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Oregon Court: “Sudden & Accidental” Exception to Pollution Exclusion Judged from Policyholder’s Perspective

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

Insurance Coverage & the Cannabis Industry

Properly insuring cannabis businesses, and companies that are involved in the industry but that are not themselves regulated under state cannabis law, can be a tricky undertaking. I recently wrote an article for the Oregon State Bar Cannabis Law Section about things to watch out for when advising clients in this space about insurance. (You … Continue Reading

MNG&D Breakfast Roundtable: Insurance Coverage

Insurance Coverage: Strategies to Protect Your Business Please join us in our Portland office on Wednesday, February 24, 2016 for this no-cost roundtable discussion of practical tips for using insurance to manage risk to your business. The program will help you identify several easy ways to avoid unnecessary risk and exposure to your company. The … Continue Reading

Contempt Proceeding on Appeal Part of Underlying Claim for Purposes of Claims-Made Coverage

A federal judge in the Western District of Washington recently addressed a very uncommon issue in coverage litigation – whether a contempt proceeding is a new “claim” for purposes of a “claims-made” policy – that has resonance for a common issue in risk management: when to report a claim.  In Great American Insurance Company v. Sea … Continue Reading

Another Strong Ruling on Prejudgment Interest From Oregon’s Federal Courts

Oregon’s federal court has struck another blow against the insurance industry’s attempts to limit prejudgment interest in duty-to-defend disputes.  Somewhat ironically, this ruling comes a case that has turned into a carrier v. carrier fight over contribution. In the latest ruling in the long-running Northwest Pipe v. RLI coverage litigation, the court held that a non-defending carrier … Continue Reading

Policyholder Counsel Should Welcome Changes to Proposed Revisions to FRCPs – But Still Push For Rejection

The Advisory Committee on Civil Rules recommends changes to the Federal Rules of Civil Procedure to the federal Judicial Conference.  For several years that body has been debating proposals to curb perceived discovery abuses (particularly in the area of e-discovery sanctions) and to bring down the cost of discovery in civil litigation overall.  On the … Continue Reading

Twenty Questions to Ask Coverage Counsel In Business Litigation

The American Bar Association’s Business Torts committee has posted an excellent article (registration, ABA membership required) on the 20 questions that a business owner should ask coverage counsel about potential coverage issues arising from business litigation.  These are the most critical, and often ignored, issues that must be considered when making decisions about coverage strategy.  Included among … Continue Reading

Oregon Federal Court Rules on Characterization of Environmental Cleanup Costs

Last week Magistrate Judge Stewart issued an order on the thorny issue of how to characterize some of the costs associated with a complex environmental cleanup.  Are they indemnity costs that deplete the insured’s insurance policies, or are they defense costs, which do not?  The decision resolves yet more issues in the Siltronic litigation between Siltronic, a … Continue Reading

Washington Federal Court: Insurer Cannot Litigate Contested Issues In Declaratory Judgment While Underlying Case Pending

With characteristic good humor, Judge Robart of the Western District of Washington recently reiterated a very important principle in the resolution of duty to defend issues: the insurance carrier may not seek a determination on the duty to defend while the underlying case is still going on if in doing so the court would be … Continue Reading

Insured’s Online Research Not Recoverable as Costs, Court Punts on Whether Recoverable as Fees

The Oregon Court of Appeals has once again confirmed that computerized legal research costs (Westlaw, Lexis, etc.) are not recoverable as costs under state law (in this case, the state law permitting recovery of costs on appeal), in a case arising out of a dispute over a homeowner’s insurance policy.  The policyholder apparently argued that under the … Continue Reading

Carrier Must Show Prejudice to Rely on Late Notice

Federal judge Anna Brown recently confirmed that under Oregon law, a carrier must demonstrate that it was prejudiced by allegedly late notice of a claim before the court will inquire into whether the delay in providing notice was reasonable.  This case arose from a collision between a commercial vehicle and a train in Texas allegedly caused … Continue Reading

“Pay and Chase” Jeopardized by Court of Appeals

Policyholders representing general contractors and developers frequently urge defending carriers to “pay and chase” – in other words, settle with the owner (“pay”) and then subrogate against the subcontractors or design professionals whose work caused the alleged damage (“chase”) to get reimbursed for the settlement with the owners.  Many carriers are increasingly leery of this … Continue Reading

Former Insurance Defense Counsel’s Firm Permitted to Represent Insured Against Carrier

The Portland Harbor Superfund Site continues to generate new coverage-related law on issues beyond environmental contamination.  In a recent ruling from Oregon’s federal court, Judge Acosta permitted Stoel Rives to substitute in as coverage counsel for steel company Evraz, Inc. in litigation between Evraz and many of its former carriers over coverage at the Superfund … Continue Reading

Implementation of Environmental Coverage Claims Mediation Program Underway

The recent amendments to Oregon’s Environmental Cleanup Assistance Act (OECAA) included a potentially useful tool in the policyholder toolbox – one that could benefit all sides and the environment as well.  The amendments provided that an insured could demand that an insurer participate in a mediation over a broad range of environmental coverage disputes, and … Continue Reading

Benefits of Involving Counsel In Choosing Your Insurance Program

All companies routinely review their insurance coverage programs, usually through risk management talking to a trusted insurance broker.  Today I came across this excellent “Sound Advice” podcast from Tonya Newman, a colleague at Neal Gerber & Eisenberg in Chicago, about the reasons that companies should involve counsel in discussions at renewal time.  It is of course fairly … Continue Reading

Trial Court Rejects Constitutional Challenge to New Provisions of OECAA

Today the trial court judge in the long-running environmental coverage contribution battle between Lloyd’s and several other carriers for Zidell Marine rejected a constitutional challenge mounted by Lloyd’s to one of the newest provisions of the Oregon Environmental Cleanup Assistance Act (OECAA).  This case has had many zigs and zags but to briefly sum up, … Continue Reading

Presentation on Anderson Brothers Decision

For those of you who missed the OSB Environment and Natural Resources Committee’s CLE on the Anderson Brothers decision yesterday, click here for the presentation visuals (via Prezi) and here for a short article that I wrote for ENR on the decision.  Thanks to everyone who came and for the great questions.… Continue Reading

Oregon Supreme Court Sets Limits on What Constitutes “Proof of Loss” For Attorney Fee Purposes

Today the Oregon Supreme Court held that a policyholder is not entitled to attorney fees under Oregon’s fee-recovery statute for insurance coverage disputes (ORS 742.061) until the insured has given the insurance company information that at least suggests that coverage is requested under the policy  The case is Zimmerman v. Allstate.  The facts, briefly: Zimmerman was … Continue Reading
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