Hawaii and Alaska are located 3,000 miles from each other and have, well, different climates.  Yet, owing to their status as the last two additions to the star-spangled banner – and in the same year – it is not unusual for them to be discussed together.

The Hawaii-Alaska tandem recently hit the world of insurance coverage – and in a remarkedly coincidental way: courts in both states, know for pristine environments, 24 hours apart certifying a pollution exclusion issue to their respective top courts.   

On September 5, 2023, a Hawaii District Court certified the following questions to the Hawaii Supreme Court:

1) For an insurance policy defining a covered “occurrence” in part as an “accident,” can an “accident” include recklessness?
If that answer “yes,” the court certified this follow-up question:
2) For an “occurrence” insurance policy excluding coverage of “pollution” damages, are greenhouse gases “pollutants,” i.e., “gaseous” “irritant[s] or contaminant[s], including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste’”?

Then, on September 6 – the next day! -- the Ninth Circuit, in Estate of Wheeler v. Garrison Prop. & Cas. Ins. Co.,certified the following question to the Alaska Supreme Court: “Does a total pollution exclusion in a homeowners' insurance policy exclude coverage of claims arising from carbon monoxide exposure?”  The next day!

It’s just coconuts that that could happen!