Under Ohio Law: Staying The Course, 59 U. Cm. L. Rev. 1165, 1168 (1991) ]. The insurance industry explained that “accidental pollution continued to be insured under a CGL policy, but deliberate polluters would remain uncovered, unable to use insurance to avoid the financial consequences of their acts. On the basis of these representations, nearly every state, including Ohio, allowed the introduction of this new, qualified pollution exclusion.” (Footnotes omitted.) Id.

The exclusion disputed in the case at bar, the absolute pollution exclusion, “was drafted during the early 1980s and was incorporated into the standard form CGL [policies] in 1986.” Stempel, Reason and Pollution: Correctly Construing the “Absolute” Exclusion in Context and in Accord With Its Purpose and Party Expectations (1998), 34 Tort & Ins.LJ. 1, 5. The purpose of the new exclusion was “to replace the 1973 ‘sudden and accidental’ [exception] because insurers were distressed by judicial decisions holding that the 1973 exclusion did not preclude coverage for gradual but unintentional pollution.” Id. Further, “[t]he absolute exclusion was designed to bar coverage for gradual environmental degradation of any type and to preclude coverage responsibility for government-mandated cleanup[s].” Id.

Andersen, 757 N.E.2d at 332-33; accord, Western Alliance, 686 N.E.2d at 999.

The parties to this appeal are emphatically at odds over the meaning of the pollution exclusion clause in REO’s policy. There appears to be no substantial dispute, however, as to the clause’s history or as to the events that led to its introduction into ISO’s form CGL policy. See Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 79 (describing the events leading up to the insurance industry’s adoption of the pollution exclusion as “well-documented and relatively uncontroverted”).⁸

III.

LEGAL ANALYSIS

A. General background.

Although, as we have noted, the background and history of the absolute pollution exclusion are not in serious dispute, the meaning of the clause has sharply divided the courts. Six years ago, the Supreme Court of Illinois found the arguments for each side of the controversy “compelling” and noted the “vast divergence of the jurisprudence of the courts across the country which have already struggled with the question now facing this court.” Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 78. In certifying the present appeal to us, the United States Court of Appeals remarked that “[cjourts across the nation are hopelessly divided over whether the clause is ambiguous as applied to[, inter alia,] carbon monoxide ....” Nationwide II, 348 U.S.App.D.C. at 130, 270 F.3d at 954.

Some courts have concluded that the language of the exclusion is unambiguous, that it plainly applies to the kind of factual scenario presented here, and that no consideration of the history of the clause or of other contextual or explanatory materials is required or appropriate.⁹ Other courts have held that the clause is ambiguous because its enumeration of “smoke, vapors, soot, fumes, acids, alkalis, chemicals and waste,” and its repeated references to “waste” and to “cleaning] up,” suggest industrial pollution and environmental contamination; because it contains words such as “dispersal,” “discharge,” “escape,” “seepage,” “irritant” and “contaminant,” which are said to be recognizable as terms of art in environmental law; because a strictly literal reading of the provision may yield incongruous results; and because the demonstrable intent of the industry in introducing the clause was to exclude coverage for entities that actively pollute the environment.¹⁰ For the reasons set forth below, we reject the purportedly literal approach appearing in the first group of decisions and align ourselves with what we regard as the more persuasive reasoning of the second group. Indeed, we agree with the Supreme Court of Washington that the insurance industry’s attempt to apply the absolute pollution exclusion to the kind of situation presented here is “simply an opportunistic afterthought, at odds with the original purpose of providing protection to insurance companies from a potentially vast and unforeseen liability for major environmental disasters.” Kent Farms, Inc. v. Zurich Ins. Co., 140 Wash.2d 396, 998 P.2d 292, 295-96 (2000) (citation omitted).

B. The applicable principles of construction.

The language of the pollution exclusion at issue in this case is set forth at page 313 and footnote 1 of this opinion. The sentences on which Nationwide relies are relatively simple; indeed, their simplicity is what animates Nationwide’s argument. Bodily injury from, inter alia, the “release” or “escape” of pollutants is excluded from coverage. “Pollutant” means, inter alia, any “gaseous ... irritant or contaminant,” including “fumes.”¹¹ Ms. Richardson claims to have suffered bodily injury “directly and proximately” caused by the release of carbon monoxide gas fumes at the insured’s premises. Therefore, according to Nationwide, the exclusion unambiguously applies.

“Where insurance contract language is not ambiguous, a written contract duly signed and executed speaks for itself and binds the parties, without the necessity of extrinsic evidence.” Cameron, 733 A.2d at 968 (internal brackets and ellipsis omitted) (quoting In re Corriea, 719 A.2d 1234, 1239 (D.C.1998)). An insurance policy is not ambiguous “merely because the parties do not agree on the interpretation of the contract provision in question.” Byrd v. Allstate Ins. Co., 622 A.2d 691, 694 (D.C.1993) (citation omitted); Corriea, 719 A.2d at 1239. “We may not ‘indulge in forced constructions to create an obligation against the insurer.’ ” Chase, 780 A.2d at 1127 (quoting Cameron, 733 A.2d at 968).

But when construing any writing, whether a statute or a contract, “[w]e must not, of course, make a fetish out of plain meaning.” James Parreco & Son v. District of Columbia Rental Hous. Comm’n, 567 A.2d 43, 46 (D.C.1989).¹² In the words of Judge Learned Hand, “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945);¹³ Parreco, 567 A.2d at 46 (quoting Cabell). “It is a fundamental rule that in the construction of contracts the courts may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.” Merriam v. United States, 107 U.S. 437, 441, 2 S.Ct. 536, 27 L.Ed. 531 (1882); accord, District of Columbia v. North-Eastern Constr. Co., 63 App.D.C. 175, 176, 70 F.2d 779, 780 (1934). Indeed, the meaning of a contract “must be ascertained in light of all of the circumstances surrounding the parties at the time the contract was made.” 1010 Potomac Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205 (D.C.1984) (citing Restatement (Second) Of ContRacts §§ 202(1), 212(1)(1981)). Nothing in Cameron, Corriea and like cases should be read as excluding from consideration the context in which the words of a contract were written.¹⁴

“The meaning of words ... commonly depends on their context .... In interpreting the words and conduct of the parties to a contract, a court seeks to put itself in the position they occupied at the time the contract was made .... ” Restatement (Seoond) Of Contracts, § 202 cmt. b. “Even though words seem on their face to have only a single possible meaning, other meanings often appear when the circumstances are disclosed.” Id. at § 214 cmt. b.¹⁵ To paraphrase Hively v. District of Columbia Dep’t of Employment Servs., 681 A.2d 1158 (D.C. 1996), “even where the words of a [contract] have a ‘superficial clarity,’¹⁶ a review of the ... history [of the relevant provision] or an in-depth consideration of alternative constructions that could be ascribed to [contractual] language may reveal ambiguities that the court must resolve.” Id. at 1161 (quoting Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 754 (D.C.1983)).¹⁷ These principles are fully applicable to the kind of controversy now before us; as the Supreme Court of California explained in Montrose Chem. Corp. v. Admiral Ins. Co., 10 Cal.4th 645, 42 Cal.Rptr.2d 324, 913 P.2d 878, 891 (1995),

[the insurer] contends that evidence of the drafting history of the standardized CGL policy provisions and definitions, and available interpretative materials, are irrelevant and should not have been considered by the Court of Appeals in construing the language of its CGL policies issued to [the insured]. Most courts and commentators have recognized, however, that the presence of standardized industry provisions and the availability of interpretative literature are of considerable assistance in determining coverage issues. (See, e.g., Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 968, 270 Cal.Rptr. 719.) Such interpretative materials have been widely cited and relied on in the relevant case law and authorities construing standardized insurance policy language.¹⁸

In the words of Justice Oliver Wendell Holmes, “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the times in which it was used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918). The following hypothetical illustrates our thesis: Suppose that on January 1, Rurita-nia¹⁹ and Illyria,²⁰ having fought a bitter war, agree to an armistice. The armistice provides that, no later than January 8, Ruritania and Illyria shall release “all prisoners.” An Illyrian who has been incarcerated in his own country for distributing unlawful drugs brings a lawsuit in which he claims that he is entitled to his freedom. It would surely be incongruous to exclude from evidence in that lawsuit the history that led to the armistice, when that history demonstrates beyond peradventure that the word “prisoner” as used in that document, although not so limited by its dictionary definition, necessarily refers to a prisoner of war and does not provide solace for dealers in hashish.²¹ Similarly, in this case, it would be unreasonable to attempt to ascertain the meaning of the absolute pollution exclusion while ignoring the history that defines its raison d’Ure, namely, to avoid imposing on insurers the obligation to indemnify industries for the “staggering” pollution cleanup costs generated by the enactment of CERCLA. Essex Ins. Co., 863 F.Supp. at 39-40. Thus, assuming for the purposes of argument only that the language of the pollution exclusion appears unambiguous today, it may nevertheless have reasonably appeared to have an entirely different context-related meaning to persons who were writing and approving it in the 1980s, when insurers were seeking to avoid unanticipated liability in the billions of dollars for the harm caused by major industrial polluters.

In the present case, the parties to the insurance policy itself were REO and Nationwide, but the pollution exclusion, as we have seen, is based on a form contract written and presented to state regulators for their consideration and approval by representatives of the insurance industry after CERCLA became law. See Doerr, 774 So.2d at 126-27; Andersen, 757 N.E.2d at 332-33; Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 81. The meaning of the language of the absolute pollution exclusion in the form contract has not changed since it was introduced, and we must therefore look primarily to the circumstances then existing to determine whether, as Nationwide insists, the words used plainly and unambiguously rule out coverage.²²

If the language of the exclusion was ambiguous when written, then Nationwide’s position is indeed difficult to sustain. “To negate coverage by virtue of an exclusion, an insurer must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies to the particular case.” Cont’l Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 593 N.Y.S.2d 966, 609 N.E.2d 506, 512 (1993). “The insurer must establish not merely that the policy is capable of the construction it favors, but rather that such an interpretation is the only one that can fairly be placed on the language in question.” Andersen, 757 N.E.2d at 332 (emphasis added) (citation omitted). “It will not suffice for [the insurer] to demonstrate that its interpretation is more reasonable than the policyholder’s.” Id. at 333 (citation omitted). Rather, Nationwide must show that Ms. Richardson’s construction is altogether unreasonable.

“The burden is on [Nationwide] to prove that the loss falls within an exclusion.” Cameron, 733 A.2d at 969 (citing Lang v. F.G. Arwood & Co., 65 A.2d 194, 196 (1949) and New York Life Ins. Co. v. Miller, 65 App.D.C. 129, 134, 81 F.2d 263, 268 (1935)). Moreover,

[i]n this jurisdiction, as elsewhere, it has long been “a general rule of construction of policies of insurance ... that any reasonable doubt which may arise as to the meaning or intent of a condition thereof, will be resolved against the insurer.” United States Mut. Accident Ass’n of the City of New York v. Hodgkin, 4 App.D.C. 516, 523 (1894), error dismissed, 17 S.Ct. 1002, 41 L.Ed. 1184 (1897). “[I]t is the insurer’s duty to spell out in plainest terms — terms understandable to the man in the street— any exclusionary or delimiting policy provisions.” Holt v. George Washington Life Ins. Co., 123 A.2d 619, 621 (D.C. 1956) (citation omitted). “Failing such unambiguous language, doubt should be resolved in favor of the insured.” Id. at 622 (citation omitted). “The rule that a real ambiguity in an insurance policy is to be construed against the company is not a rule of convenience or a mere technicality of legalists.” Hayes v. Home Life Ins. Co., 83 U.S.App.D.C. 110, 112, 168 F.2d 152, 154 (1948) (Prettyman, J.). On the contrary, this rule is based on sound public policy, for the contracts in question are written by the insurers.

Cameron, 733 A.2d at 968. In recognition of these realities, ambiguities in an insurance policy are construed against the insurer and in favor of “the reasonable expectations of the purchaser of the policy.” Chase, 780 A.2d at 1127 (citation omitted).

Finally, we must “examine the language of the polic[y] and construe it as a whole.” Kent Farms, 998 P.2d at 294 (citation omitted). “Put another way, we are required to view the exclusion in light of the whole policy to determine whether, in that context, the exclusion applies.” Id. at 295. To that end, we must “examin[e] what the exclusion and similar exclusions are intended to accomplish.” Id.

C. The use of terminology mirroring the purpose of the exclusion.

The absolute pollution exclusion in REO’s policy is entitled “Pollution,” and it excludes bodily injury arising out of the “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants.” “Pollutants” include any solid, liquid, gaseous or thermal “irritant or contaminant,” including “smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” The eight enumerated pollutants collectively bring to mind byproducts of industrial pollution, Western Alliance, 686 N.E.2d at 999, rather than carbon monoxide from a furnace in an apartment house or a stove in a restaurant.²³ In light of the circumstances that generated the adoption of the absolute pollution exclusion, it is hardly astonishing that the word “waste” is used five times in the clause in question, that the words “clean up” or “cleaning up” are used three times, and that many other phrases in the clause²⁴ are obviously focused on subjects similar to the cleanup of waste sites. Thus, when one reads the entire clause, rather than limiting oneself to the word “fumes” in isolation, one cannot reasonably avoid the impression that the revised exclusion has to do with the byproducts of the manufacturing process and with massive environmental cleanup costs, the very concerns that, as a matter of undisputed history, led to the adoption of the new language. Ms. Richardson argues that the exclusion contains terms of art in environmental law, that those who wrote it had environmental provisions in mind, and that the clause in question thus refers to pollution by environmental polluters. At the very least, according to Ms. Richardson, the use of this terminology creates an ambiguity which the court should resolve in favor of coverage. There is considerable support in reason and authority for Ms. Richardson’s position.

Read together, the examples in the clause of irritants and contaminants are exactly what one would expect to see in an exclusion “designed to bar coverage for gradual environmental degradation of any type and to preclude coverage responsibility for government-mandated cleanups.” Andersen, 757 N.E.2d at 333 (citation omitted). In other words, the exclusion uses terminology which mirrors the undisputed historical context of the adoption of the clause, as described in Andersen, Doerr, Western Alliance and Koloms, and in the Commissioner’s brief. Moreover, the exclusion is replete with language used in environmental statutes and regulations of the kind that generated the absolute exclusion’s adoption.

The phrase “discharge ... of pollutants” did not first come into being in Nationwide’s insurance policy. The Federal Water Pollution Control Act makes it “the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1) (emphasis added); see also § 1251(a)(3) (“national policy” that “discharge of toxic pollutants in toxic amounts” be prohibited) (emphasis added). The Act further provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant and a discharge of pollutants.” § 1362(16) (emphasis added).

Other expressions in the pollution exclusion likewise reflect the terminology of environmental legislation and regulations. In CERCLA, “[t]he term ‘release ’ means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, dumping or disposing into the environment ... receptacles containing any hazardous substance or pollutant or contaminant.” 42 U.S.C. § 9601(22) (2000) (emphasis added). The “seepage” (or seeping) and “migration” of pollutants constitutes a “release ” in violation of CERCLA. United States v. Shell Oil Co., 841 F.Supp. 962, 969 (C.D.Cal.1993); Vt. v. Staco, Inc., 684 F.Supp. 822, 832-33 (D.Vt. 1988). Forms of the verb “disperse” also appear in environmental regulations. See, e.g., 40 C.F.R. Part 300 (2002).

In West American Ins. Co. v. Tufco Flooring E., Inc., 104 N.C.App. 312, 409 S.E.2d 692, 699-700 (1991), the court recognized the use of environmental phraseology in the absolute pollution exclusion:

The operative policy terms of the pollution exclusion clause imply that there must be a discharge into the environment before coverage can be properly denied. The operative terms in the version of the pollution exclusion clause at issue in this case are “discharge,” “dispersal,” “release,” and “escape.” While they are not defined in the policy, the terms “discharge” and “release” are terms of art in environmental law and include “escape” by definition and “dispersal” by concept.

“Discharge” is defined in the federal regulations interpreting the Resource, Conservation and Recovery Act (“RCRA”), section 1004(3) as the “accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of hazardous waste into or on any land or water.” 40 C.F.R. § 260.10 (1990).

After quoting from the definition of “release” in CERCLA, 42 U.S.C. § 9601(22), see page 326 of this opinion, the court concluded that

any “discharge, dispersal, release, or escape” of a pollutant must be into the environment in order to trigger the pollution exclusion clause and deny coverage to the insured.

Id. at 700.²⁵

In Nautilus Ins. Co. v. Jabar, 188 F.3d 27 (1st Cir.1999), a woman was exposed to hazardous fumes discharged by roofing products used by the insured, Jabar, to repair the roof at her place of employment. In the personal injury suit that followed, Jabar requested Nautilus, his insurer under a CGL policy, to defend the action and to indemnify him for any liability. Relying on the absolute pollution exclusion, Nautilus contested coverage. The trial judge granted summary judgment in Jabar’s favor, holding that the pollution exclusion did not apply to the facts before the court. The Court of Appeals affirmed, holding that the exclusion was ambiguous because it could reasonably be interpreted as applying only to environmental pollution, and that “an ordinary person in Jabar’s shoes would not understand that the policy did not cover personal injury claims like those asserted by the [plaintiff and her husband].” Id. at 30. The court continued:

[T]he terms used in the exclusion clause, such as “discharge,” “dispersal,” “release” and “escape,” are terms of art in environmental law and are generally used to refer to damage or injury resulting from environmental pollution. See Atlantic Mut. Ins. Co. v. McFadden, 413 Mass. 90, 595 N.E.2d 762, 764 (1992) (“[T]he terms used in the pollution exclusion ‘discharge,’ ‘dispersal,’ ‘release,’ and ‘escape,’ are terms of art in environmental law which generally are used with reference to damage or injury caused by improper disposal or containment of hazardous waste.”); West American Ins. Co.[, 409 S.E.2d. at 699] (noting that the terms “discharge” and “release” are terms of art in environmental law). Given this language, it is entirely reasonable that an ordinarily intelligent insured would understand this provision to exclude coverage only for injuries caused by traditional environmental pollution.

Id. (emphasis added).

Relying on the authorities cited in Nautilus, the New York Court of Appeals reached the same conclusion in Cont’l Cas. Co. v. Rapid-Am. Corp., 593 N.Y.S.2d 966, 609 N.E.2d at 513. The United States Court of Appeals for the Second Circuit followed suit in Stoney Run Co. v. Prudential-LMI Commercial Ins. Co., 47 F.3d 34, 37 (2d Cir.1995).

In Western Alliance, 686 N.E.2d at 999, a case involving a diner’s inhalation of carbon monoxide fumes produced by ovens at a restaurant, the Supreme Judicial Court of Massachusetts also recognized the significance of the use in the pollution exclusion clause of terminology of environmental law:

In addition to inclusion of the terms “discharge,” “dispersal,” “release,” and “escape,” the exclusion’s definition of “pollutants” endeavors to particularize the more general words “irritant or contaminant” by reference to “smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” Each of the latter words brings to mind products or byproducts of industrial production that may cause environmental pollution or contamination. While [the insurer] may have expected the provision to sweep broadly, and in clause (l)(a) to apply to premises used as a residence or a business, the exclusion has to be interpreted and applied in a commonsense manner with due attention to the circumstances of the accident giving rise to a coverage claim.

The exclusion should not reflexively be applied to accidents arising during the course of normal business activities simply because they involve a “discharge, dispersal, release or escape” of an “irritant or contaminant.”

Similarly, in Motorists Mut. Ins. Co. v. RSJ, Inc., 926 S.W.2d 679, 681 (Ky.Ct.App. 1996), the court stated that

the basic premise that terms used in insurance contracts “should be given their ordinary meaning as persons with the ordinary and usual understanding would construe them.” City of Louisville v. McDonald, Ky.App., 819 S.W.2d 319, 320 (1991). The drafters’ utilization of environmental law terms of art (“discharge,” “dispersal,” “seepage,” “migration,” “release,” or “escape” of pollutants) reflects the exclusion’s historical objective — avoidance of liability for environmental catastrophes related to intentional industrial pollution.

See also Gainsco Ins. Co. v. Amoco Prod. Co., 53 P.3d 1051, 1065 (Wyo.2002) (exclusion’s reference to “seepage, pollution and contamination” indicates environmental-type harm) (quoting Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., 132 F.3d 526, 530 (9th Cir.1997)); Atlantic Mut. Ins. Co. v. McFadden, 413 Mass. 90, 595 N.E.2d 762, 764 (1992) (pollution exclusion’s terms are terms of art in environmental law).

“[U]nless it is obvious that the terms used in an insurance contract are intended to be used in a technical connotation, we must construe them consistently with the meaning which common speech comports.” Corriea, 719 A.2d at 1239 (citation and internal quotation marks omitted); see also Chase, 780 A.2d at 1127. Ambiguities are not to be created by judicial flat. Nationwide insists that the terms of the exclusion are clear, and denies that the particular words on which Ms. Richardson relies are terms of art. According to Nationwide, Ms. Richardson’s argument “begs the question,” and Nationwide inquires: “[W]hat words could possibly be used to describe the underlying event that would be more plain or less susceptible to the charge that they are ‘terms of art’ than the words of the exclusion?” This rhetorical question, however, is Nationwide’s only direct answer to the analysis in West American, Nautilus and other decisions recognizing these words as terms of art.²⁶

In our view, the similarity between the language of the pollution exclusion and the terminology of environmental statutes, regulations, and judicial decisions is sufficiently striking to render a coincidence improbable. “Coincidences happen, but an alternative explanation not predicated on happenstance is often the one that has the ring of truth.” Bahura v. S.E.W. Investors, 754 A.2d 928, 943 (D.C.2000) (citations omitted). Thus, even assuming, ar-guendo, that the word “fumes” as used in the exclusion today appears on the surface to be unambiguous, a review of the entire clause and of its history and context suggests that the perceived clarity is superficial, Peoples Drug Stores, 470 A.2d at 754; that especially at the time of its adoption, the exclusion did not clearly mean what Nationwide now says it means; and that its language could rationally be read as referring to the kinds of very substantial cleanup costs that insurers were confronting as a result of the enactment of statutes directed at environmental contamination. In our view, the frequent references to “waste” and to “cleanups,” the enumeration as irritants or contaminants of byproducts of industrial production, and the use of so many environmental terms, together create at least an ambiguity as to the intended meaning of the words used in the pollution exclusion clause.²⁷

D. The need for a limiting principle.

A substantial number of courts, as we have seen, have found the exclusion to be ambiguous by reason of the use therein of industrial and environmental terminology. But this has not been the sole basis on which ambiguity has been discerned; many courts have stated that without some limiting principle, the pollution exclusion clause is ambiguous because, if its language is read “literally” in the manner here favored by Nationwide, it leads to results that can fairly be characterized as unreasonable. Our dissenting colleague argues ingeniously, albeit without citation of any authority dealing with the pollution exclusion, that the position taken by the courts in these cases is unpersuasive. In challenging the need for an external limiting principle, Judge Glickman presents some interesting arguments not made by Nationwide or by the courts that support Nationwide’s position. See post at pages 351-53. Nevertheless, the recognition by several federal appellate courts, and by the highest courts of New York and other states, of the necessity for such a limiting principle (with no contrary authority on the precise point at issue) makes these decisions worthy of consideration.

In Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043 (7th Cir.1992), the court stated:

The terms “irritant” and “contaminant,” when viewed in isolation, are virtually boundless, for “there is virtually no substance or chemical in existence that would not irritate or damage some person or property.” Westchester Fire Ins. Co. v. City of Pittsburg[h], 768 F.Supp. 1463, 1470 (D.Kan.1991). Without some limiting principle, the pollution exclusion clause would extend far beyond its intended scope, and lead to some absurd results. To take but two simple examples, reading the clause broadly would bar coverage for bodily injuries suffered by one who slips and falls on the spilled contents of a bottle of Drano,²⁸ and for bodily injury caused by an allergic reaction to chlorine in a public pool. Although Drano and chlorine are both irritants or contaminants that cause, under certain conditions, bodily injury or property damage, one would not ordinarily characterize these events as pollution.

(Emphasis added.); see also, e.g., Meridian Mut., 197 F.3d at 1182; Nautilus, 188 F.3d at 30; Doerr, 774 So.2d at 124; and Donaldson v. Urban Land Interests, Inc., 211 Wis.2d 224, 564 N.W.2d 728, 732 (1997), all quoting Pipefitters.²⁹ In Am. States Ins. Co. v. Kiger, 662 N.E.2d at 945, 948 (Ind.1996), the Supreme Court of Indiana made essentially the same point:

Clearly, [the pollution exclusion] clause cannot be read literally as it would negate virtually all coverage. For exam-pie, if a visitor slips on a grease spill then, since grease is a “chemical,” there would be no insurance coverage. Accordingly, this clause requires interpretation.

See also Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39-40 (Ind.2002) (following Ki-ger). Similarly, in Donaldson, 564 N.W.2d at 732, the Supreme Court of Wisconsin stated that “[t]he reach of the pollution exclusion clause must be circumscribed by reasonableness lest the contractual promise of coverage be reduced to a dead letter.”

In Pipefitters, the court went on to observe that, in order to avoid unreasonable results, many courts have taken “a common sense” approach to the construction of the pollution exclusion and have held that the exclusion does not apply to “injuries resulting from everyday activities gone slightly, but not surprisingly, awry.” 976 F.2d at 1043-44. The leakage and inhalation of carbon monoxide from a faulty heating unit in an apartment complex, as in the present case, may fairly be characterized as an everyday activity gone slightly awry, and significantly, the three state Supreme Courts that have decided the issue have all held that the absolute pollution exclusion does not bar coverage in such a case. Andersen, 757 N.E.2d at 332-34 (facts essentially identical to those here); Western Alliance, 686 N.E.2d at 998-1001 (carbon monoxide leak in restaurant); Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 79-82 (same in commercial building). See also Donaldson, 564 N.W.2d at 732 (pollution exclusion does not apply to carbon dioxide fumes exhaled in poorly ventilated building); Freidline, 774 N.E.2d at 39-40 (absolute pollution exclusion does not defeat coverage where toxic fumes from carpet glue allegedly caused injury to occupants of office building). As the court stated in Reg’l Bank of Colo., 35 F.3d at 498,

[w]hile a reasonable person of ordinary intelligence might well understand carbon monoxide is a pollutant when it is emitted in an industrial or environmental setting, an ordinary policyholder [or any other reasonable person] would not reasonably characterize carbon monoxide emitted from a residential heater which malfunctioned as “pollution.”³⁰ It seems far more reasonable that a policyholder [or other reasonable person] would understand the exclusion as being limited to irritants and contaminants commonly thought of as pollution and not as applying to every possible irritant or contaminant imaginable.

(Bracketed language added.)

The essential teaching of Pipefitters — namely, that the exclusion cannot reasonably be applied to every situation which the words could conceivably reach— significantly undermines the claim that the exclusion is plain and unambiguous. To determine the true meaning of the exclusion, the court must consider the context in which the clause was written and the purpose that it was designed to accomplish. The history of the successive pollution exclusion clauses, summarized in Part II of this opinion, thus becomes not only relevant but, in our view, all but determinative.³¹

E. The purpose of the exclusion.

The principal purpose of the absolute pollution exclusion, as we have seen, is not in substantial doubt. The predominant reason for drafting this exclusion for pollution-related injuries was to avoid the enormous expense and exposure resulting from the explosion of environmental litigation. Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 81; Doerr, 774 So.2d at 127. “[T]he purpose of the current [absolute] exclusion, like [that of] its predecessor, is to exclude governmental clean up costs from the scope of coverage.” Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 81 (quoting West American, 409 S.E.2d at 699) (internal quotation marks and brackets omitted); accord, Kerr-McGee Corp. v. Georgia Cas. & Sur. Co., 256 Ga.App. 458, 568 S.E.2d 484, 488 (2002) (purpose was “to bar coverage responsibility for government-mandated cleanup under the Superfimd for gradual environmental damages of any type”) (numerous citations omitted).

In Kent Farms, a man was severely injured while delivering fuel to the insured when a faulty valve in the fuel tank’s intake valve caused a major leak. In holding that the absolute pollution exclusion did not apply to this accident, the Supreme Court of Washington succinctly synopsized the relevant history as follows:

The qualified pollution exclusion clause, a precursor to the clause at issue here, came into existence so insurers could avoid the “yawning extent of potential liability arising from the gradual or repeated discharge of hazardous substances into the environment.” Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 698, 340 S.E.2d 374 (1986). Later, various forms of absolute pollution exclusion clauses, including the clause here, were incorporated into insurance policies in the wake of expanded environmental liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [§§ ] 9601-9675 (1995) (CERCLA). See Queen City Farms, Inc. v. Central Nat’l Ins. Co., 64 Wash.App. 838, 827 P.2d 1024 (1992) (surveying the history of the clause). These clauses were clearly intended to exculpate insurance companies from liability for massive environmental cleanups required by CERCLA and similar legislation. See generally Jeffrey W. Stempel, Reason and Pollution: Correctly Construing the “Absolute” Exclusion in Context and in Accord with its Purpose and Party Expectations, 34 Tort & Ins. L.J 1, 5 (1998). The insurance companies’ objective in creating both clauses was to avoid liability for environmental pollution. To read the absolute exclusion clause more broadly ignores the general coverage provisions.

This exclusion clause does not deal with the discharge of substances that may also be pollutants directly onto (and into) an individual; rather, this clause specifically addresses those situations in which injury was caused by environmental damage.32 We, therefore, hold the absolute pollution exclusion clause relates to environmental damage, and not to the facts of this case.

998 P.2d at 295 (emphasis added). The court went on to add:

The exclusion, when viewed in the context of its purpose, does not apply merely because a potential pollutant was involved in the causal chain. Instead, the exclusion applies to “occurrences” involving the pollutant as a pollutant. Our approach is consonant with the understanding of the average purchaser of insurance and consistent with the provisions of the insurance policy as a whole; that is, the pollution exclusion clause was designed to exclude coverage for traditional environmental harms. We will not expand the scope of the exclusion clause beyond its intended purpose.

Id. at 296 (emphasis in original).

We agree with the foregoing analysis. In light of the timing of the introduction of the absolute pollution exclusion and the problem which it was designed to address, the reasoning of the courts in Koloms, Andersen, Western, Alliance, Doerr, West American, and Kent Farms is persuasive. Moreover, as the court noted in Doerr, 774 So.2d at 127, there is no historical evidence suggesting that the exclusion was designed to achieve any other purpose; indeed, rather than disputing the history that we have summarized in this opinion, Nationwide and its supporting amicus, relying on rigorous “plain language” analysis, ask us not to consider history or context at all. We therefore follow Andersen, 757 N.E.2d at 333, and the other authorities we have cited, in holding that the purpose of the absolute pollution exclusion was to bar coverage for environmental degradation and for cleanups mandated by CERCLA and similar legislation.

F. Other considerations.

Our conclusion is bolstered by several other considerations. First, the Commissioner of the District’s Department of Insurance and Securities Regulation, in his very helpful amicus brief, has effectively urged us to reject the approach of those courts which view the exclusion as unambiguously precluding coverage on facts such as those here presented. After exploring the limits of an uncritical literalism, the Commissioner stated:

The pollution exclusion properly prevents extraordinary risks from being distributed among ordinary policy holders. It properly requires those businesses that employ such hazardous instrumentalities to obtain insurance particular to the character of the risk. It is not, however, properly applied to exclude from coverage the type[s] of risks that are ordinary and common to most if not all policyholders. To do so through a literal, contextless reading of the exclusion has on the one hand the possibility to render the insurance contract illusory, while at the same time opening the door to equally dangerous and unreal readings that fail to •exclude from coverage those risks that ought not to be spread among all policy holders.³³

“Because of the Commissioner’s role in the regulation of [the District’s] Insurance law, his opinion regarding matters within his province is persuasive.” Doerr, 774 So.2d at 134.³⁴

Second, the pollution exclusion must, as we have noted, be read in conjunction with REO’s entire CGL policy. An injury caused by a faulty furnace is the very kind of risk for which a CGL policy would be expected to provide protection. It is the result of an “everyday activity gone slightly, but not surprisingly, awry.” Pipefitters, 976 F.2d at 1044. Almost any mishap at an apartment complex could be caused by contact with some “contaminant” or “irritant.” In Nautilus, the court held that the insurer’s construction of the exclusion, which paralleled the construction urged here by Nationwide, “would render the Nautilus policy virtually meaningless to [the insured].” 188 F.3d at 30. If the present case is different at all from Nautilus in this respect, this is so only as a matter of degree; a broad interpretation of the absolute pollution exclusion — the kind of construction against which the court warned in Pipefitters— would obviously curtail REO’s coverage to a substantial degree. It is undisputed that the accident would have been covered by the policy prior to the introduction of the absolute pollution exclusion, see, e.g., Doerr, 774 So.2d at 133-34, and it is difficult to believe that such a major reduction in. coverage would have been effected without any evident announcement describing the character of the change and without any adjustment of the insured’s premiums. Cf. Dimmitt Chevrolet, Inc. v. Southeastern Fid. Ins. Corp., 636 So.2d 700, 703 (Fla.1994) (noting claim that approval by state regulators of pollution exclusion, without a corresponding reduction in premiums, indicated that, as some insurance representatives asserted at the time, “the clause did little more than clarify coverage”).³⁵

Finally, there is at least some indication that, during the 1980s, when approval was being sought for the absolute pollution exclusion, representatives of the insurance industry sang a tune markedly different from the position now being taken by Nationwide and other insurers:

For example, during testimony at a 1985 hearing conducted by the Texas State Board of Insurance, Ward Harrel, a representative of Liberty Mutual Insurance Company, indicated that the pollution exclusion could be read literally to exclude coverage in situations where “no one would read it that way,” noting that “our insureds would be at the State Board ... quicker than a New York minute if, in fact, everytime [sic] a bottle of Clorox fell off a shelf at a grocery store and [sic] we denied the claim because it’s a pollution loss.”

Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 519-20 n. 3 (Tex. 1995) (per curiam) (emphasis added), quoted in Doerr, 114, So.2d at 134 n. 16.³⁶ In addition, there has been “distinct criticism of the [absolute pollution exclusion] clause, or at least of the insurance industry’s interpretation of it and activities in litigating it, on the grounds that ... [, inter alia,] the insurance industry gained state regulatory approval for the clause by interpreting it much less strictly before it was approved.” 9 Couch, 127:14 at 127-37.³⁷ If the absolute pollution exclusion had been represented, at the time of its introduction, as meaning what Nationwide now says it means, we question whether it would have been approved by regulators in the District and in other jurisdictions without, at least, a clearer exposition of the effect of the exclusion, and without an appropriate adjustment of the premiums to be paid by the insured to match the substantial reduction in coverage.

IY.

RESPONSE TO DISSENT

Our dissenting colleague disagrees, sometimes quite emphatically, with our major conclusions and with the reasoning that has led us to reach them. Our decision, according to Judge Glickman, is “methodologically flawed” and “turns the settled interpretive rale on its head and embraces its diametrical opposite.” The majority, he writes, has “disregard[ed] or misappl[ied] settled legal principles,” has “engaged in dubious appellate fact finding on a deficient record,” and has “thwart[ed] the purpose and ovemd[den] the clear meaning of the [pollution exclusion] clause.” As noted at pages 319-20, Judge Glickman is not alone in his view of the merits, and we acknowledge that this case presents difficult issues with respect to which reasonable persons can differ and regarding which distinguished courts have differed.

In our discussion of these issues we have previously addressed a number of Judge Glickmaris contentions. We now undertake to respond specifically to those of our dissenting colleague’s principal arguments with which we have not dealt fully in the preceding discussion.

A. Plain language, context and history.

Judge Glickmaris main disagreement with the majority is rooted in his insistence that the pollution exclusion is unambiguous, that resort to historical context is unnecessary and improper, and, essentially, that if correct legal principles are applied, Nationwide wins in a cakewalk. But as we have explained at pages 321-24, the language of the clause must be examined as a whole, and in terms of what it would reasonably have meant to the insurance industry and to regulators when the exclusion was revised almost two decades ago. When all of the words of the exclusion are considered from that perspective, with due weight accorded to the historical circumstances that gave them birth, their purported clarity evaporates. To focus on the definitional words of the clause without reference either to the import of the clause as a whole or to the mischief that the exclusion was designed to redress would, indeed, “make a fortress out of the dictionary,” Cabell, 148 F.2d at 739, and mask the true intent of those who wrote and approved the exclusion.

B. Indoor pollution.

Judge Glickman reads the logic of our opinion to suggest that the “absolute pollution exclusion” can have no application to “indoor” pollution. We do not take this position. A simple illustration will suffice: If, for example, an insured produces carbon monoxide fumes during the manufacturing process, and if these fumes are then inhaled by persons on the premises, then the exclusion may well preclude liability on the part of the insurer for any injury suffered by those persons.³⁸ That situation differs markedly, however, from the present case, in which the insured is not an industrial polluter but, rather, the manager of an apartment house, and in which the plaintiff allegedly inhaled fumes which entered her unit directly from a heating device in the furnace room. This situation has no conceivable connection with waste dumps or government-mandated cleanup costs or with any of the other problems that led to the adoption of the absolute pollution exclusion.³⁹ Assuming that indoor industrial or similar pollution falls within the exclusion, we find it revealing that the courts in, inter alia, Andersen, Western Alliance, and Koloms have sensibly declined to apply the exclusion to the kind of situation presented here.-⁴⁰

In a passage that is not especially understated, Judge Glickman says, page 346, post, that in its discussion of hypothetical indoor pollution at a manufacturing plant, the majority has been forced into a “remarkable about-face,” that the majority has “implicitly repudiated] virtually all the cases and premises on which it relies,” and that “[w]ith this concession, the majority’s position collapses.” To catalogue all that we see as inaccurate in our colleague’s argument is not easy, but we note the following:

1. An “about face,” like beauty or its lack, is in the eye of the beholder, but so far as we are aware, there has been no change of direction of any kind in the majority opinion. Judge Glickman assuredly has not identified one, nor has he pointed to any contradiction between any statements in the majority opinion.

2. The majority has not repudiated the cases on which it relies. None of these cases involved the escape of carbon monoxide or other fumes on industrial premises during the manufacturing process, and neither the judges in the majority nor our dissenting colleague can divine, without the use of a crystal ball, how the courts on whose decisions we have relied would decide a purely hypothetical case not before them. Indeed, the question — perhaps not an easy one — whether the absolute pollution exclusion would apply in such circumstances, is not before us either, for the facts of the present case are, from the perspective of the purposes of the exclusion, altogether different from the hypothetical circumstances under discussion. 3. Surely, the reports of the demise or “collapse” of the majority’s position are, to say the least, more than a little exaggerated.

At bottom, Judge Glickman’s argument is that if the escape of carbon monoxide fumes is within the exclusion anywhere, it is within the exclusion everywhere. This means, according to our colleague, that what happened to Ms. Richardson as a result of a malfunctioning apartment house furnace was, for purposes of the exclusion, identical to the pollution of an indoor industrial site as a result of the release of pollutants in the manufacturing process. Further, Judge Glickman suggests, the words of the exclusion are so unambiguous that if the second of these situations is “pollution,” then the first must be too. This, according to our colleague, should be evident to any reasonable person. Judge Glickman takes this position notwithstanding the text of the entire exclusion clause, its repeated focus on waste, detoxification and the like, and the essentially undisputed purpose for which the clause was adopted. In our view, numerous authorities cited in this opinion, including, inter alia, Western Alliance, 686 N.E.2d at 999, Reg’l Bank of Colo., 35 F.3d at 498, and the Brief for the Commissioner, quoted at page 333, reject this approach as context-less and unreasonable, and we cannot agree that anything in the majority opinion has caused these authorities to “collapse.” C. The elimination of “into or upon land, the atmosphere, or any water course or body of water.”

According to Judge Glickman, post at 359, “[t]he deliberate removal of the phrase ‘into or upon land, the atmosphere or any water course or body of water’ signifies that the exclusion now does apply to indoor air pollution,” because, as revised, “the exclusion does not use language descriptive of the natural environment only.” (Citations omitted.) As previously noted at pages 336-37, we do not assert that the exclusion can have no application to indoor pollution. But our dissenting colleague’s position goes beyond any hypothetical indoor/outdoor distinction; he argues that the elimination of “upon land, the atmosphere, or any water course or body of water” cannot be reconciled with the proposition that the exclusion is restricted to environmental cleanups or to similar environmental degradation. His point is a serious one, and it makes this case more difficult than it would otherwise be.

But the Supreme Court of Illinois has confronted and rejected a similar contention in Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 81-82, and we quote from that opinion at some length:

ASI [the insurer] submits that the deletion of the requirement that the pollution be “[discharged] into or upon land, the atmosphere, or any watercourse or body of water” should be viewed by this court as a clear signal of the industry’s intent to broaden the exclusion beyond traditional environmental contamination. We disagree. This same argument was rejected in West American Insurance Co. v. Tufco Flooring East, Inc., [supra,] 104 N.C.App. 312, 409 S.E.2d 692, a case which involved the application of the pollution exclusion to damages caused by the release of fumes from a flooring sealant. In Tufco, the court noted that, even after its amendment in 1986, the absolute pollution exclusion continued to employ terms of art which bespeak of environmental contamination. The court reasoned:

“Because the operative policy terms ‘discharge,’ ‘dispersal,’ ‘release,’ and ‘escape’ are environmental terms of art, the omission of the language ‘into or upon land, the atmosphere or any watercourse or body of water’ in the new pollution exclusion is insignificant. The omission of the phrase only removes a redundancy in the language of the exclusion that was present in the earlier pollution exclusion clause. Consequently, we find that any ‘discharge, dispersal, release, or escape’ of a pollutant must be into the environment in order to trigger the pollution exclusion clause and deny coverage to the insured.” Tufco, 409 S.E.2d at 700.

See also Center for Creative Studies, 871 F.Supp. [941,] 946 [ (E.D.Mich.1994) ] (“the fact that the [former version] contained language relating to discharge ‘into or upon land, the atmosphere ...’ is not significant”). We agree with this analysis. In our view, the deletion of the aforementioned language does not portend an expansion of the pollution exclusion beyond the context of traditional environmental contamination.

The court’s treatment of this issue in Koloms is significant because, in a case decided under the prior language of the exclusion, the same court had held that “the atmosphere” meant “the external atmosphere which surrounds the earth” rather than “the multiple, diverse internal environs or surroundings of individual buildings.” United States Fid. & Guar. Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 161 Ill.Dec. 280, 578 N.E.2d 926, 933 (1991). In Koloms, however, the court recognized that notwithstanding the removal from the exclusion of the words “into or upon land, the atmosphere or any watercourse or body of water,” the exclusion still refers to “traditional environmental contamination,” and we think that this is true whether that contamination manifests itself indoors or outdoors.

Judge Glickman faults the reasoning of Koloms because, he says, post at 359 note 25, the revised version of the exclusion no longer contained the one phrase in the clause connoting that the exclusion applied only to external pollution. As we see it, however, the entire phrasing of the exclusion, beginning with the enumeration of eight pollutants collectively reminiscent of byproducts of industrial pollution, and including the extensive use of environmental terms, mirrors the very problem which the exclusion was designed to resolve — insurer liability for major government-mandated environmental cleanups. Conditions calling for such a cleanup may exist within a factory as well as at a waste dump, and the removal of the quoted language from the prior exclusion arguably confirms that the absolute exclusion would apply at an indoor industrial site. This is, however, a long way indeed from a faulty furnace in an apartment house. Moreover, if the deletion of the phrase had effected such a major reduction in coverage, this would surely have been publicly announced with some specificity, and would also have been reflected in the premiums which an insured would be required to pay. See the discussion at pages 333-34 & note 35.⁴¹

D. The application of CERCLA

Judge Glickman argues, pages 349-50, post, that “federal environmental law in fact does address non-industrial air pollution.” Therefore, according to our colleague, even if the absolute pollution exclusion was adopted in response to the enactment of CERCLA and other environmental legislation, Nationwide still prevails.

In support of this contention, Judge Glickman cites B.F. Goodrich Co. v. Martha, 958 F.2d 1192, 1199-1200 (2d Cir. 1992), and United States v. Alcan Aluminum Corp., 990 F.2d 711, 725 (2d Cir. 1993). The first of these decisions addressed the question whether CERCLA provides an exemption for municipalities; the second involved the potential liability of Cornell University resulting from the university’s disposition of coal waste water and related hazardous waste problems. These decisions do not bear the slightest resemblance to the situation before us. Indeed, in the B.F. Goodrich case, which concerned “municipal solid waste,” the court stated: “In CERCLA[,] Congress enacted a broad remedial statute designed to enhance the authority of the EPA to respond effectively and promptly to toxic pollutant spills that threatened the environment and human health.” 958 F.2d at 1197 (emphasis added).⁴²

That is all a far cry indeed from REO’s defective furnace. When the insurance industry, concerned about billions of dollars in liability for retroactive clean-up costs, see discussion at pages 317-18, presented the absolute pollution exclusion to state regulators, it may well have been concerned about a university’s coal waste problems or a municipality’s solid waste, but there is no indication that a defective furnace in an apartment building appeared within or near the industry’s horizon. The B.F. Goodrich and Alcan cases therefore provide scant solace to our dissenting colleague’s thesis.

E. Purported vagueness.

Finally, Judge Glickman argues that we should adopt Nationwide’s “plain meaning” construction of the exclusion because, he says, the majority’s interpretation of the clause is too vague. He cites Doerr, 774 So.2d at 134-36, in which the court indicated that a number of different factors should be considered in the determination whether an insured is a “polluter.” This approach, according to our dissenting colleague, denies the exclusion its requisite clarity.⁴³

But it is the court’s duty to determine whether or not the situation before it — here Ms. Richardson’s inhalation of carbon monoxide fumes from an apartment house furnace — falls within the absolute pollution exclusion in REO’s policy⁴⁴ We must make that determination on the basis of the language of the exclusion and the circumstances surrounding its adoption. Merriam, 107 U.S. at 441, 2 S.Ct. 536. If we conclude, as we believe that we must, that the case before us falls outside the exclusion because it does not involve the kind of situation for which the exclusion was designed, we are not free to hold otherwise because of the possibility that other, different cases may be more difficult to decide. In other words, it would be impermissible for the court to deny coverage to which an insured is entitled on the merits in order to avoid potential complexities in hypothetical future litigation. We note, in any event, that our dissenting colleague has also recognized a limiting principle to the language of the exclusion — it must be given its “ordinary meaning in common parlance,” see page 344, post — and that the clarity and certainty of result which he claims for his approach, if adopted, might very well in the end also prove somewhat ephemeral.

V.

CONCLUSION

For the foregoing reasons, we answer the certified question in the negative.

So ordered.

1 . For reasons of space, we have quoted only the foregoing sentences in the text. The exclusion clause, however, cannot be properly understood unless it is read in its entirety. The clause provides as follows:

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;

(b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste;

(c) Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for any insured or any person or organization for whom you may be legally responsible; or

(d)At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are performing operations:

(i) If the pollutants are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor; or

(ii) If the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the effects of pollutants.

Subparagraphs (a) and (d)(i) do not apply to "bodily injury” or "property damage” arising out of heat, smoke or fumes from a hostile fire

As used in this exclusion, a hostile fire means one which becomes uncontrollable or breaks out from where it was intended to be.

(2) Any loss, cost or expense arising out of any:

(a) Request, demand or order that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the effects of pollutants; or

(b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of pollutants.

Pollutants means 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.

2 . The somewhat complex procedural history of the case is set forth in Nationwide I, 205 F.R.D. at 3-8, but we address only so much of that history as is relevant to this opinion.

3 . Andersen v. Highland House Co., 93 Ohio St.3d 547, 757 N.E.2d 329 (2001); Western Alliance Ins. Co. v. Gill, 426 Mass. 115, 686 N.E.2d 997 (1997); Am. States Ins. Co. v. Koloms, 177 Ill.2d 473, 227 Ill.Dec. 149, 687 N.E.2d 72 (1997).

4 . See Part I of this opinion, infra.

5 . See Part III, infra.

6 . Our dissenting colleague chides us, post at 343, for beginning our inquiry by setting out the historical context in which the absolute pollution exclusion came to be included in comprehensive general liability policies. We have quoted the entire clause, and not merely parts of it, in footnote 1 to this opinion. In any event, “[t]he meaning of words ... commonly depends on their context .... In interpreting the words and conduct of the parties to a contract, a court seeks to put itself in the position they occupied at the time the contract was made.” Restatement (Second) Of Contracts § 202 cmt. b (1981). The court must therefore determine "what a reasonable person in the position of the parties would have thought the disputed language meant,” Christacos v. Blackie’s House of Beef, Inc., 583 A.2d 191, 194 (D.C.1990) (emphasis added) (citation omitted), at the time that the language was written. See also Part III B of this opinion, infra.

7 . The new clause also omitted the requirement that the discharge be “into or upon land, the atmosphere or any water course.” Nationwide II, 348 U.S.App.D.C. at 128, 270 F.3d at 952 (citations omitted). See discussion at pages 337-38, infra.

8 . Given the essentially uncontradicted history leading to the adoption of the absolute pollution exclusion, as described by the highest courts of several states, see, e.g., Western Alliance, 686 N.E.2d at 999; Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 79-81; Andersen, 757 N.E.2d at 332-33; Doerr, 774 So.2d at 126-28, and by the District's Commissioner of Insurance, we do not agree with our dissenting colleague that the absence of "a detailed factual record” precludes us from considering that history.

9 . These authorities are summarized in Nationwide II, 348 U.S.App.D.C. at 132, 270 F.3d at 956. Perhaps the most forceful statement of this position can be found in the dissenting opinion of Justice Heiple in Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 82:

Choosing to override the clear language of the insurance contract, however, the majority purports to divine the unstated intent of the parties. With this analysis, coverage is found to be provided. What we have here is not a case of contract construction. It is, rather, a case of contract reconstruction. As such, it is thimblerigging pure and simple. It also indicates the depths to which a court will go to achieve a desired result. If any principle can be derived from this ruling, it is that words have no meaning.

Nationwide and its supporting amicus, the Complex Insurance Claims Litigation Association, assert that the authorities which hold that the absolute pollution exclusion is unambiguous represent a substantial majority of the decisions. Ms. Richardson vigorously contests this thesis, and the cases are so numerous and so diverse in their factual scenarios that a precise assessment of the weight of authority is difficult. See William B. Johnson, Annotation, Construction and Application of Pollution Exclusion Clause in Liability Insurance Policy, 39 A.L.R.4th 1047 (1985 & Supp. 2002); Claudia G. Catalano, Annotation: What Constitutes “Pollutant, ” “Contaminant,” “Irritant,’’ or “Waste" Within Meaning of Absolute or Total Pollution Exclusion in Liability Insurance Policy, 98 A.L.R. 5th 193 (2002); Sara M. Thorpe and Matthew S. Foy, Carbon Monoxide and the Pollution Exclusion, For The Defense, May 2003, at 45. In Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178 (6th Cir.1999), the court, in holding that, under Michigan law, the pollution exclusion "applies only to injuries caused by traditional environmental pollution,” id. at 1181, cited twenty-two federal and state court decisions supporting its position and seventeen holding the other way. Id. at 1181-83. Some fifteen years ago, well before most of the cases now relied on by both parties were decided, one federal court described the division between the courts with respect to the "sudden and accidental” exception as follows:

This court recognizes that there is a plethora of authority from jurisdictions throughout the United States which, depending on the facts presented and the allegations of the underlying complaints, go "both ways" on the issues presented today. The cases swim the reporters like fish in a lake. The [djefendants would have this [cjourt pull up its line with a trout on the hook, and argue that the lake is full of trout only, when in fact the water is full of bass, salmon and sunfish too.

Pepper’s Steel & Alloys v. United States Fid. & Guar. Co., 668 F.Supp. 1541, 1549-50 (S.D.Fla.1987) (Spellman, J.) The current state of the absolute pollution exclusion is as uncertain today as the meaning of "sudden and accidental” was when Pepper’s Steel & Alloys was decided.

10 . These decisions are summarized in Nationwide II, 348 U.S.App.D.C. at 130-31, 270 F.3d at 954-55.

11 . But this argument takes the word "fumes” out of context, at the risk of distorting the meaning of the exclusion as a whole. See Part III C, infra. "[A] word is known by the company it keeps.” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961); see also Edwards v. United States, 583 A.2d 661, 664 (D.C.1990) (quoting Jarecki). Nationwide’s argument fails to take this familiar proposition into account.

12 . This is especially true where, as here, the party claiming that the words are plain is relying on a part of the language of the exclusion without reference to the larger context of the entire clause.

13 . Although Judge Hand's subject was the construction of a statute, his reasoning applies with equal force to any writing, and certainly to an insurance policy. In this case we are dealing with contractual language drafted by representatives of the insurance industry, presented to state regulators, and intended to have a uniform meaning and general application wherever the form policy was utilized. In this respect, it is in some ways quite similar to a statute.

14 . In Cameron, for example, a decision which was written by the author of this opinion, there was no contention presented by any party that the words used in the "surface water” exclusion there at issue had a history, or were adopted in a context in any way comparable to the situation in the present case. The court's comment that "extrinsic evidence” is not to be considered where the words appear unambiguous was not intended to suggest that, where context affects meaning, the court should not consider the circumstances under which ostensibly unambiguous language was used. Khiem v. United States, 612 A.2d 160, 164 (D.C.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993), is apropos:

In Kraft v. Kraft, 155 A.2d 910 (D.C. 1959), the court pointed out that:

It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.

155 A.2d at 913. See also Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 89 L.Ed. 118 (1944), where the Supreme Court aptly stated:

It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the order under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.

(Emphasis added in Khiem.)

15 .We ought not to assume too readily that our decisions should be construed in a way that makes them inconsistent with the Restatement, which is written by the American Law Institute (ALI), an organization comprised of especially distinguished judges, attorneys, and scholars. See, e.g., Poretta v. Superior Dowel Co., 153 Me. 308, 137 A.2d 361, 373 (1957). "The Restatement may be regarded both as the product of expert opinion and as the expression of the law by the legal profession.” Id. Although we are not required to follow the Restatement, we should generally do so "where we are not bound by the previous decisions of this court or by legislative enactment, ... [for] by so doing uniformity of decision w[ill] be more nearly effected.” Smith v. Normart, 51 Ariz. 134, 75 P.2d 38, 42 (1938); see also Ellis v. James V. Hurson Assocs., 565 A.2d 615, 618 (D.C. 1989); Gallimore v. Washington, 666 A.2d 1200, 1213-14 (D.C.1995) (dissenting opinion) (addressing an issue not reached by the majority).

16 . Courts have recognized two categories of ambiguity: (1) the contractual language may be "intrinsically unclear,” or (2) it may, while clear on its face, "become uncertain when applied to a particular object or circumstance.” Koloms, 227 Ill.Dec. 149, 687 N.E.2d at 76 (citations omitted).

17 . In his amicus brief, the Commissioner has provided a number of instances in which rigorous literalism would achieve obviously unintended results even in this very case. As the Commissioner points out, for example,

[paragraph (l)(a) [of the exclusion] requires that the place of the injury have been "owned or occupied by, or rented or loaned to” the insured. Property managers, however, do not typically own, occupy, lease or borrow premises from principal; therefore paragraph (l)(a) would not generally apply to them and there would be coverage in this case. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462[, 464-67] (Tex.1998) ("occupancy” requires more than mere physical presence).

Brief for Commissioner at 18 n. 23.

18 . Some courts disagree. See, e.g., Deni Assocs. of Fla. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1138 (Fla.1998) ("this [c]ourt cannot examine the history of the exclusion because the language is clear and unambiguous and to resort to history would, therefore, be contrary to Florida law”); accord, Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746, 635 N.W.2d 112, 119-20 (2001). In our view, however, these decisions wrench the language of the policy from its context and, by "mak[ing] a fortress out of the dictionary,” Cabell, 148 F.2d at 739, distort the meaning of the exclusion.

19 . See Anthony Hope, The Prisoner Of Zenda (1894).

20 . See William Shakespeare, Twelfth Night, Or What You Will.

21 . As stated in a leading text:

One cannot insist too often or too vigorously that language at its best is always a defective and uncertain instrument, that words do not define themselves, that terms and sentences in a contract do not apply themselves to external objects and performances, that the meaning of such terms and sentences consists of the ideas that they induce in the mind of some individual person who uses or hears or reads them, and that seldom in a litigated case do the words of a contract convey one identical meaning to the two contracting parties or to both parties and a third person.

5 Margaret N. Kniffin, Corbin On Contracts § 24.7, at 30-31 (1998) (footnote omitted).

22 . As Judge Glickman observes in his dissent, post at 347, "the typical commercial general liability policyholder has no inkling of the 'history and context' of the pollution exclusion, the arcana of environmental law, or the terminology of that esoteric field.” But unless the meaning of the language of the pollution exclusion has changed since it was written — and Nationwide has made no such claim — the proper inquiry is what the language meant to the representatives of the insurance industiy and to regulators at the time that the language was written.

23 . Our dissenting colleague correctly notes that carbon monoxide may fairly be considered a "fume.” But where "fumes” is one of eight terms, all of which bring to mind waste dumps and industrial pollution, the notion that the exclusion was intended to include carbon monoxide emanating from a furnace in an apartment building becomes, at least, a good deal less than certain.

Judge Glickman also asserts, post at 349, that the enumerated pollutants may bring to mind, inter alia, agricultural, vehicular, and landlord-caused pollution, as well as industrial pollution. On this point, we agree with the interpretation of the named pollutants and of their significance by the unanimous Supreme Judicial Court of Massachusetts in Western Alliance, rather than with the reading of that listing suggested by our colleague.

24 . E.g., "treat, detoxify and neutralize” (used three times), as well as the reference in section 2(b) of the exclusion to suits for damages by a governmental agency.

25 . But see the discussion at pages 337-38, infra.

26 . Obviously, decisions which apply the exclusion to the kind of scenario presented here reject, at least implicitly, the reasoning of the West American line of cases. For example, in Nat'l Elec. Mfrs. Ass’n v. Gulf Underwriters Ins. Co., 162 F.3d 821, 825 (4th Cir.1998), the court, applying what it believed to be District of Columbia law, described a policy containing the absolute pollution exclusion as "clear and unambiguous” and as "containing] neither technical terms nor terms of art." (Emphasis added.) While using the emphasized language, the court failed to address, or even to mention, the line of cases in which, for reasons explicated in West American and Western Alliance, the courts have viewed these words as environmental "terms of art.”

In the present case, the proposition that the words used in the absolute pollution exclusion are terms of art meshes nicely with the timing of the exclusion’s birth and with the evident purpose — the avoidance of insurer liability for environmental cleanup costs — which, as a matter of history, the clause was designed to achieve. To exclude from consideration this meshing between the language of the exclusion and the concerns of the industry when the exclusion was adopted is to ignore reality.

27 . Our dissenting colleague suggests that many of the terms at issue were in the original pollution exclusion, which predated most of the environmental statutes and regulations, and that as a result, these terms cannot be said to be terms of art derived from laws that did not exist when the words were originally written. But when the relevant parties — the insurance industry and state regulators — considered the language in the 1980s, the precise issue at hand was the "possibility that ... [an insurance company] could find itself indemnifying industries facing the staggering retroactive pollution clean-up costs imposed by the 1980 enactment of the [CERCLA].” Essex Ins. Co., 863 F.Supp. at 39-40. Representatives of the insurance industry wrote these words, and the regulators approved them, against the backdrop of new environmental statutes and regulations which, if the costs of coming into compliance were chargeable to insurance companies, imperiled the insurers’ financial viability. It is therefore fair to say, as the United States Court of Appeals for the First Circuit has explained, that the parties employed "terms of art in environmental law [that] are generally used to refer to damage or injury resulting from environmental pollution.” Nautilus, 188 F.3d at 30.

28 . Perhaps the “Drano” example is not the best illustration of the perceived unreasonableness of the clause, for arguably, as our dissenting colleague suggests, spilled Drano on which a person slips and falls is not acting as an “irritant”; we note, however, that the exclusion does not contain the words "acting as”; moreover, the word "irritant” is a broad term not defined in the policy. See Reg’l Bank of Colo. v. St. Paul Fire & Marine Ins. Co., 35 F.3d 494, 498 (10th Cir.1994) (discussing vagueness of term "irritant”). The "chlorine” example invoked by the court in Pipefitters, on the other hand, is sound; if too much chlorine is placed or "released” into a swimming pool and “seeps” into a victim’s body, then it is at least arguably acting as a "contaminant." Placing too much chlorine in a swimming pool is not so very different, qualitatively, from releasing too much waste into a lake or a river. Our dissenting colleague's reference to common sense in this connection (post at note 352) may therefore be a two-edged sword. Moreover, if read literally in the manner Nationwide suggests, the pollution exclusion would apply to damage caused when a heating unit leaks carbon monoxide, while, incongruously, the insurer would be required to defend and indemnify. notwithstanding the exclusion, if the heating unit exploded.

The analysis by the United States Court of Appeals for the Seventh Circuit in Pipefitters has been adopted by at least two other Courts of Appeals and by the highest courts of at least three states. See text, infra, at page 330. We are aware of no decision finding fault with the court’s reasoning in Pipefitters, and Judge Glickman has cited none. Indeed, in Certain Underwriters at Lloyd’s London v. C.A. Turner Constr. Co., 112 F.3d 184, 188 (5th Cir.1997), a decision relied on by Nationwide which favors a "literal” approach to the issue before us, the court uncritically quoted the very language from Pipefitters which our dissenting colleague rejects. Finally, a representative of the insurance industry, testifying in 1985 before the Texas State Board of Insurance, acknowledged that, read literally, the pollution exclusion could be construed to exclude coverage in situations to which it was not designed to apply. See text, infra, at 330.

29 . Pipefitters was also quoted at length in Nationwide II, 348 U.S.App.D.C. at 131, 270 F.3d at 955, but the court in that case has obviously left to this court the determination whether and to what extent Pipefitters should be viewed as persuasive.

30 . Judge Glickman argues, post at 341, that because carbon monoxide can pollute the atmosphere and is extensively regulated as a pollutant, it must have operated as a pollutant in this case. For the reasons stated by the court in Reg’l Bank of Colorado and quoted in the text preceding this footnote, we are constrained to disagree.

31 . Judge Glickman argues that "[r]ead literally, the pollution exclusion applies to pollution. That is what its heading says.” Post at 352. But read literally, the exclusion could apply to bodily injury if a liquid "contaminant,” e.g., vinegar (acetic acid) or lemon juice (citric acid), accidentally seeped or migrated or escaped, i.e., spilled, on the floor of a private dwelling and if a house guest were to slip and fall. Although the words of the exclusion could cover this situation, Judge Glickman would protest, and rightly so, that this is not pollution as that word is commonly understood. But that is our dissenting colleague’s own limiting principle to the purportedly unrestricted language of the exclusion. To determine which limiting principle applies, we must necessarily go to context and history, and reasonable people may surely differ as to whether carbon monoxide from a defective furnace in an apartment house is "pollution” in the conventional sense of the word. Thus, on our dissenting colleague's own terms, the clause is ambiguous.

32 . By contrast, Ms. Richardson alleges that a furnace in the furnace room of the complex at which she was employed emitted carbon monoxide fumes into her unit and poisoned her.

33 . Thus, in his amicus brief, the Commissioner rejects the position that the absolute pollution exclusion unambiguously means what Nationwide now says it means. We have no reason to believe that the Commissioner’s understanding of the clause (or the understanding of the Commissioner’s predecessor) at the time of the clause’s submission differed from the Commissioner’s understanding of it today.

34 . Our dissenting colleague insists that the approval of the absolute pollution exclusion by the District's regulators two decades ago demonstrates that the clause should be read "literally” as Nationwide reads it. Judge Glickman’s thesis, however, faces a formidable obstacle in the Commissioner’s brief, which explicitly rejects rigorous and context-less "plain language” analysis, provides examples showing how this type of analysis can run awry, and urges reversal of the summary judgment entered by the District Court in Nationwide’s favor.

35 . If the absolute pollution exclusion had been accompanied by a reduction in premiums, we would have expected Nationwide and its amicus to have apprised the court of any such reduction. Its silence on the issue, and the absence of any mention of a reduction in any of the court decisions cited to us, surely speaks volumes. With respect, we do not see how the announcements by the ISO quoted by Judge Glickman, see post at 358 & note 24, bear at all on our point that a purported major curtailment of coverage was not accompanied by a reduction in the cost of the policy.

36 . Given the insurance representative’s acknowledgment that a strictly literal reading of the exclusion would and should be avoided, we find footnote 21 to the dissent perplexing if not inexplicable.

37 . As previously noted, see page 316, the Supreme Court of New Jersey has catalogued a substantial number of misleading statements by representatives of the insurance industry to state regulatory bodies with respect to the earlier version of the pollution exclusion. Morton Int’l, 629 A.2d at 848-55, 868-70. Most, if not all, of these representations were made in the early 1970s. Counsel for Ms. Richardson has attached to one of his submissions an article in which it is alleged that the industry’s deceptive practices continued in connection with the introduction of the absolute pollution exclusion during the 1980s, see John A. MacDonald, Decades of Deceit: The Insurance Industry Incursion Into the Regulatory and Judicial Systems, 7 Coverage at 3, 8 et seq. (Nov./Dec. 1997), and the passage from COUCH quoted in the text at page 316, suggests that this may possibly be so. Nevertheless, in light of the limited information provided to us, we do not exaggerate the significance of this point.

Ms. Richardson has contended in this case that statements made to regulators by representatives of the insurance industry when the absolute pollution exclusion was presented for approval, e.g., Wade Harrel’s statements to the Texas State Board of Insurance, which we have quoted at page 334, are relevant to the meaning of the exclusion. Contrary to our dissenting colleague’s assertion, see pages 356-57, post, our analysis of Ms. Richardson’s contention therefore cannot be dictum.

38 . Indeed, as Judge Glickman points out, post at 345, the exclusion by its terms applies to the discharge of pollutants "at” as well as "from” any premises, site or location of the insured.

39 . We emphasize that this is not a case of "sick building syndrome” in which the use of defective construction materials has polluted the indoor environment and may well have necessitated an environmental cleanup.

40 . Our dissenting colleague also argues that the policy's "hostile fire” exception to the exclusion would be unnecessary if the exclusion applied only to waste dumps or industrial pollution and the like. But a hostile fire can occur as readily in a factory, e.g., a tire manufacturing plant, as in an apartment house, and the exception can serve the same purpose in each. Surely the tire manufacturer who suffers a hostile fire should be compensated by insurance for the otherwise traditional environmental pollution caused by the resulting smoke, and the "hostile fire” exception assures that such compensation will be forthcoming.

41 . It is, of course, possible that even though, as we have demonstrated, the main thrust of the absolute pollution exclusion was to avoid insurer liability for government-mandated cleanups, the clause was also intended to eliminate coverage for landlords or restaurateurs when a furnace on their property has malfunctioned. Surely, however, such dramatic gutting of a general liability policy would have been explicitly identified by some participant on this much-publicized controversy.

42 .The court went on to provide illustrations of the breadth of the statute and stressed the importance of the policies that it was enacted to vindicate.

43 . We need not and do not decide in this case whether the court’s approach in Doerr makes the inquiry more complicated than it needs to be.

44 . As Judge Glickman has recognized in a different context, post at 352, ”[t]he question before the court is only whether the absolute pollution exclusion is ambiguous in its application to the facts of this case, not whether the exclusion would be ambiguous in its potential application to other facts.”