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Showing 9 posts in Insurance Coverage.

Insurance Policyholders Score Victory on Critical Allocation Issue in Second Circuit Olin Decision

In an action seeking insurance coverage for environmental contamination, the United States Court of Appeals for the Second Circuit held that “all sums” allocation would apply to the policies at issue, and therefore the policyholder could choose which of the multiple triggered policy periods it preferred to cover the entire loss, up to the limits of the policies in that year.  Olin Corp. v. OneBeacon Am. Ins. Co., No. 15-2047(L) (2d Cir. July 18, 2017). Read More ›

Lost Insurance Policy? Pursuing Coverage for Long-Tail Environmental Liability Still Feasible

Companies facing environmental cleanup liability typically confront claims that are brought multiple decades after the alleged polluting activity took place. This passage of time often results in the loss or disappearance of crucial historic documents, including insurance policies, necessary to respond to the claims.  Historic general liability insurance policies issued before pollution exclusions became commonplace in the 1970s are of particular value in protecting a company from exposure to “long-tail” environmental liability.  Finding these policies, or evidence of their existence, therefore is a must.  A recent New Jersey federal court decision serves as a helpful reminder that when the actual policies cannot be located, even limited documentary evidence of their existence, when buttressed by the expert testimony of a credentialed insurance archaeologist, may be sufficient to prove the coverage and facilitate recovery. Read More ›

Second Circuit Offers Policyholders Painful Reminder on Giving Notice of Claims: Don’t Wait, Use Correct Addresses, and Be Specific

In January 2017, the Second Circuit ruled that policyholders must actually or presumptively give their insurers notice of specific policies under which they seek coverage—mailing a notice of the claim may not be enough. Travelers Indemnity Co. v. Northrop Grumman Corp., No. 15-3117-CV, 2017 WL 391926 (2d Cir. Jan. 27, 2017). Read More ›

Texas Supreme Court Rules that CERCLA PRP Letters and Enforcement Proceedings Are “Suits” Subject to the Duty to Defend Under Standard CGL Insurance Policies

On June 26, 2015, the Texas Supreme Court held that enforcement proceedings under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”)—including the issuance of a “PRP letter” notifying the recipient that it is a potentially responsible party—constitute a “suit” subject to the duty to defend under standard commercial general liability insurance policies, joining the substantial majority of courts that have considered the issue. McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., No. 14-0465 (Tex. June 26, 2015). Read More ›

Texas Supreme Court Rules Additional-Insured Coverage Is Limited by Underlying Indemnification Agreement in In re Deepwater Horizon

In a much anticipated 8-1 decision, the Texas Supreme Court ruled Friday that BP is not entitled to additional-insured coverage in In re Deepwater Horizon, No. 13-0670 (Feb. 13, 2015). Read More ›

Wisconsin Supreme Court Applies Pollution Exclusion to Well Contaminated with Manure

Recently, the Wisconsin Supreme Court held that the pollution exclusion applies to well water contamination arising from the application of manure to nearby farmland, relieving a general liability insurer of its duty to defend or indemnify an insured absent other policy provisions. Read More ›

Infrastructure, Insurance, and Climate Change – Oh My!

When it comes to insurance coverage for key infrastructure assets, several fundamental questions emerge:

  • Can our current infrastructure withstand sea level rise and other severe weather consequences?
  • If the answer to that question is “no,” (which depends on the asset at issue and geography), does awareness of climate change impacts impose a duty on anyone to protect infrastructure from potential damage?
  • If a duty exists to anticipate severe weather impacts, should insurance companies ultimately be on the hook if asset owners fail to take steps to make infrastructure more resilient?

As with most legal questions, where you stand depends on where you sit. Read More ›

Fifth Circuit Seeks Texas Supreme Court Input in Deepwater Horizon Insurance Coverage Dispute

On August 29, 2013, the United States Court of Appeals for the Fifth Circuit withdrew its opinion from earlier this year that had awarded “additional insured” coverage to BP American Production Company and affiliates (“BP”) under Transocean Holding, Inc.’s (“Transocean”) umbrella insurance policies. In re Deepwater Horizon, Case No. 12-30230, Slip Op. (5th Cir. Aug. 29, 2013) ( “Slip Op.”). In its place, the Fifth Circuit certified two questions to the Supreme Court of Texas: (1) whether BP is covered as an additional insured, based solely on the language of the insurance policies; and (2) whether the contra proferentem doctrine of requiring insurance policies to be interpreted against insurers and in favor of insureds applies to sophisticated parties. Id. at 14. The Supreme Court of Texas accepted the certified questions for review on September 6, 2013. See http://www.supreme.courts.state.tx.us/historical/2013/sep/090613.htm. Read More ›

Pollution Clause Excludes Coverage for Damages Sought in Groundwater Contamination Case

In a decision that clarifies the broad scope pollution exclusions in certain insurance policies, the Seventh Circuit Court of Appeals affirmed a district court’s grant of summary judgment in favor of the insurance companies excluding coverage to their insured. Scottsdale Indemnity Co. v. Village of Crestwood, Nos. 11-2385, 11-2556, 11-2583 (7th Cir. Mar. 12, 2012), available at www.bdlaw.com/assets/attachments/Crestwood.pdfThe Seventh Circuit concluded that pollution exclusions contained in the Village of Crestwood’s insurance policies protected the insurers from having to defend or indemnify the Village in connection with an underlying lawsuit for allegedly distributing contaminated well water to Village residents. Read More ›