One of the most critical issues in litigation over coverage for long-tail environmental liabilities is the application of the “qualified pollution exclusion” and in particular the carve-out for pollution that is “sudden and accidental.” A new decision from an Oregon federal court tackled this question: Is “sudden and accidental” to be evaluated from the perspective … Continue Reading
The dispute in Security National Insurance Company v. Sunset Presbyterian Church, __ Or. App.__ arose out of construction claims involving a church, its general contractor, a subcontractor, and the subcontractor’s liability insurer. In an underlying lawsuit, the church brought claims against the general contractor (Andersen), who brought third-party claims against its subcontractors, including its masonry … Continue Reading
We are honored to represent United Policyholders (a non-profit advocacy organization for policyholders) on an issue of great concern to many of our commercial clients, and in particular those in the construction industry: the scope of the so-called “absolute pollution exclusion.” Our amicus brief to the Ninth Circuit for UP on the issue was filed on … Continue Reading
On May 10, 2017, the Oregon Court of Appeals made several significant holdings in the appeal of an insurance policy garnishment proceeding. The court of appeals held that a liability insurer’s exclusion for multi-unit new residential construction was ambiguous and, when construed against the insurer, did not apply to defeat coverage for construction-defect claims in … Continue Reading
Contractors, builders, real estate managers, and others should be aware of a March 9, 2017, decision by an Oregon federal judge who found that carbon monoxide is included in the plain meaning of “pollutant” as defined in a liability insurance policy. As a result, an insured contractor had no coverage for its faulty work. In … Continue Reading
In a decision issued yesterday, February 2, 2017, the Oregon Supreme Court reversed several lower-court decisions and held that a policyholder that is forced into litigation with its insurer can recover attorney fees if the insurer settles the case for more than the insurer offered before litigation began, clearing a significant roadblock to resolution of coverage … Continue Reading
Last year our partner Seth Row reported on an Oregon Court of Appeals decision, West Hills Development Co. v. Chartis Claims, Inc., 273 Or App 155 (2015). In West Hills, Oregon Auto Insured, a subcontractor, and the liability policy named the general contractor as an additional insured. In an underlying lawsuit by homeowners alleging construction defects, the … Continue Reading
Virtually every insurance contract imposes on the policyholder a “duty to cooperate” with the carrier during the fact-gathering and investigation process. Typically, this requires the policyholder to assist its carrier in the investigation, defense, and settlement of a claim or suit, both in the coverage context and in a third-party liability case. The failure to cooperate can … Continue Reading
Most business owners understand that in exchange for paying premiums for workers compensation insurance, they get immunity from suit from their own injured employees. This is usually referred to as the workers compensation “exclusive remedy”: if an employee accepts workers compensation insurance benefits, the employee may not sue the employer (subject to certain exceptions for … Continue Reading
Earlier this year the Oregon Supreme Court expanded the potential liability of contractors and others for injury to employees of others on a job site, making it more critical than ever for contractors to ensure that they have additional insured protection. In Yeatts v. Polygon Northwest, an employee of a framing subcontractor on a building project … Continue Reading
Last Thursday, the Oregon Supreme Court issued its opinion in Goodwin v. Kingsmen Plastering, Inc., 359 Or 694 (2016), holding that the deadline to file a negligent construction-defect claim is two years from the time a plaintiff knew or should have known of damage resulting from the defect—not six years, as applied by the lower … Continue Reading
Oregon and Washington are often viewed as sister states, similar in their climates, policies and attitudes. Yet, while the two states share a border and a uniquely Pacific Northwest culture, their approaches to insurance law differ greatly. In particular, the legal protections to prevent insurers from wrongfully refusing to defend a policyholder against a covered … Continue Reading
I was privileged enough to be invited to write the following guest blog post on May 2, 2016 for the blog of United Policyholders, an advocacy organization for commercial and personal-lines policyholders. Our firm has had the privilege of writing several amicus briefs for UP over the years, including one discussed below. UP is a … Continue Reading
A new decision in the long running Siltronic insurance coverage litigation at the Portland Harbor Superfund Site gives new guidance on determining whether a cost should be categorized as a “defense cost” or an “indemnity payment.” The decision also fleshed out some parameters for the independent counsel provision of Oregon’s environmental insurance claims law (“OECAA”). Classification … Continue Reading
This week, Oregon’s governor signed into law SB 1591A, which permits the Insurance Commissioner (part of the Department of Consumer and Business Services, or DCBS) to release complaints made to DCBS about insurance company claims handling practices, upon request. This is a long-overdue fix to a bizarre anomaly in Oregon law: previously, the law (ORS … Continue Reading
My colleagues Stacey Martinson and Christi Taylor posted an excellent summary on our From the Ground Up blog of a new Oregon Supreme Court decision—Shell v. Schollander Companies, Inc., 350 Or 552 (2016)—on when Oregon’s ten-year statute of ultimate repose begins to run in a case involving a construction contract, but also negligence claims for defective construction. … Continue Reading
Environmental cleanups typically involve industrial sites that have operated for decades. Because of this, well-positioned policyholders will have defense coverage under numerous policies and from a range of different insurers. When this occurs, defense costs have to be allocated between insurers to avoid double recovery.… Continue Reading
Good news for policyholders today from the Oregon Supreme Court: the court overruled the 42-year-old Stubblefield decision, making it much easier for defendants in litigation to protect themselves if their insurance company fails to reach a reasonable settlement with the plaintiff. Today’s decision in Brownstone Homes Condo Ass’n v. Brownstone Forest Heights LLC means that … Continue Reading
One of the most common pollution exclusions in older general liability policies is the standard-form 1973 “qualified” pollution exclusion (often called the “1973 Exclusion”).[1] The 1973 Exclusion excludes pollution coverage unless the “occurrence” that caused the damage was “sudden and accidental.” In Oregon, this exclusion will not apply if the pollution results from “discharges, dispersals, … Continue Reading
A new decision from the Oregon Supreme Court on indemnity agreements may impact one of the most headache-inducing negotiating points in indemnity contracts: “additional insured” coverage under umbrella policies. Common assumptions about what to require as “additional insurance” may need to be re-examined as a result. General contractors usually demand that subcontractors procure primary-layer liability … Continue Reading
In order to avoid providing a defense to an insured, insurance companies often argue that the complaint or demand does not clearly allege covered damage. I call this the “trained monkey” defense – essentially, the insurance company’s position is that it is only required to do what a trained monkey might do, which is read … Continue Reading
Two new decisions from federal courts in Oregon demonstrate just how broad an insurance company’s contractual duty to defend its insured truly is. These decisions should be helpful to policyholders in fighting back against denials of coverage. Wrongful denials of defense are unfortunately common in Oregon, due to the absence of a meaningful bad faith … Continue Reading
In a June 25, 2015, to-be-published decision in Kaady v. Mid-Continent Casualty Co. the Ninth Circuit adopted a decidedly pro-policyholder interpretation of the oft-contested “known loss” provision that is standard in commercial general liability (CGL) policies, holding that an insured’s knowledge of damage to one part of a structure does not allow an insurer to deny coverage for … Continue Reading
In the most recent opinion in the ongoing Marine Group litigation, Judge Acosta clarified two issues that recur in complex environmental insurance litigation: first, which party has the burden of proving that incurred defense costs were reasonable and necessary; and second, whether an insured can recover pre-tender defense costs.… Continue Reading
