Author: ehemingway

BY: KRISTEN DRAKE

On May 24, 2022, New York Governor, Kathy Hochul, signed the Adult Survivors Act (ASA) into law.  The ASA creates a one-year ‘Lookback Window’ which opened on November 24, 2022, to allow survivors who were adults (18 and older) at the time they were sexually abused and assaulted to sue their abusers – regardless of when the offenses occurred.

In 2019, the state of New York enacted the Child Victims Act (CVA) which opened a ‘Lookback Window’ to commence civil actions.  The CVA was extended another year due to the COVID-19 pandemic, and when the window closed in August of 2021, nearly 11,000 lawsuits had been filed. During the CVA lookback window, countless churches, schools, foster care agencies, and youth-based organizations were obliged to respond to the alleged abuses. An important differentiation between the CVA and the ASA, is the age of the survivor when the sexual abuse or assault occurred, although both fall under the broader category of reviver statutes. Prior to the ASA, reviver statutes focused primarily on abuses against children.  With this new law, it’s likely that different types of organizations will face allegations dating back decades, because the survivors were 18 and older when the sexual assault or abuses happened. This expansion may include accusations made regarding assaults at colleges, in the workplace, and/or health care facility abuses – to name a few.

DECADES-OLD OCCURRENCE-BASED GENERAL LIABILITY POLICIES CAN HELP
When states enact these lookback windows, removing or reducing the statute of limitations for sexual abuse civil suits, organizations that were proximal to alleged abuses can get caught in the crossfire between plaintiffs and alleged offenders. Occurrence-based Commercial General Liability (CGL) policies issued during the policy periods in which the alleged abuse occurred can respond to these new claims – even if the alleged abuse happened in the 1960s.

DEFENDANT ORGANIZATIONS SHOULD CONSIDER INSURANCE ARCHEOLOGY
As more organizations are compelled to identify and locate their decades-old liability policies to help pay damages, they are oftentimes disheartened to learn how difficult it can be. Since the time of interest in reviver statute claims is oftentimes at least 40 years ago, many records could be lost, destroyed by fire or flood, or purposely purged.

Upon receiving notice that a lawsuit has been filed against them under a reviver statute, defendant organizations should contact their attorneys, who typically suggest contact with their current insurance agents and brokers. Because of standard document retention practices, these companies quickly learn their current agent/broker has no information dating back decades. It’s at this point, or perhaps following a fruitless internal archive search, that defendant organizations should consider Insurance Archeology.

Insurance Archeology is the practice of locating and retrieving proof of the existence, terms, conditions, and limits of lost or destroyed insurance policies. PolicyFind’s expertise is finding and bringing to light old insurance coverage for our clients. Under current and future reviver statutes across the country, historical CGL policies issued to businesses, schools, churches, and other organizations, are the first line of assets to be explored to pay for claims against them.

Contact PolicyFind today to learn more about your organization’s historical liability insurance portfolio.

LEARN HOW CASE LAW MAY BE FAVORABLE FOR POLICYHOLDERS FACING ENVIRONMENTAL LIABILITY IN NEW MEXICO

BY: DRU CARLISLE

Case law could be poised to become more favorable for Policyholders in New Mexico who are facing challenges related to Environmental Liability. In nearly every state in the country (with Indiana as an exception), courts have agreed that the Absolute Pollution Exclusion bars coverage for addressing environmental contamination. Typically, this would mean that most general liability policies written after 1985 would not provide a defense to the Policyholder related to environmental cleanup.

In Indiana, a ruling in 2010 determined that the Absolute Pollution Exclusion was considered “ambiguous,” making it possible for many Policyholders to use their insurance policies up until around the mid-2000s.

WHAT COULD THIS MEAN FOR YOU?

Hypothetically, let’s say that you’ve been operating a drycleaning business since 1988 in Santa Fe, New Mexico. You’ve recently discovered, after attempting to sell your property and performing a Phase II, as required by the lender, that there is perchloroethylene contamination within the groundwater. Previously, the General Liability policies that you procured for your business would not provide coverage for remediation because of the Absolute Pollution Exclusion. However, if this ruling were to move forward as expected, you could now have applicable insurance coverage.

Even though this ruling could open a larger opportunity for policyholders to seek coverage from their past insurers on more recent policies, the policies that would be responding to these types of claims could have been issued more than 20 years ago, or earlier. If you don’t know anything about your old occurrence-based general liability policies, contacting an Insurance Archeologist is the best way to find them and bring them to bear.

For over 20 years, PolicyFind has helped business owners and property owners alike, as they navigate expensive environmental contamination cleanup efforts, by finding lost or misplaced General Liability insurance policies that can respond to such claims. PolicyFind will continue to watch this ruling unfold in New Mexico and will provide updates as they arise.

Contact PolicyFind today to learn more about how we can help you find evidence of your organization’s historical coverage.

 

THE U.S. DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO HAS FOUND THE TERM “POLLUTANTS” TO BE AMBIGUOUS IN CERTAIN GENERAL LIABILITY POLICIES ISSUED IN THAT STATE. 

BY: DAVID A. O’NEILL, JD

The U.S. District Court for the District of New Mexico has ruled that this ambiguity renders the absolute pollution exclusions featured in these policies ineffective, reinstating coverage. That is the takeaway from the Court’s recent Memorandum Opinion supporting its summary judgment rulings in the case of Chisolm’s Village Plaza, LLC v. Travelers Commercial Insurance Co., et al., 2022 WL 3369202.

The City of Las Cruces and Dona Ana County had filed complaints against a shopping mall and dry cleaner, among others, seeking cost recovery and contribution under CERCLA for responses to releases and expected releases of hazardous substances at the Griggs & Walnut Superfund Site. The New Mexico Environment Department had detected PCE contamination in four city water wells. The resulting lawsuit was a diversity case in which the U.S. District Court was required to apply New Mexico law. Reviewing New Mexico court decisions, the District Court determined that this was a case of first impression. While New Mexico’s Supreme Court had determined that the qualified pollution exclusion was ambiguous in United Nuclear, 285 P.3d 644 (2012), no ruling had been made by that court regarding the absolute pollution exclusion. Further, while the Tenth Circuit Court of Appeals had ruled on the absolute pollution exclusion, these were rulings based on Colorado, Kansas, Oklahoma, and Utah law, not New Mexico law.

Encountering this lack of precedent relating to the absolute pollution exclusion, the District Court conducted an exhaustive review of various state supreme court decisions to determine how the Supreme Court of New Mexico would rule. In doing so, it grouped the decisions into three “camps”: (1) the literal approach, (2) the situational approach, and (3) the Indiana approach. The literal camp was comprised of opinions that apply the exclusion as “clear and unmistakable.” The situational camp was comprised of opinions that apply the exclusion only in situations of “traditional environmental pollution.” The Indiana camp was comprised of the Supreme Court of Indiana’s ruling in the case styled State Auto v. Flexdar 964 N.E.2d at 850-851.

The District Court predicted that the New Mexico Supreme Court would find enough similarity in Flexdar’s and United Nuclear’s approach to ambiguity to construe the absolute and qualified pollution exclusions in the same manner as Indiana has construed them. Like Indiana, the District Court expects that New Mexico will “require that the insurer specify what falls within its pollution exclusion.” It will find Flexdar persuasive because “its approach is the least tolerant of contractual ambiguity and provides the most protections for the insured.”

To learn more about what this could mean for those facing environmental liability in New Mexico, read U.S. District Court Finds Absolute Pollution Exclusion Ambiguous; What This Could Mean for Drycleaners/Industrial Sites in New Mexico.

An ineffective absolute pollution exclusion in New Mexico may be expected to create exposure for insurers under standard general liability policies issued to commercial businesses from 1985 through the present.

Contact PolicyFind today to learn more about how we can help you find evidence of your organization’s historical coverage.