Pennsylvania Court Rejects Manifestation Trigger for Latent Property Damage Claims

The Commonwealth Court of Pennsylvania recently determined that the multiple trigger rule, and not the manifestation rule, is the proper standard to use when determining whether an insurance policy is triggered in an environmental property damage claim involving a long latency period between exposure and manifestation. See Pennsylvania Manufacturers’ Association Insurance Company v. Johnson Matthey, Inc., et al., 2017 WL 1418401 (Pa. Commw. Ct. Apr. 21, 2017), This decision, which is at odds with statements by the Pennsylvania Supreme Court
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Is an Argument Challenging Precedent Bad Faith? Pennsylvania Bad Faith Ruling in Asbestos Coverage Case Raises This Important Question

Since 1993, the Pennsylvania Supreme Court’s decision in the J.H. France case has dictated that the continuous trigger rule be applied to determine what insurance policies are triggered for asbestos injury claims. Under J.H. France, coverage is provided by policies in effect from the time the claimant was first exposed to asbestos until injury manifests as mesothelioma. The J.H. France court’s decision was expressly based on the science behind mesothelioma, which indicates that mesothelioma is a continuous, progressive injury that
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EPA Inquiries Under CERCLA Trigger the Duty to Defend . . . To The End

The Ninth Circuit Court of Appeals ruled that the unique liability regime of CERCLA qualifies a request for information under the statutory scheme as a “suit” within the meaning of general liability insurance policies, thereby triggering an insurer’s duty to defend its insured. The court also held that this duty to defend continues until the EPA issues its final Record of Decision. The insured cement company ran two of its cement plants on an Oregon Superfund Site. In 2008, the EPA
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No Smoking! Pollution Exclusion Bars Coverage For Claims Arising Out of “Smoky” Beverage

While Florida courts have typically refused to limit pollution exclusions within insurance policies to traditional environmental claims, a District Court in Florida has extended the application of such exclusions even further by finding that a pollution exclusion applies to claims against a bar for injuries allegedly caused by an “exotic” cocktail served by the bar. In Evanston Insurance Company v. Haven South Beach, LLC, et al., Case No. 15-20573 (S.D. Fla. Dec. 28, 2015), the insured, a bar, served an
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Texas Supreme Court Holds that EPA Proceedings Constitute “Suit”

In McGinnes Industrial Maintenance Corp., v. The Phoenix Ins. Co., the Texas Supreme Court answered a certified question from the Fifth Circuit on whether a U.S. Environmental Protection Agency proceeding against an alleged polluter constitutes a suit under an insurance policy, warranting defense coverage. In a 5-4 decision, the Texas court determined that the EPA proceedings constitute suits against and found that the insured could now pursue claims against the insurers for defense costs. The policyholder sought a ruling allowing
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Injuries Caused By a Gas Explosion Covered By Pollution Liability Policy

In Acuity, A Mut. Ins. Co. v. Chartis Specialty Ins. Co., 2015 WI 28, P52 (Wis. 2015), the Wisconsin Supreme Court has held that a pollution liability policy issued by Chartis Specialty Insurance Co., covered lawsuits alleging property damage and bodily injury caused by a natural gas line explosion. The policy, held by a construction company, was found to be implicated because natural gas is a pollutant and contaminant, the escape of which was a “pollution condition” within the meaning
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Where There is Fire, There is Smoke

In Hobson v. Indian Harbor Insurance Co., No. 316714, 2015 WL 1069242 (Mich. Ct. App. Mar. 10, 2015), the appellate court in Michigan rejected the insurers’ interpretation of the pollution exclusion in the landlord’s commercial general liability (“CGL”) insurance policy to deny the tenants’ bodily injury claim. The dispute arose when the plaintiffs sustained bodily injuries from a fire that broke out in the apartment building where they resided. Subsequently, the plaintiffs sued the landlord and its insurers, alleging that
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Wisconsin High Court Gets Its Hands Dirty by Ringing in the New Year with Two Decisions about Coverage for Feces Contamination

The Wisconsin Supreme Court recently addressed the pollution exclusion in two similar decisions involving contaminated well water. First, in Preisler v. General Casualty Insurance Co. et al., 2014 WI 135, the Supreme Court affirmed an order of summary judgment in favor of Rural Mutual Insurance Company, Regent Insurance Company, and General Casualty Company, finding that the pollution exclusion barred coverage. The underlying suit arose out of tainted well water that caused Fred and Tina Preisler’s cattle to die at an
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Oregon Federal District Court Gives Insurer Partial Win in Superfund Case

In Siltronic Corp. v. Employers Ins. Co. of Wausau, No. 3:11-cv-1493, 2014 U.S. Dist. LEXIS 153275 (D. Or. Oct. 28, 2014), an Oregon federal court granted partial summary judgment for the insured Siltronic Corp. (Siltronic), finding the insurer Employers Insurance Company of Wausau (Wausau) had a duty to defend against claims related to the cleanup of a Superfund site.  The district court, however, denied Wausau had a duty to pay any pre-tender defense costs. The coverage dispute arose from one
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No Further Information Required: 10th Circuit Confirms Clear Pollution Exclusion and Rejects Insured’s Attempts to Introduce Extrinsic Evidence

This environmental coverage action involved a determination of the insurers’ obligations to reimburse the policyholder for its litigation costs arising from an action commenced by over 400 Chesapeake, Virginia landowners.  The landowners alleged a golf course developer caused personal injury and property damage through the use of contaminated fly-ash material during the construction of a nearby golf course. The policyholder was insured under seven commercial general liability policies that required the insurers to reimburse Headwaters for expenses associated with lawsuits
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