Today the Ninth Circuit affirmed the trial court’s decision in Anderson Brothers v. St. Paul Fire & Marine in favor of the policyholder in the first case to reach the Ninth Circuit on the issue of whether an EPA “104(e)” information demand triggers an insurance carrier’s duty to defend. I am very proud to represent Anderson Brothers, a family-owned and operated business with deep roots in Portland, in this litigation. The decision, written by Judge Rheinhardt, confirms what not only the trial judge (Judge Mosman) had held, but what two other judges in Oregon have held, which is that a 104(e) letter from the EPA (in this case, issued as part of the Portland Harbor Superfund Site process) is one potential starting point for CERCLA’s adversarial process involving (potentially) strict liability. As such, a 104(e) letter qualifies as a “suit” not only under Oregon common law but under the Oregon Environmental Cleanup Assistance Act (OECAA), Oregon’s unique statute governing some environmental insurance claims. This is a significant victory for a small business caught up in some very dramatic machinations here in Portland as insurance companies try to control their overall exposure to the costs of defending hundreds of businesses and government entities in the line of fire at the Harbor Site, and is proof positive that the Oregon legislature did right by small business when it passed the OECAA in 1999.
*Disclaimer: Success in this (or any other) case does not guarantee success in any other case.