Acquiring adequate insurance coverage against environmental risks, in particular the spill or release of pollutants or contaminants in day-to-day operations, is important to many construction businesses confronting the requirements of environmental regulation. For example, EPA’s hazardous waste rules require permittees (at both the state and federal level) to demonstrate financial responsibility for the operations of these facilities, including site closure and post-closure care, and coverage for sudden and accidental discharges. This requirement can be satisfied by proof of acceptable insurance coverage. In addition, having such insurance often assists companies facing the challenge of an extensive and prolonged Superfund cleanup. Many courts have ruled that the receipt of a Superfund Notice Letter from EPA triggers the responsibility of the insurer to provide the coverage in the policy.
Responding to an inquiry from the U.S. Court of Appeals for the Fifth Circuit, the Texas Supreme Court ruled Friday, in a 5 to 4 decision, that the “coercive nature” of the administrative proceedings employed by the Environmental Protection Agency (EPA) under Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA) cleanup and cost recovery provisions amount to a “suit”, and a potentially responsible party’s (PRP) receipt of a CERCLA letter from EPA, inviting the recipient to negotiate with EPA “is effectively a demand”. Moreover, with respect to judicial review, “as a practical matter, courts afford PRPs no hope of relief, and consequently they have no choice but to comply with EPA’s directives”. The case is McGinnes Industrial Maintenance Corporation v. The Phoenix Insurance Company and The Travelers Indemnity Company. Chief Justice Hecht wrote the majority opinion.
This decision was triggered by ongoing cleanup actions taken at the San Jacinto Waste Pits Superfund Site, which is located in Harris County, Texas, in the vicinity of Pasadena, Texas. According to the Court, in the 1960’s McGinnes Industrial Waste Corporation (McGinnes) dumped pulp and paper mill waste sludge into disposal pits near the San Jacinto River. EPA began investigating possible environmental contamination in 2005 and, in 2007, notified McGinnes’ parent company that it was a PRP at the site, and invited the parent company to begin negotiating an order for the cleanup of the site, and the reimbursement of EPA’s expenses to date. When McGinnes and its parent company failed to respond to these EPA communications, EPA issued a Unilateral Administrative Order (UAO) directing McGinnes to conduct an remedial investigation and feasibility study; a failure to comply with this UAO would expose McGinnes to $37,500 per day in daily penalties and very costly punitive damages.
McGinnes was covered by a standard-form commercial general liability (“CGL”) insurance policies at the time it was “dumping” waste at the site, and it asked for a defense in accordance with the terms of the insurance policy. The insurers refused, arguing that these EPA administrative proceedings are not a “suit,” as specified by the policy. McGinnes then sued its insurers in federal court, but the court agreed with the insurers’ position, granting their motion for summary judgment. On appeal to the Fifth Circuit, that Court of Appeals asked the Texas Supreme Court to answer the question” “Whether EPA’s PRP letters/and or administrative order, issued pursuant to CERCLA, constitute a ‘suit’ within the meaning of the CGL policies, triggering the duty to defend” — to which the Texas Supreme Court answered: “Yes”.
Dissenting justices Boyd, Johnson, Guzman and Lehrmann argued that the Court was, in effect, rewriting these insurance policies, and described the ruling as a “disturbing decision”.
A version of our article titled Surviving the Storm originally appeared in a Bay Area Council publication in the March 2015. It discusses Superstorm Sandy’s sobering preview of the types of insurance and risk management issues that business and residents face given the prospects of a catastrophic storm.
Florida’s Third District Court of Appeals recently held that whether “prompt” notice was given to an insurer of a claim occurring over three and a half years after a hurricane caused damages to a condominium is a question of fact that must be given to the jury. This ruling confirms that the date on which an insureds’ duty to report a claim is triggered under an insurance policy’s notice provision is an issue of fact not ripe for summary judgment. The case is Laquer v. Citizens Property Insurance Corporation.
Today, Pillsbury attorneys Joseph Jean, Alexander Hardiman and Matthew Putorti published their client alert titled Don’t Trust, Verify: What Every Business Needs to Know About Certificates of Insurance. The Alert discusses the general rule in New York that a certificate of insurance (COI), by itself, does not provide insurance coverage. It explains that this means that businesses that rely solely on COIs as evidence of their status as additional insureds might not actually be covered in the event of a loss. A recent New York case, however, is a reminder that this general rule is not the end of the inquiry and that there are possible ways to still get recovery.
Additional Source: Southwest Marine & Gen. Ins. Co. v. Preferred Contractors Ins. Co., No. 153861/2014, 2015 N.Y. Slip Op. 30544(U) (N.Y. Cnty. Apr. 13, 2015).
Today, Pillsbury attorneys James Lloyd, Vince Morgan, Adam Weaver and Tamara Bruno published their client alert titled USGS’s Increase of Texas’s Earthquake Risk Level: Commercial Real Estate and Insurance Implications. The Alert discusses the increase in seismic activity in the Fort Worth Basin and the likelihood that this increase will lead to a corresponding rise in the official earthquake risk level for the Fort Worth Basin when the United States Geological Survey (USGS) releases an updated earthquake hazard map in the coming months. This map and the USGS’s estimates of seismic risk play a crucial role in determining insurance costs, building codes and lenders’ insurance requirements.
A unanimous panel of the Illinois Appellate Court recently held that three insurers have a duty to defend any case in which the bare underlying allegations – if proved – would render their insured liable, regardless of extrinsic facts. This sweeping ruling confirms that the duty to defend is a form of “litigation insurance,” protecting the insured against the costs of being wrongly sued, however groundless the claims against it may be. The case is Illinois Tool Works Inc. and ITW Finishing LLC v. Travelers Casualty and Surety Company, et al.
Monday, we published our client alert A Boost for Business: Time to Reaffirm or Secure Terrorism Insurance. The Alert discusses H.R. 26, a bill signed into law on January 12, 2015 by President Obama enacting the Terrorism Risk Insurance Program Reauthorization Act of 2015 (TRIPRA of 2015). TRIPRA provides a federal backstop for insurance against risks of terrorism and extends until 2020 the Terrorism Insurance Program established under the Terrorism Risk Insurance Act (TRIA) of 2002, which expired at the end of 2014. The measure lifts a cloud of uncertainty that was proving difficult for property owners, especially in major metropolitan areas, as there was insufficient capacity in the private insurance market to meet their needs.
On October 20, 2014, the U.S. Court of Appeals for the Tenth Circuit unanimously affirmed the lower court’s ruling that the commercial liability insurance policies purchased by Headwaters Resources, Inc. contained unambiguous “pollution exclusion” provisions which excluded Headwaters’ demand that its insurers reimburse its litigation defense costs. The case is Headwaters Resources, Inc. v. Illinois Union Insurance Company and ACE American Insurance Company.
Headwaters constructed a golf course in Chesapeake, Virginia, using fly ash, which is derived from coal ash, as a fill material. Several hundred homeowners sued Headwaters in Virginia state court alleging that that the use of fly ash caused property damages and bodily injuries as a result of the pollution generated by this use of the fly ash. Both insurers denied coverage, and Headwaters sued the insurance companies in a federal district court in Utah. At issue were the policy exclusions which “excise coverage for ‘bodily injury’ and ‘property damage’ that stems from ‘actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants” when combined with at least one of five circumstances enumerated in lettered subparts.”
The Court of Appeals affirmed the lower court’s holding that the pollution exclusion provisions were unambiguous and therefore the policies do not cover these claims; the district court found that the “the complaints in the . . . lawsuits alleged bodily injury and property damage arising out of the actual or threatened dispersal of pollutants from waste that was processed by Headwaters,” and “[t]aken broadly, the complaints allege pollution of the type that falls within the pollution exclusions in all the policies.” The Court of Appeals also noted that Headwaters was free to purchase special purpose coverage for pollution liability, but chose not to do so.
In the Court of Appeals decision, it notes that “[s]ince the 1970’s, the extent to which pollution exclusions apply to preclude coverage in commercial general liability (CGL) policies has been a ubiquitous feature of insurance litigation. Generally speaking, jurisdictions that have addressed the scope of the ‘total pollution exclusion’ fall into one of two camps: (1) courts that apply the pollution exclusions as written because they find them clear and unmistakable; and (2) courts that narrow the exclusions to ‘traditional environmental pollution,’ often because they find the terms of the exclusion to be ambiguous due to their broad applicability.” It also notes that the Utah Supreme Court has not yet weighed in on this debate.
The Texas Supreme Court confirmed that it will decide an issue of Texas law that was certified to the Court by the U.S. Court of Appeals for the Fifth Circuit. The case is McGinnes Industrial Maintenance Corporation v. The Phoenix Insurance Company; The Travelers Indemnity Company. The issue is whether the receipt of Potentially Responsible Party (PRP) letters and unilateral administrative order, issued pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), from EPA Region 6 is a “suit” that triggers a duty by the insurers to defend, investigate and settle.
McGinnes is in the waste disposal business and, in the 1960s, McGinnes removed waste from a paper mill and released it into three ponds located adjacent to the San Jacinto River. McGinnes is a potentially responsible party at the San Jacinto Waste Pits Superfund site in Harris County, Texas. McGinnes is cooperating with EPA in developing a cleanup plan for the site, but McGinnes is also being sued in state court for past violations of the state environmental laws pertaining to waste cleanups. Its liability could well be assessed at millions of dollars in addition to the cleanup costs. The Fifth Circuit believes that this issue of state law requires clarification by the Texas Supreme Court. This is an important case; different courts in different states have issued rulings coming down on both sides of this issue. No date for oral argument has been scheduled.