Author: David ONeill

The New Jersey Appellate Division ruled recently in Myron Corp. v. Atlantic Mutual Ins. Corp that N.J. Rule of General Application 4:42-9(a)(6) provides for the award of counsel fees even if the court action takes place in a state outside of New Jersey. In an apparent effort to discourage forum shopping, the Appellate court’s ruling was made in a case where a policyholder sought to recover attorney’s fees and court costs from defending against its insurance company’s two out-of-state declaratory judgment actions. Continue reading “NJ Court Awards Policyholder Counsel Fees for Dec Action Brought Elsewhere”

Those west coast policyholders whose historical primary insurance carriers have since become insolvent may wish to take notice of a recent Ninth Circuit U.S. Circuit Court of Appeals decision styled California Ins. Co. v. Stimson Lumber Co., 2009 WL 1035238 (9th Cir. (Oregon) April 16, 2009). In Stimson, the appellate court was called on to reconsider district court rulings concerning how defense costs would be allocated in a situation where the policyholder’s primary insurer had become insolvent, but an umbrella policy had been purchased to overlay the risk for that particular policy period. Continue reading “Horizontal Allocation is Ninth Circuit Choice in Insolvent Gap Case; But Insured Not Required to Pay Share of Costs”

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After a couple decades as an insurance archeologist, I find that my business clients too often take their commercial general liability insurance policies at face value. The word has been out for some time that old business insurance policies are valuable, but as to their actual value, it is best not to trust your own eyes. Continue reading “Pollution Exclusions: Some Reasons Not to Believe Your Own Eyes”

The Supreme Court of Indiana ruled in a unanimous decision on April 28, 2009 that an insurer had no duty to defend where its policyholder did not comply with the policy’s notice provision. Where the notice provision had required the insured to “Tell us or our agent what happened as soon as possible,” and yet the insured had waited three and a half years to notice its insurer of environmental damage claims against it, the court found that no duty to defend under the policy existed. Continue reading “Indiana Supreme Court rules Late Notice Can Be Fatal”

It was the late 1980s and the United States Environmental Protection Agency (“USEPA”) was conducting Potentially Responsible Party (“PRP”) Searches at landfills throughout the United States. The Superfund had been recently created and there was money to fund this investigative effort so that large corporate “polluters” could be identified and advised of their liability for the property damage their release of pollutants had caused.  Springing up alongside the USEPA’s efforts were the efforts of defense attorneys to enter the administrative law arena to defend their clients against allegations that they either generated or transported pollutants that were released to a waste site or that they owned or operated a site at which pollutants had been released. Continue reading “Small Is A Better Fit: The New Age of Insurance Archeology”

Doing insurance archeology for fifteen years, I have noticed that a good percentage of our clients don’t understand why the insurance companies just won’t reveal their policy histories when asked. I usually remark that if the insurers just volunteered insurance information, guys like me would not have jobs. However, I also am usually asked two related questoins: (1) “Does the insurance company have a duty to disclose coverage?” and (2) “Since insurers keep old policy files, why don’t they voluntarily do policy searches for their insureds?” Continue reading ““It’s my Policy and I want it Now””

The business owner was defending against claims by the state environmental authorities that his operations contaminated the groundwater beneath his former plant site with chlorinated solvents over a period of twenty years in business. His attorney explained that the business owner would have to comply with the states requirements and hire an environmental engineer to investigate and possibly remediate the environmental property damage.  He estimated the cost of these services in his state at approximately $300,000. The attorney suggested to him that his old business insurance policies might provide coverage for the damages and even apply to the attorney’s fees. Continue reading “It Doesn’t Always Take a Policy to Prove Coverage”

The California Supreme Court has made an important ruling that is expected to benefit those dry cleaners, manufacturers, suppliers or others who purchased general liability policies in years past and are faced with property damage or bodily injury claims from the release of pollutants into the environment. In its decision in State v. Allstate Ins. Co., Case No. S149988 (Cal. Sup. Ct., March 9, 2009), the Court ruled that where multiple acts or events cause indivisible damage and at least one such act is a covered event, the insurer must provide coverage for the entire amount of damages. Continue reading “Big Win for California Policyholders”

If you are a company besieged by property damage or product liability claims, you will want to take note of the following: Your old general liability insurance can protect you. But you don’t have your old policies, you say? And your insurance agent has not kept old records?

Consider hiring an insurance archeologist. The insurance archeologist will conduct a search to determine what policies you had back when the damage was happening that provided general liability coverage. Most of these old policies were written to protect against the kinds of perils you now face years later. And they can protect you today in the right circumstances. Continue reading “Specimen Insurance Policies”

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Wisconsin dry cleaners and their attorneys will want to take note of the recent decision by the Supreme Court of Wisconsin in Plastics Engineering Company v. Liberty Mutual Insurance Company and contact their local insurance archeologist to find their historical business insurance policies. As of January 29, 2009, the potential value of those old business insurance policies to pay for environmental clean ups has greatly increased.

The Supreme Court declared that the all sums method of allocating policy limitswillnow be the law in Wisconsin.The Court ruled that once the policy is triggered, the insurer must fully defend the lawsuit in its entirety and pay all sums up to the policy’s limits. Rejected was the time on the risk policy limit allocation method preferred by Wisconsin courts until now. Time on the risk had limited the value of any single policy to the percentage of the total damages occurring during that policy’s period of effectiveness. Continue reading “New Court Ruling Helps Wisconsin Dry Cleaners”