Category: Blog

Written by David O’Neill, JD, Director of Investigations, PolicyFind

Valley Forge Insurance Company sued scrap yard operator, Hartford Iron & Metal in the U.S. District Court for the Northern District of Indiana, seeking a declaration that it had both the right to control the defense and remediation of the Hartford environmental contamination site.  A settlement agreement entered into by the parties, a U.S. District Court ruled, did not override Indiana case law that defines a “conflict of interest” in the environmental coverage context.

Continue reading “U.S. District Court Denies Insurer Right to Control Defense and Remediation: Insurer Hired Defense Counsel Cannot Serve Two Masters in Indiana”

Written by David O’Neill, JD, Director of Investigations, PolicyFind

Yours is a middle-sized manufacturing company headquartered in the Midwest. Last year, the bank handling your company’s refinancing required that you conduct a Phase One environmental assessment. The Phase One report showed that past use of degreasers had contaminated the soil and possibly the groundwater beneath your plant. As required by law, you reported the findings to your state’s environmental authority. The state then sent a letter requiring that your company take action to determine the extent to which groundwater or adjoining land may have been polluted. Your attorney explained that your company’s general liability insurance policies from years past could provide coverage for the cost of responding to the state’s directives. So he asked you to provide him with copies of any and all general liability insurance policies in your company’s possession.

Continue reading “How to Find Your Company’s Old Insurance to Defend Against Environmental Property Damage Claims”

Written by David O’Neill, JD, Director of Investigations, PolicyFind

As an insurance archeologist, the location and retrieval of historical insurance policies has long been my business. Policyholders with long-tail claims often rely on liability insurance policies issued decades ago to provide coverage. These policies provide the evidence of insurance necessary to tender environmental property damage claims, toxic tort claims, as well as sexual battery claims to insurance carriers.  Where an actual insurance policy cannot be found, an endorsement, a premium notice, or broker correspondence may serve as the document to be authenticated and form the basis of the policyholder’s claim for coverage. These documents dating to the mid and late 20th century are typically found boxed in off-site storage facilities, in insurance broker archives, in government-retained microfilm collections, etc.

Policyholder’s counsel proffering decades-old documentary evidence in declaratory judgment actions to prove the existence, terms and conditions of liability insurance coverage have long done so with confidence, knowing that these types of documents were “self-authenticating.”  Federal Rule of Evidence 901(b)(8) allows that such an “Ancient Document” can be relied upon as authentic if (a) it is “in a condition that creates no suspicion about its authenticity”; (b) was found “in a place where, if authentic, it would likely be” and (c) “is at least 20 years old when offered.”  Federal Rule 803(16) provides a hearsay exception for these Ancient Documents. Therefore, news this summer that the United States Judicial Conference’s Committee on Rules of Practice and Procedure had issued a report proposing changes to the Federal Rules of Evidence that would repeal the hearsay exception for Ancient Documents is being met with some concern by policyholder’s counsel.

Continue reading “Proposed Amendments to the Federal Rules of Evidence May Complicate Policyholder’s Burden in Proving CGL Coverage”

Written by David O’Neill, JD, Director of Investigations, PolicyFind

The Indiana Court of Appeals opinion in General Housewares Corp. v. National Sur. Corp. 741 N.E.2d 408, 413 (Ind. Ct. App. 2000) established the adoption of the common law known loss doctrine under Indiana insurance law. In that opinion, the Court stated that:

“Simply put, “the known loss doctrine” states that one may not obtain insurance for a loss that has already taken place.”

In General Housewares Corp., the Court of Appeals declared that the doctrine applied where an insured had “actual knowledge that a loss has occurred, is occurring, or is substantially certain to occur on or before the effective date of the policy.” Since that decision, the Court has taken cases on appeal that require it to further define what the term “loss” actually means in the context of what needs to be known to preclude insurance coverage under this doctrine. Its rulings in two of these cases appear at odds and call for some clarification regarding the application of the doctrine to environmental claims in Indiana. Continue reading “Two Recent Indiana Court of Appeals “Known Loss” Decisions Focus on Policyholder Awareness of Property Damage Liability”

Written by David O’Neill, JD, Director of Investigations, PolicyFind

EnviroForensics and PolicyFind typically work on behalf of businesses required to respond to demands made by governmental entities, or property owners claiming damage to the environment occasioned by their business practices. We assist these businesses by locating historical insurance policies purchased by the companies identified or named as responsible parties.

This June, a Louisiana law firm representing mesothelioma victim employees of a bankrupt company sought PolicyFind’s help in locating their employer’s historical insurance coverage. If the insurers and their policies could be identified, the employees wished to make bodily injury claims against their former employer’s insurers under Louisiana’s direct action statute. To do so they needed to find the policies and prove the terms, conditions and exclusions of these policies Continue reading “Mesothelioma Victims Resurrect Bankrupt Employer’s Policies Can File as Direct Claimants Against Insurers”