Absolute Pollution Exclusions Are Not Absolute

Insurance is a crucial source of funding for most environmental cleanups. For the past 30 years, comprehensive general liability insurance policies have uniformly included an "absolute pollution exclusion" in some form or another. The earliest such exclusions appeared in the 1950's, but they became ubiquitous boilerplate in the mid-1980s. As a result, most applicable environmental coverage is found in policies pre-1985, and many policyholders incorrectly assume that their post-1985 policies provide no such coverage. This assumption stems from a string of court decisions finding that absolute pollution exclusions eliminate coverage for traditional industrial pollution under Oregon law. Martin v. State Farm Fire & Cas. Co., 146 Or. App. 270, 275-80, 932 P.2d 1207 (1997); Ind. Lumbermens Mut. Ins. Co. v. W. Or. Wood Prod., Inc., 268 F.3d 639 (9th Cir. 2001). While absolute pollution exclusions are broad, and often do exclude pollution from traditional sources, they do not eliminate all coverage for environmental claims, and policyholders should thoroughly review each of their policies to determine whether coverage exists.

Most absolute pollution exclusions are incorporated into standardized forms and use language originally written by the Insurance Services Office (the "ISO"). The ISO's pollution exclusion, which is widely referred to as the "absolute pollution exclusion," actually expressly creates coverage in certain circumstances. For example, the ISO's exclusion does not apply if contamination results from a "hostile fire" or from a failure of equipment used to heat, cool, or dehumidify a building. While the factual scenarios in which express coverage is created are limited, a policyholder should determine whether any such scenarios apply. Even if only part of the environmental claim falls within the scope of express coverage, the insurer may be required to provide a full defense under Oregon law. While the scenarios where coverage is expressly not excluded are few, it is important to review each such scenario at the outset to ensure that no coverage is missed.

Another important analysis is whether the environmental claim involves a pollutant as defined by the policy. If the contamination does not result from the release of a "pollutant," the exclusion typically will not bar coverage. The ISO exclusion includes a very broad definition of what constitutes a pollutant. While many courts have given the term "pollutant" a very broad interpretation, other courts have interpreted "pollutant" to include only traditional or inherently dangerous contaminants. MacKinnon v. Truck Ins. Exch., 31 Cal. 4th 635, 73 P.3d 1205, 3 Cal Rptr. 3d 228 (2003); In re Hub Recycling, Inc., 106 B.R. 372 (D.N.J. 1989). Determining whether a released substance is a pollutant often requires a review of how the substance was used and how it has impacted the property. While many courts have addressed whether commonly applied products, such as pesticides, can be considered pollutants, many of these questions remain unanswered under Oregon law. If contamination has resulted from something other than the accidental release of a regulated substance, a policyholder may have coverage despite the inclusion of an absolute pollution exclusion by showing that the substance is not a "pollutant."

Policyholders also need to be on the lookout for policies that include purported absolute pollution exclusions that do not utilize standardized ISO language. While most policies include standardized ISO exclusions, some insurers have used individualized exclusions that apply less broadly. For example, some of the early insurer-specific absolute pollution exclusions apply only to releases into waterbodies or to claims brought by government authorities. In these cases, coverage remains in place for releases onto land or claims brought by corporations. Insurer-specific absolute pollution exclusions are most commonly found in policies from the 1980s, but a policyholder may run into them at any time.

While absolute pollution exclusions often leave an insured without coverage, they are not as ironclad as their name suggests. The policyholder facing an environmental claim should retain coverage experts as soon as possible to determine which policies create coverage, including those policies that include purported absolute pollution exclusions.
           

Oregon District Court Provides Clarification on Environmental Coverage Issues

In the most recent opinion in the ongoing Marine Group litigation, Judge Acosta clarified two issues that recur in complex environmental insurance litigation: first, which party has the burden of proving that incurred defense costs were reasonable and necessary; and second, whether an insured can recover pre-tender defense costs.

Burden of Proving Reasonableness and Necessity

The issue of which party has the burden of proving, or disproving, that incurred defense costs were reasonable and necessary was addressed in Ash Grove Cement Co. v. Liberty Mut. Ins. Co. In that case, Judge Hernandez endorsed California's rule by holding that when" the insurer has breached its duty to defend, it is the insured that must carry the burden of proof on the existence and amount of the site investigation expenses, which are then presumed to be reasonable and necessary as defense costs, and it is the insurer that must carry the burden of proof that they are in fact unreasonable or unnecessary." Under the clear language of the Ash Grove opinion, a breaching insurer must prove the defense costs to be unreasonable and unnecessary, after the insured proves their existence and amount. Despite holding that this burden-shifting rule applies, Judge Hernandez's application of the rule was unclear, and several breaching insurers have questioned whether they do indeed have the burden of proving defense costs to be unreasonable and not necessary.

This question arose in Marine Group through a complicated motion to compel in which the relevancy of various documents was in question. In ruling on relevancy, Judge Acosta found that it was necessary to establish who has the burden on the issues of reasonableness and necessity. Judge Acosta endorsed the position taken by Judge Hernandez: that when a carrier has breached its duty to defend, the burden of proving the reasonableness and necessity of the fees shifts from the insured to the insurer. Thus, the insured's fees are presumed to be reasonable and necessary when an insurer has improperly breached its duty to defend. This is a win for policyholders, and should make it easier for insureds to recover fees when insurers have wrongfully refused to participate in a defense.

Another wrinkle in the Marine Group litigation is the presence of a paying insurer, Argonaut. Since early on in the defense, Argonaut has paid Marine Group's defense costs. Thus, most of the damages being sought are through a contribution action between insurers, and not a direct coverage claim. Marine Group, along with Argonaut, made the argument that since the claim is primarily a contribution action between insurers, the reasonableness and necessity of the fees was not at issue, but instead the issue is whether Argonaut acted as a reasonable insurer. Similarly, both parties made arguments under ORS 465.480(4)(d) that the common law of contribution was preempted and that the breaching insurers should be prohibited from questioning the defense costs incurred. Judge Acosta rejected this line of reasoning in holding that St. Paul could question the defense costs, but that it bore the burden of proving the fees to be unreasonable and not necessary.

Pre-Tender Defense Costs

While the Marine Group litigation primarily involves a contribution action between Argonaut and other insurers, Marine Group also has a direct contractual claim against its insurers for certain sums not paid by Argonaut. Some of these unpaid defense costs are pre-tender. In other words, they were incurred by Marine Group before it formally sent a letter to its insurers that detailed the claims faced and requested that a defense be provided.

Most states follow the rule that pre-tender defense costs cannot be recovered by an insurer; this underlines the importance of identifying, and tendering to, insurers at the earliest point of any litigation. Marine Group attempted to escape the strict application of the pre-tender rule by invoking the notice-prejudice rule, which does not allow an insurer to deny defense costs because of delayed notice, unless it can show that the delay caused prejudice to the insurer. Judge Acosta found the notice-prejudice rule to be inapplicable because the duty to defend did not arise until the tender occurred. Thus the court held that the notice-prejudice rule does not apply to pre-tender defense costs, because it applies only to covered claims.

Ultimately, Judge Acosta ruled that under Oregon law, pre-tender defense costs are not recoverable. This presents a particularly difficult situation for companies facing historic environmental liabilities. Typically, the only policies that cover historic pollution events were written before 1986. Many companies do not have readily available copies of these insurance contracts. Indeed, historic insurance archaeologists must often be retained to identify these policies. Judge Acosta's decision reinforces the rule that defense costs incurred while a party is looking for its insurance coverage are not recoverable, even to the extent that the delay does not meaningfully prejudice the insurers.

Oregon Trial Court Adopts "All-Sums" In Environmental Coverage Case

A great win last month for the Zidell real-estate group (owner of much land in the South Waterfront area of Portland, including a historic ship-repair yard) in the longest-running environmental contamination case in Oregon history: a Multnomah County judge held that Zidell's carriers must pay for environmental remediation based on the "all sums" approach.  (Click here for Zidell's reply brief in support of its motion for summary judgment, and here for the court's order granting Zidell's motion).

The case centers around costs that Zidell paid many, many years ago to clean up contamination portions of the Willamette River in downtown Portland upriver from the Portland Harbor Superfund Site.  The dispute, which is between Zidell (or really its "ZRZ Realty" entity) and numerous carriers including various Lloyd's syndicates, is back in the trial court after its umpteenth trip into the appeals courts.  Recently, the court was asked to decide (among other things) whether the insurance carriers could limit their indemnity obligations based on the so-called "time on the risk" approach, where each carrier only pays in proportion to the number of years that it issued policies to the insured, meaning that if the insured settled with other carriers, or was uninsured for any years, there could be large portions of the costs that are not reimbursed.  The alternative is the "all sums" approach, in which the carrier is liable to pay for all of the property damage if there was property damage during any of its policy years, up the limit of its policies.

The Oregon Environmental Cleanup Assistance Act (OECAA) specifically wrote the "all sums" approach into law for certain policies, and, separately, there is Oregon case law endorsing the "all sums" approach.  Zidell's carriers, however, argued that the OECAA's provisions could not apply to them, and that the "all sums" approach is unfair.  The arguments on both sides are complex and detailed.  Fortunately, the Multnomah County Circuit Court saw the light and rejected the carrier-side arguments, holding that the indemnity obligations will be resolved based on "all sums."  This appears to be the first of hopefully many trial-court decisions adopting the "all-sums" approach in connection with indemnification for environmental liabilities in Oregon.  As the date for issuance of the ROD in the Portland Harbor comes nearer (although several years away), decisions like this one (which will hopefully be affirmed on appeal) will help shape the resolution of hundreds of coverage disputes over paying the billion-plus tab to clean up the downstream portions of the Willamette.

Or. Fed Court Rejects "Hail Mary" Insurer Argument Against Attorney Fees

The dispute between Schnitzer Steel and its carriers over defense at the Portland Harbor Superfund Site has been addressed many times in this blog, because it has raised many novel and fascinating (to me, anyway!) issues.  Here is the latest: on November 12, 2014 Judge Mosman ruled on Schnitzer's motion for attorney fees after Schnitzer prevailed completely at trial this last April, recovering more than $8 million in defense costs.  Schnitzer then requested nearly $3.5 million in fees under ORS 742.061.  In response, the carriers tried a "hail mary" to zap the fee entitlement entirely: they argued that because the statute applies only to actions brought on an insurance policy "in any court of this state," and because actions brought in federal court are brough in a court in Oregon but not of Oregon, the statute did not apply.

Judge Mosman found the argument worthy of some consideration, but ultimately rejected it.  Judge Mosman held that under Erie and consistent with the purposes of the statute, a federal court in Oregon is a court "of the state."  The court noted that any other result would produce an anomaly: a case in an Oregon state court applying Oregon law would result in a fee award, whereas the same case that was removed as of right by an insurance carrier to federal court would not.

This is another important development in the protection of one of the few levers available to policyholders in Oregon because other than in the environmental arena (as of last year), the conventional wisdom is that there is no "bad faith" remedy where an insurance carrier denies a defense under a liability policy.  However, given the size of the attorney fee award (nearly all of what Schnitzer requested), the carriers certainly have an incentive to raise this issue again on appeal.

Oregon Environmental Coverage Decision Emphasizes Importance of Early Tender

A new decision from the Oregon federal court emphasizes the need to tender any kind of potentially covered claim as early as possible.  The decision was, by and large, a win for the policyholder, but as noted at the end of this post the court carved out a large chunk of costs based on the timing of notice.

The decision, issued on October 28, 2014, came from Magistrate Judge Stewart in the long-running coverage dispute between Siltronic Corporation and its primary layer and excess carriers over costs for both cleanup of some of Siltronic's property within the Portland Harbor Superfund Site ordered by DEQ, and defense against the EPA claims at the Harbor.  The claims against Siltronic involved both contamination of soil, and river sediment, by TCE and MGP (Manufactured Gas Product).  Siltronic had seven potentially applicable policies, from 1978 through 1986, with Wausau as primary and Granite State as excess.  Wausau initially provided Siltronic with a defense under policies from 1980 through 1986, until Judge Stewart held that Wausau could stop defending the company because the primary insurer had paid to clean up TCE contamination and in so doing exhausted those six years of coverage.  Siltronic's excess layer carrier has been paying to defend the company since then.

The issue presented for Tuesday's ruling was what to do with the 1978 - 1980 policy.  Wausau had not been defending under that policy because Siltronic had not produced TCE until 1980, and Wausau contended that Siltronic had not tendered defense of  the MGP contamination.  Judge Stewart rejected that contention, noting that the DEQ letters and orders relating to the cleanup and included both MGP and TCE, and that therefore under the "eight-corners rule" in which the court only looks to the "four corners" of the policy and the "four corners" of the complaint (or equivalent), the tender had included MGP.  Wausau also contended that it had no duty to defend under the 1978 policy because Siltronic had not actually incurred costs to defend against MGP-related liability, because NW Natural Gas, the successor to the prior owner of the MGP-contaminated site, had agreed to pay for cleanup.  However, the evidence did not clearly establish that Siltronic had no potential future liability for the MGP contamination due to the agreement with NW Natural.   Questions about whether Siltronic had incurred defense costs related to MGP were questions for trial on damages, according to the ruling.

The court did exclude from consideration, however, a seemingly large chunk ($450,000) of defense costs incurred by Siltronic relating to the contamination.  It appears that Siltronic did not tender the DEQ and EPA communications to any carrier until TCE issues came to light, which was a few years after Siltronic had begun incurring costs relating to MGP.  Judge Stewart held that under the "voluntary payments" provision of the policies Wausau was under no obligation to pay any pre-tender defenses costs.  This reading of the voluntary payments provision has become the accepted wisdom among Oregon's federal courts, although policyholders continue to challenge it.

The take-away is this: tender early, and tender everything that could be a claim or suit, and do not equivocate about seeking a defense.

Another Strong Ruling on Prejudgment Interest From Oregon's Federal Courts

Oregon's federal court has struck another blow against the insurance industry's attempts to limit prejudgment interest in duty-to-defend disputes.  Somewhat ironically, this ruling comes a case that has turned into a carrier v. carrier fight over contribution.

In the latest ruling in the long-running Northwest Pipe v. RLI coverage litigation, the court held that a non-defending carrier had to pay prejudgment interest to the defending carriers based on when the defense costs were paid, irrespective of when demand was made for reimbursement.  The non-defending carrier argued that it did not know, until demand was made on it, what the defense costs were.  The court rejected that argument, reasoning that if the carrier had not breached its contract and had agreed to defend, it would have been aware of the defense costs as they were being paid.

This new decision echoes Judge Hernandez' ruling in the Ash Grove litigation, which awarded prejudgment interest from when the policyholder paid the defense costs, without regard for when the insurance companies learned of the defense costs.

Schnitzer Verdict In Defense Cost Dispute Good News for All Policyholders

Late last month a jury awarded Schnitzer Steel all of the damages that it sought -- over $8 million -- in a coverage dispute with its liability carriers that centered on the rate being paid the environmental lawyers defending Schnitzer at the Portland Harbor Superfund Site.  This is a very unusual case, but it is likely to have a ripple effect on the insurer-insured dynamic when it comes to selection of defense counsel.  At the heart of the dispute was whether Schnitzer's defending carriers had the right to choose defense counsel, even if the insured believed those lawyers did not have the experience or ability to properly handle the case. Schnitzer's insurers, like most insurers, asserted that they had a nearly unfettered right to choose counsel, and took the position that if the insured insisted on another lawyer the carrier did not need to pay any more than the "panel counsel" rate.  The jury in Schnitzer rejected that argument.  The company recovered the difference between what it has been paying its California-based counsel (at rates nearing $900 per hour) and what its carriers had agreed to pay (roughly $250 per hour) for several years worth of intensive work.

As is usually the case one of the biggest fights was over the jury instructions, which embody the judge's conclusions about the governing law.  I have posted the jury instructions here.  Although the court ruled before trial that the recent amendments to the Oregon Environmental Cleanup Assistance Act (OECAA) relating to standards for "independent counsel" did not apply, the court nevertheless gave the jury an instruction on an insurer's obligations regarding defense counsel that is nearly identical to the statutory standard.  This instruction will give insured's ammunition to use with carriers attempting to foist "panel counsel" on the insured.  In most cases appointed panel counsel are excellent specialists in their fields, but on occasion a carrier will attempt to appoint someone who does not have the requisite experience, or has a particular conflict of interest (such as having represented the carrier on coverage matters).

More generally, the verdict should make carriers particularly leery about going in front of a jury in state or federal court.  The simple fact is that although Schnitzer had very excellent representation, many did not believe that they could convince a jury that a lawyer is worth $900 an hour, under any circumstances.  The fact that they were able to do so certainly speaks to their skill as advocates, but probably also speaks volumes about how juries view insurance companies that try to skirt their coverage obligations.

Oregon Federal Court Confirms Availability of Prejudgment Interest on Disputed Defense Costs

In an as-yet-unpublished decision in the long-running Ash Grove v. Liberty Mutual case the court recently granted the policyholder's request for prejudgment interest on defense costs recovered at trial.  Ash Grove (Case No. 09-239-HZ) involves reimbursement of legal fees and costs incurred in defense of claims associated with the Portland Harbor Superfund Site.  After pretrial rulings established that Ash Grove's carriers had a duty to defend, the case went to trial nearly a year ago on some remaining issues about the scope of the duty to defend, and damages.  Following a bench trial, the court held that the carriers' duty to defend began in January, 2008, when notice was initially given.  The court awarded Ash Grove over $1.8 million in defense costs from that point through the end of 2012.

In a post-trial motion, Ash Grove asked the court to award prejudgment interest at the statutory rate (9%) running from the date that the company paid each of the monthly invoices.  This was an issue of first impression in Oregon, at least on these facts.  Nationally, some courts had held  that where an insurance carrier contests the reasonableness of defense costs, the amount is not "readily ascertainable" (which is the near-universal test for awarding prejudgment interest) until the court has resolved those disputed issues, and thus prejudgment interest cannot be awarded.  That was the situation in Ash Grove - the carriers hotly contested nearly all of the company's defense costs.  The Ash Grove trial court rejected the carriers' view, instead siding with a contrary line of cases holding that a carrier's contentions about reasonableness of defense costs does not make the amount not "reasonably ascertainable."  The Ash Grove court also noted that without an award of prejudgment interest the policyholder would not be made whole.

Previously, the only cases in Oregon in which the court had awarded prejudgment interest on defense costs occurred in cases in which the reasonableness of  defense costs was not disputed.  This new ruling should increase the pressure on carriers to settle disputes over defense costs before trial.

Note: We have been privileged to act as local counsel for Ash Grove in this case.  Past results in any particular are no guarantee of future performance or result in any other case.  Neither this posting nor any other posting in this blog should be taken as legal advice.  See other disclaimers at bottom.

Oregon Federal Court Rules on Characterization of Environmental Cleanup Costs

Last week Magistrate Judge Stewart issued an order on the thorny issue of how to characterize some of the costs associated with a complex environmental cleanup.  Are they indemnity costs that deplete the insured's insurance policies, or are they defense costs, which do not?  The decision resolves yet more issues in the Siltronic litigation between Siltronic, a major player at the Portland Harbor Superfund Site, its primary layer carriers (principally Wausau), and excess carrier AIG.  Siltronic has had to perform some cleanup-type work and extensive studies and monitoring at its facilities, well in advance of any cleanup of the contaminated sediment in the Willamette River that is the focus of the site.

Under the Oregon Environmental Cleanup Assistance Act's 2003 amendments certain investigatory costs are presumptively deemed "defense" costs, whereas some types of remedial costs are presumptively deemed "indemnity" costs.  But environmental sites are notoriously complex and what seems like remediation to some can look like further investigation to others.  In Siltronic the company and its primary-layer carriers reached an agreement on an allocation of the costs in such a way that the primary policy was exhausted, meaning that the excess carrier (AIG) would be on the hook.  AIG challenged the allocation, arguing that the primary carrier had designated many costs as indemnity that should have been defense.

Judge Stewart's decision is quite nuanced and deserves a close read.  Overall, her approach was to go behind the labels applied by the agencies, vendors, or attorneys to look at what was actually going on when a particular cost was incurred and its purpose, to see whether the statutory presumptions had been overcome (or whether they applied at all).  This decision is something of a harbinger for what will likely be significant disputes between policyholders, their primary carriers, and excess carriers when the "big" remediation at the Portland Harbor begins in earnest.

In Case You Missed It - 2013 Wrap Up of Portland Harbor Coverage Cases

I am making an effort to get onto this blog every case of recent vintage touching on important coverage issues associated with the Portland Harbor Superfund Site (and there have been a lot of them).  Here's one from just before I started this blog last year - Siltronic Corp. v. Employers Ins. Co. of Wausau, 921 F. Supp. 2d 1099 (D. Or. 2013).  In this decision, Magistrate Judge Stewart (by consent of the parties) granted summary judgement in the insurer's favor on the issue of whether cleanup costs paid before there was a final agreement with DEQ/EPA on Siltronic's obligations exhausted the policy limits, thereby excusing any additional defense obligation.  Judge Stewart characterized Siltronic's argument as trying to add the term "final" to the exhaustion clause -- "exhaustion by payment of judgments or settlements" -- and rejected it, looking to Washington and Texas court decisions for guidance on what constitutes such payments in the environmental arena.  Somewhat ironically (given that this argument usually benefits the policyholder in a duty to defend dispute) Judge Stewart gave strong recognition to the somewhat unique structure of environmental "suits" as part of the decision.

'via Blog this'

Former Insurance Defense Counsel's Firm Permitted to Represent Insured Against Carrier

The Portland Harbor Superfund Site continues to generate new coverage-related law on issues beyond environmental contamination.  In a recent ruling from Oregon's federal court, Judge Acosta permitted Stoel Rives to substitute in as coverage counsel for steel company Evraz, Inc. in litigation between Evraz and many of its former carriers over coverage at the Superfund site.  The carriers, led by first named defendant Continental Insurance, contended that Stoel Rives had a conflict because at one point Continental was paying the firm to do the substantive environmental defense work for Evraz.  Continental claimed that under Oregon State Bar ethics opinions, that created a default "tripartite" relationship in which both Evraz and the insurance companies had been Stoel Rives' clients, meaning that there was a "prior client conflict" disqualifying Stoel Rives from prosecuting the coverage claim against Continental.  Judge Acosta held that no default status could be created by the ethics opinions because they have been held to be only "advisory."  The court went on to analyze the conflict issue under Oregon case law, and found that because Stoel Rives' environmental lawyers had not been retained initially by Continental, were not paid directly (but only indirectly) by Continental, and had gone to pains to advise Continental that they did not represent Continental during the prior work, there was no prior client conflict.