Category: Blog

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The California Supreme Court reviewed the Fourth District Court of Appeal’s decision in Ameron International Corp. v. Insurance Company of the State of Pennsylvania, 150 Cal Ap4th 1050, on November 18, 2010 and found grounds to distinguish this case from its ruling in Foster-Gardner v. National Union Fire Ins. Co., 18 Cal.4th 857, 959 P.2d 265 (1998). Continue reading “California Supreme Court Distinguishes Foster-Gardner Administrative Hearing Can Trigger Insurer’s Duty to Defend”

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Historically, the dry cleaner’s business insurance policy has been a package policy with more than one line of insurance in it. One of these lines is typically general liability insurance: the type of insurance that protects the business against liability from injuries to customers or to the property of others. The standard general liability coverage available to small business owners has for decades been commercial general liability coverage and is usually found in section two of the package policy. Continue reading “Whether Dry Cleaner’s Insurer Defends In Pollution Case Depends on His State Court’s Definition of “Suit””

Decision Adopts Vertical Exhaustion Theory, Clarifies Plastics Engineering

Early this month, the Wisconsin Court of Appeals District 1 affirmed a trial court’s ruling that vertical exhaustion was the appropriate theory to apply in progressive injury cases and elaborated upon the Wisconsin Supreme Court’s 2009 holding in Plastics Engineering Co. V. Liberty Mutual Insurance Co.[ii] that Wisconsin is an “all sums” allocation state. Continue reading “Westport Insurance Corporation v. Appleton Papers, Inc Westport Insurance Corporation v. Appleton Papers, Inc. [i]”

At least a couple of times a week we hear from another dry cleaner who, facing a lawsuit by his landlord or has received notice from the state environmental agency. He has already turned to his insurance agent for coverage for the damage to soil and groundwater allegedly caused by his operations over the years. The dry cleaner, who failed to keep copies of his old policies, had been hoping that his long-time insurance agent would have them.  He is surprised by his insurance agent’s excuse. “ The new record retention plan only requires that we keep records for seven years.” Continue reading “Defending Dry Cleaners with Old Insurance Policies”

Within the last twelve months, the Second District California Court of Appeal has been busy clarifying the cost-sharing obligations of insurers , who in defending against long-tail claims, seek to bring their policyholder’s other insurers into the fray.

The Second District California Court of Appeal ruled last summer in One Beacon America Insurance Co. v. Fireman’s Fund Insurance Company (2009) 175 Cal. App. 4th 183, that an insurer’s obligation of equitable contribution for defense costs arose where, after notice of litigation, a diligent inquiry by the insurer would have revealed the potential exposure to a claim for equitable contribution. Continue reading “Second District California Court of Appeal’s Rulings on Equitable Contribution Relax Notice Requirements to Trigger Cost Sharing Obligations, Use Allocation Agreements to Determine Payments Exceed “Fair Share””

The issue of whether it is legal in California to “stack” policy limits to determine the amount of recovery to which an insured is entitled in a continuous and progressive property damage claim scenario is once again the million dollar question of unsettled California insurance coverage law. The California Supreme Court has previously defined “stacking” as “the ability of the insured, when covered by more than one policy, to obtain benefits from a second policy on the same claim when recovery from the first policy would alone be inadequate to compensate for the actual damages suffered.” The question of whether the “stacking” of policy limits would be allowed in California had been settled it seemed, until recent events have proven otherwise. Continue reading “California Supreme Court Decision Expected In District Court Conflict Over “Stacking of Policy Limits” in Progressive Property Damage Cases Director of Investigations”

The question of how broadly the Indiana Supreme Court’s ruling in American States Insurance Company v. Kiger, 662 N.E. 2d 945 (Ind. 1996) can be interpreted was further decided on March 25, 2010 when the United States Court of Appeals, Seventh Circuit reached a decision in the West Bend Mutual Insurance Company v. U.S. Fidelity and Guaranty Company case. The original Kiger ruling enabled insured parties to avail themselves of a defense against environmental claims after insurance carriers started using Absolute Pollution Exclusionary language in their policies (roughly post 1985-1986) because the Supreme Court ruled that Pollution Exclusion was ambiguous. This appellate decision is a caution to those owners and operators of retail gasoline service stations, who have been waiting to have their properties tested for pollutants in reliance on the effect of the Kiger ruling. They will now be carefully reviewing the pollution exclusionary and definitions clauses in their policies to determine whether the Kiger or West Bend rules apply to their situations. Continue reading “U.S. Circuit Court Finds Limits to Indiana’s Kiger Decision In Federated’s Unambiguous Policy Language”

The Environmental Corner
By: John C. Bird, P.G., Vice President of EnviroForensics

The City of Modesto, California, began monitoring ground water in September 1984 to test 25 percent of its municipal water supply, as required by California Assembly Bill 1803. Of the 24 wells tested, 12 wells were found to be contaminated. Municipal Supply Well #11 was found to be contaminated with 16.7 parts per billion (ppb) of perchloroethylene (PCE); the State Maximum contamination Level is 5 ppb. The well was taken out of service. The City obtains all its drinking water from wells. An estimated 142,000 people obtain drinking water from Modesto municipal wells within 3 miles of the site. The California Department of Health Services (CDHS)  and the Stanislaus County Environmental Health Department have identified Halford’s Cleaners,  which is less than 0.5 mile upgradient of Municipal Supply Well #11, as a likely source of the PCE  contamination. These agencies found up to 176,000 ppb of PCE in soil at Halford’s where a buried storage tank was being excavated and determined that Halford’s discharge to the sewer was contaminated. CDHS also found 84.6 ppb of PCE in a private well adjacent to Halford’s. Not long after, the United States Environmental Protection Agency (US EPA) took over the investigation and cleanup under the Superfund Program. This individual site is currently being remediated under S EPA control. The Halford’s Cleaners site was just the tip of the iceberg in Modesto. Continue reading “The Road Goes On Forever And The Trial Never Ends”