National Insurance Law Forum

National Insurance Law Forum

Published By The Attorneys of the National Insurance Law Forum

Tag Archives: environmental

The Question of Allocation in Contribution Claims Between Insurers

Posted in Liability Coverage, Recent Cases
Often a number of insurers are involved in claims that concern damage that takes place over several years such as environmental damage claims.  Oregon law allows claims for contribution by non-settling insurers against settling insurers under certain circumstances, Certain Underwriters v. Mass. Bonding and Ins. Co., 235 Or. App. 99, 230 P.3d 103 (2010), and… Continue Reading

Exhausting Policy Limits

Posted in Duty to Indemnify, Excess and Umbrella Insurance, Liability Coverage, Recent Cases
As insurance is depleted for ongoing claims like asbestos bodily injury and long-term environmental pollution, how an insured is to use its layers of insurance is an issue.  The California Supreme Court has been asked to weigh in on the question of whether “horizontal exhaustion” or “vertical exhaustion” principles should apply to excess and umbrella… Continue Reading


Posted in Recent Cases
In Gull Industries, Inc. v. State Farm Fire and Casualty Company, et al., Court of Appeals of the State of Washington, Division I, No. 69569-0-I (June 2, 2014), a Washington Appellate Court, for the first time, addressed the question of "what constitutes a 'suit' for the purpose of triggering the insurer's duty to defend environmental liability claims against the insured." Id. at 10. In Gull, Gull undertook voluntary remediation of a gasoline service station site. Gull notified the Washington Department of Ecology ("DOE") regarding a release of petroleum at the site, and DOE sent a letter to Gull acknowledging the notice. The letter from DOE acknowledged that "Gull's report reveals the soil and groundwater are above the MTCA 'Method A Cleanup levels' and that DOE placed the property on the leaking underground storage tank list with an 'Awaiting Cleanup' status. The letter also advised Gull to be 'aware that there are requirements in state law which must be adhered to' but did not advise of any consequences that might attach to the failure to adhere to those requirements." Id. at 14. Gull then continued with its voluntary investigation and remediation of the site. No Potentially Liable Party (PLP) letter was issued.… Continue Reading

California Supreme Court Allows Stacking of Limits and Affirms “All Sums” Allocation

Posted in Liability Coverage
  On August 9, 2012, the California Supreme Court issued its long-awaited ruling in State of California v. Continental Insurance Company, et al., Case No. S170560  [PDF] [DOC]. In a unanimous decision, it affirmed the decision of the Court of Appeal, ruling that the State of California was allowed to recover up to the total… Continue Reading

The Oregon Supreme Court Examines The Application Of An Statutory Amendment Excepting “Surplus Lines Insurance Policies” To Oregon’s Statute Allowing A Plaintiff Bringing An Action On An Insurance Policy To Recover Attorney Fees

Posted in Recent Cases
In ZRZ Realty Co., et al. v. Beneficial Fire and Casualty Insurance Company, et al. (OR SC S057155), the Oregon Supreme Court allowed the plaintiffs to recover part of their attorney fees incurred to establish insurance coverage in a dispute regarding environmental contamination resulting from the plaintiffs’ activities dismantling U.S. Navy and merchant marine vessels… Continue Reading

California Supreme Court distinguishes impact of Foster-Gardner “suit” ruling

Posted in Liability Coverage
In 1998, the California Supreme Court, consistent with contract interpretation rules, took a literal approach to what is meant by “suit” in liability insurance policies, ruling that when not otherwise defined, “suit” means a proceeding brought in a court of law by the filing of a complaint. Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998)… Continue Reading

Stringfellow -The Next Chapter – Significant Changes to California Pollution Coverage Law

Posted in Liability Coverage
Of great significance to environmental coverage involving landfills and “indivisible” damages from covered and non-covered releases of pollution, the California Supreme Court issued rulings in the latest chapter of the Stringfellow case. The court found for the State of California on several significant points, and remanded the case for trial on factual issues, since these ruling… Continue Reading

Limitation to Specified Tanks Upheld

Posted in Recent Cases
In Cain Petroleum Inc. v. Zurich American Insurance Company, Court of Appeals of Oregon, A134133 (December 3, 2008), the Oregon Court of Appeals upheld a distinction in a “Storage Tank System Third Party Liability and Cleanup Policy” between scheduled and unscheduled underground storage tanks (“USTs”). The policy provided coverage for environmental cleanup costs and third… Continue Reading

Stringfellow – A Continuing Coverage Saga

Posted in Liability Coverage
While it is often difficult these days to pay attention to any thing other than the upcoming elections and the roller-coaster economy, judges keep making decisions and lawyers keep lawyering. On November 6, 2008, after the election results are in, the California appellate court, 4th district (appeal from Riverside County), will hear oral argument on… Continue Reading

Vermont Supreme Supreme Weighs In on Allocation And Other Pollution Coverage Issues

Posted in Liability Coverage
Even as briefing has begun before the Massachusetts Supreme Judicial Court with respect to the issue of allocation, Vermont has joined the growing number of Northeastern states adopting a “time on the risk” approach in long-tail cases. In its first comprehensive assay into the murky world of environmental jurisprudence, the Vermont Supreme Court has ruled… Continue Reading

Oregon Court of Appeals Hears Oral Argument on Burden of Proof for “Expected or Intended” Coverage Term

Posted in Uncategorized
The Oregon Court of Appeals heard oral argument in ZRZ Realty Co. et al v. Beneficial Fire and Casualty Insurance, CA No. A121145, on January 10, 2008 concerning several issues including whether it is the insurer or the insured that has the burden of proving whether damage is unintended or unexpected under a policy of… Continue Reading

Ninth Circuit Finds Insured’s Claim for Diminution in the Sale Value of Contaminated Properties Not Covered under CGL Policy

Posted in Liability Coverage
The Ninth Circuit has ruled that an insured’s claim for the difference between the appraised value of uncontaminated properties and the sale price of the properties in an contaminated state is not recoverable under a commercial general liability policy on the basis that the claim did not constitute “property damage” or “damages” that the “insured shall… Continue Reading

New Hampshire Supreme Court Adopts Pro Rata Allocation For Long Tail Claims

Posted in Liability Coverage
Score it Insurers 8-Policyholders 6 as casualty insurers won a round today in the on-going battle over whether insureds must allocate long-tail losses in accordance with the duration of the loss or can "spike" their claims to a single year of coverage to trigger higher layer policies and avoid those nasty orphan shares and gaps in coverage.… Continue Reading