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 sent a letter to …

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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 it to go after …

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Issue of Whether EPA Administrative Orders Pursuant To CERCLA Qualify As A “Suit” Certified To Texas Supreme Court

This environmental coverage action involved a dispute over whether the insurers had a duty to provide a defense to claims brought by the EPA in a CERCLA remediation action involving hazardous waste contained in three surface impoundments.  The 5th Circuit interposed a certified question to the Supreme Court of Texas whether the EPA’s PRP letters and unilateral administrative orders issued pursuant to CERCLA constitute a “suit” within the meaning of the commercial general liability (CGL) policies triggering a duty to defend.

The plaintiff policyholder …

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