Tag Archives: OECAA

I’m Exhausted! Oregon Court Provides Insights on OECAA Exhaustion, Independent Counsel Provisions

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

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

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

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 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

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

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 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

Insurers Start Duking It Out Over Impact of SB 814 on Oregon Environmental Coverage Law

Ironically enough, the first attempt that I’ve heard of to take advantage of the new pro-policyholder provisions of the Oregon Environmental Cleanup Assistance Act (OECAA) was by an insurance company.  That effort, in the form of a motion to dismiss recently filed in the Multnomah County Circuit Court Lloyd’s of London v. Beneficial Insurance case, is … Continue Reading