Tag Archives: environmental coverage

Allocation-Process Information Shielded by Mediation Privilege, not Available to Insurer: Wash. Fed. Court

In a decision with important implications for “long-tail” environmental contamination coverage claims in the Northwest, a federal court in Washington state has held that information from a confidential “allocation” proceeding in a Superfund site does not need to be produced to an insurer for one of the parties. The decision provides comfort to those hoping … Continue Reading

If You Purchase Contaminated Property, Is It Covered?

Can a policyholder that knowingly purchases contaminated property be covered for the costs of cleaning up that property under policies of insurance issued before the purchase? Yes, according to a new unpublished decision from the Washington Court of Appeals. In 1999, the Port of Longview purchased property that had been used from the 1950s through … Continue Reading

Court Protects Self-Insured Policyholders Facing Historic Environmental Liability

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

Allianz Trial on Pollution Exclusion Issues Highlights Importance of Jury Instructions

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

Absolute Pollution Exclusions Are Not Absolute

Insurance is a crucial source of funding for most environmental cleanups. For the past 30 years, comprehensive general liability insurance policies have uniformly included an “absolute pollution exclusion” in some form or another. The earliest such exclusions appeared in the 1950’s, but they became ubiquitous boilerplate in the mid-1980s. As a result, most applicable environmental … Continue Reading

Oregon Trial Court Adopts “All-Sums” In Environmental Coverage Case

A great win last month for the Zidell real-estate group (owner of much land in the South Waterfront area of Portland, including a historic ship-repair yard) in the longest-running environmental contamination case in Oregon history: a Multnomah County judge held that Zidell’s carriers must pay for environmental remediation based on the “all sums” approach.  (Click here for … Continue Reading

Oregon Environmental Coverage Mediation Program Launched

In 2013 the Oregon Legislature passed SB 814, which amends the Oregon Environmental Cleanup Assistance Act, a unique law regulating environmental coverage disputes.  Part of SB 814 required the State to set up a mediation program for such claims (and made a carrier’s refusal to participate in mediation a prohibited claims practice).  That mediation program … Continue Reading

Or. Fed Court Rejects “Hail Mary” Insurer Argument Against Attorney Fees

The dispute between Schnitzer Steel and its carriers over defense at the Portland Harbor Superfund Site has been addressed many times in this blog, because it has raised many novel and fascinating (to me, anyway!) issues.  Here is the latest: on November 12, 2014 Judge Mosman ruled on Schnitzer’s motion for attorney fees after Schnitzer … Continue Reading

Insurers Trying to Have It Both Ways on ‘First Party’ v ‘Third Party’

Insurance carrier-side lawyers are celebrating the result in Cox v. Continental Casualty Company, a decision out of the Western District of Washington  in which Judge Pechman held that Washington’s Insurance Fair Conduct Act (IFCA) does not apply to claims under liability policies because the policyholder there is not a “first-party claimant,” and IFCA specifically refers to … Continue Reading

Wash. Court of Appeals Gets It Dead Wrong on What Is a “Suit”

Earlier this week Division One of the Washington Court of Appeals issued its much-anticipated decision in the Gull Industries v. State Farm litigation.  The issue was whether a letter from the state equivalent of the EPA constitutes a “suit” under a standard-form legacy GL policy (that is, a policy issued before the ISO form defined “suit”). … Continue Reading

Oregon Federal Court Confirms Availability of Prejudgment Interest on Disputed Defense Costs

In an as-yet-unpublished decision in the long-running Ash Grove v. Liberty Mutual case the court recently granted the policyholder’s request for prejudgment interest on defense costs recovered at trial.  Ash Grove (Case No. 09-239-HZ) involves reimbursement of legal fees and costs incurred in defense of claims associated with the Portland Harbor Superfund Site.  After pretrial rulings … 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

Oregon Bill That Would Assist Insurers In “Lost-Policy” Battles Dies

Those of us in the coverage game who deal with “long-tail” claims — that is, claims under older occurrence-based policies — routinely have to deal with a common problem: the policies are gone.  Businesses destroy old records, change hands, have a flood, etc., and the old insurance policies are gone.  Professional records managers are now … 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

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

Oregon Federal Court: Participation in Superfund Site ADR Part of Defense Obligation

Judge Marco Hernandez recently issued his rulings after a bench trial in the long-running Ash Grove Cement Co v. Liberty Mutual et al. environmental coverage litigation.  In 2008 Ash Grove became embroiled in the Portland Harbor Superfund Site when it received a “104(e)” information demand from the EPA.  When Ash Grove’s insurers (including Liberty and … Continue Reading

Insurer Gets Creative Seeking to Defeat SB 814 Independent Counsel Provision

Insurer CNA has filed its brief in the long running Schnitzer coverage litigation concerning defense coverage at the Portland Harbor Superfund Site and it’s interesting reading.  The issue here is not the duty to defend per se, because Schnitzer’s insurers are defending. The issue rather is whether the “independent counsel” provision of SB 814, the amendment to … Continue Reading