Category: Blog

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

 

An opinion qualifying Maryland’s approach to applying what is known as the horizontal allocation rule in long-tail liability insurance claims cases was issued by U.S. District Court Judge Catherine C. Blake on January 2, 2014.  The U.S. District Court for the District of Maryland ruled in Porter Hayden et al. v. National Union Fire Insurance Co. et al. (as yet unreported) that bankrupt insulation producer Porter Hayden Co. may tap certain excess insurance policy limits for indemnity in asbestos injury suits without first exhausting all primary policy limits.

Excess insurers National Union Fire Insurance Co. of Pittsburgh Pa. and American Home Assurance had supported an interpretation of the rule that would require all available primary insurance policies to be exhausted before any excess carrier could be required to pay for the loss.  These insurers had each issued three excess insurance policies above their own primary policies in the 1970’s. They argued that Porter Hayden could not reach for limits from its upper tier policies until underlying policy limits from all insurers had been exhausted. Continue reading “Court Finds Exception to Maryland’s Horizontal Allocation Rule In Porter Hayden v. National Union Fire Insurance Co. Decision”

By David A. O’Neill, JD, Director of Investigations, PolicyFind

A new law passed by the Oregon Legislature and signed into law by Governor Kitzhaber sets out a new statutory scheme relating to various insurance issues regarding environmental claims. Senate Bill 814, as enacted amends ORS 465.479 and ORS 465.480 to create new provisions regarding several important issues pertaining to the identification of lost general liability insurance policies, the rights of policyholders and insurers under these policies and the tendering of environmental damage claims. SB 814 applies not only to new environmental claims, but to existing and even past claims, as long as no final judgment was entered on the claim before June 10, 2013

Treble Damages

Senate Bill 814 gives policyholders the right to sue insurers for bad faith and collect triple the actual damages when insurers fail to quickly investigate or pay claims, wrongfully deny a claim or delay payments to policyholder attorneys or consultants.

Choice of Laws

The new Oregon statute clearly states that if the site of environmental damage is in Oregon state, Oregon insurance law pertains. Continue reading “OREGON ENVIRONMENTAL INSURANCE LAW CREATES BAD FAITH CLAIM; LIMITS OWNED PROPERTY EXCLUSION, MAKES POLICY RIGHTS ASSIGNABLE”

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

Unlike the Supreme Court of Indiana, which took a clear position on the ambiguity of the absolute pollution exclusion in its 2012 State Automobile Mutual Insurance Company v. Flexdar, Inc. decision, the Missouri Supreme Court has yet to make a ruling on the meaning of the exclusion.  However, the Federal Courts have been unusually active in predicting how the Missouri high court might apply or not apply the exclusion in varying scenarios.

Most recently, the Eighth Circuit U.S. Court of Appeals filed a June 13, 2013 opinion in the case styled  Doe Run Resources Corporation v. Lexington Insurance Company in which it reviewed a District Court’s denial of insurance defense to a lead mine and mill operator  under a general liability insurance policy.  The lead producer cited to the 1999 Missouri Court of Appeals opinion in Hocker Oil Co. v. Barker-Phillips-Jackson.  There, Missouri court had decided that the pollution exclusion was ambiguous as it applied to gasoline as a product in the operation of a gasoline station.  In both cases, the CGL policies did not define “pollutant.”  The Hocker court was unwilling to enforce a policy that provided no coverage for a large segment of the insured’s business operations.   Making the analogy to lead concentrate and tailings as being products in a lead mining and milling scenario, the Doe Run court then set out to distinguish product from pollutant based on the way the substance is stored. The Eighth Circuit’s decision not to follow Hocker may leave that case’s precedential value in question. Continue reading “Fed Courts Differ on Absolute Pollution Exclusion in Missouri; Which Definition of “Pollutants” To Follow Remains Unclear”

Written by David A. O’Neill, J.D., Director of Investigations, PolicyFind

A recent development in asbestos litigation has been suits brought by workers in the Texas oil fields against their employers for long term exposure to asbestos during the process of lining pipes and boilers and otherwise applying asbestos containing products during oil drilling operations.

The Texas Workers’ Compensation Act (TEX. LAB. CODE ANN. S408.001(a) provides that the recovery of workers compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance for a work related injury. This 2005 statute has had the effect of limiting the liability of employers whose workers bring personal injury claims alleging work related exposure to asbestos resulting in the industrial disease, mesothelioma.  The statute enables the employer to produce its workers’ compensation policies going back to the time of worker exposure thereby limiting the worker’s recovery to the policy limits. Continue reading “Texas Employers Hit with Asbestos Suits Seek Historical Workers Comp Policies”

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By David A. O’Neill

A recent decision by the Indiana Court of Appeals may have a profound effect on the ability of schools, churches and general contractors to rely on general liability insurance policies insuring them and their employees against sexual abuse or battery claims.

While insuring agreements in general liability insurance policies exclude coverage where the insured’s actions leading to bodily injury or property damage are “expected or intended by the insured,” the Separation of Insureds provision in these policies can allow for coverage for one of the insureds even where the other insured’s acts may not be covered.  The Indiana Court of Appeal issued its opinion in Holiday Hospitality Franchising, Inc. v. Amco Insurance Company on October 13, 20011, finding that Holiday Hospitality’s hiring or supervision of an employee who molested a business invitee constituted an occurrence under its general liability insurance policy even where the employee’s action was intentional. Continue reading “Indiana Court Finds Occurrence in Employer’s CGL Policy Even Where Bodily Injury Intended by Employee”

Written by Justin Gifford, General Counsel for PolicyFind

In Hinds Investments, L.P. v Team Enterprises, Inc., et al (2011 WL 3268027 (C.A.9 (Cal.))) (“Hinds I”), and Hinds Investments L.P. v Team Enterprises Inc. (2011 WL 3250461 C.A.9 (Cal.))) (Hinds II)Hinds Investments, L.P., a property owner pursued R.R. Street and Co. and others (“Street,” the manufacturer of a PCE filters & distillation units) in an attempt to prosecute a RCRA citizen suit for contributor liability and to attach CERCLA arranger liability for cleanup costs as an arranger/disposer of hazardous waste (used PCE). The original actions were brought in the eastern district of California where the District Court Judge granted Team’s motion for dismissal for the plaintiff’s failure to state a claim upon which relief could be granted.  District Judge O’Neill found that the various defendants’ manufacture and sale of the useful dry-cleaning equipment did not rise to the level of arranging for the disposal of the hazardous waste.  In both decisions, the Circuit Court’s decision was largely based upon the lack of an active role by the defendants in the disposal of the hazardous waste. Continue reading “Equipment Manufacturer Not Liable as Arranger of Hazardous Waste”

In Team Enterprises, LLC v. Western Investment Real Estate Trust, et al (2011 WL 3075759 (C.A.9 (Cal.))), Team Enterprises, LLC (“Team,” a dry cleaner) pursued R.R. Street and Co. (“Street,” the manufacturer of a PCE filter & still) in an attempt to get CERCLA contribution for cleanup costs as an arranger and disposer of hazardous waste (used PCE). The original action was brought in the eastern district of California where Judge O’Neill granted Street’s motion for summary judgment, finding that Street’s manufacture and sale of the useful dry-cleaning equipment did not rise to the level of arranging for the disposal of the hazardous waste and that Street’s facilitation of PCE delivery to Team did not make Street responsible for its ultimate disposal.

Following Judge O’Neill’s summary Judgment, Team appealed on several similar grounds, asserting that Street “took intentional steps” and “planned a disposal” of PCE, neither of which Circuit Judge O’Scannlain accepted, again referencing the useful product doctrine (the sale of useful products for legitimate business purposes is not the same as selling or arrange the transfer of hazardous waste, which no longer has a useful purpose and is likely done to avoid liability for disposing of hazardous waste). Judge O’Scannlain’s example clarifies the issue, “It would be odd, for example, to say that an auto parts store sells motor oil to car owners for the purpose of disposing of hazardous waste.” Without Team’s proving that Street’s sale of the Rescue 800 distiller was intended to result in Team’s disposal of the PCE, no liability could be attached under CERCLA. Continue reading “Ninth Circuit Upholds Manufacturer CERCLA Useful Product Defense”