Virginia Supreme Court to Decide First Global Warming DJ
AES has asked the Virginia Supreme Court to overturn a lower court’s ruling that the Village of Kivalina global warning claims do not arise out of fortuitous “occurrence.” Judge Kendrick ruled from the bench in Steadfast Ins. Co. v. AES Corp., No. 2008-058 (Va. Cir. Ct. February 5, 2010) that the allegations of climate change were the foreseeable result of the insured’s routine discharge of millions of tons of carbon dioxide over the years. Despite having earlier found that disputed questions of fact precluded the entry of summary judgment for Steadfast, Judge Kendrick ruled with respect to a subsequent motion for summary judgment by AES that Steadfast had no duty to defend. The court did not reach Steadfast’s alternative argument concerning the pollution exclusion, although Judge Kendrick reportedly intimated during oral argument that he would not have considered carbon dioxide to be a pollutant (take that, U.S. Supreme Court!). The case was otherwise scheduled to go to trial on April 26, 2010.
