Category: Blog

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By David A. O’Neill

A recent decision by the Indiana Court of Appeals may have a profound effect on the ability of schools, churches and general contractors to rely on general liability insurance policies insuring them and their employees against sexual abuse or battery claims.

While insuring agreements in general liability insurance policies exclude coverage where the insured’s actions leading to bodily injury or property damage are “expected or intended by the insured,” the Separation of Insureds provision in these policies can allow for coverage for one of the insureds even where the other insured’s acts may not be covered.  The Indiana Court of Appeal issued its opinion in Holiday Hospitality Franchising, Inc. v. Amco Insurance Company on October 13, 20011, finding that Holiday Hospitality’s hiring or supervision of an employee who molested a business invitee constituted an occurrence under its general liability insurance policy even where the employee’s action was intentional. Continue reading “Indiana Court Finds Occurrence in Employer’s CGL Policy Even Where Bodily Injury Intended by Employee”

Written by Justin Gifford, General Counsel for PolicyFind

In Hinds Investments, L.P. v Team Enterprises, Inc., et al (2011 WL 3268027 (C.A.9 (Cal.))) (“Hinds I”), and Hinds Investments L.P. v Team Enterprises Inc. (2011 WL 3250461 C.A.9 (Cal.))) (Hinds II)Hinds Investments, L.P., a property owner pursued R.R. Street and Co. and others (“Street,” the manufacturer of a PCE filters & distillation units) in an attempt to prosecute a RCRA citizen suit for contributor liability and to attach CERCLA arranger liability for cleanup costs as an arranger/disposer of hazardous waste (used PCE). The original actions were brought in the eastern district of California where the District Court Judge granted Team’s motion for dismissal for the plaintiff’s failure to state a claim upon which relief could be granted.  District Judge O’Neill found that the various defendants’ manufacture and sale of the useful dry-cleaning equipment did not rise to the level of arranging for the disposal of the hazardous waste.  In both decisions, the Circuit Court’s decision was largely based upon the lack of an active role by the defendants in the disposal of the hazardous waste. Continue reading “Equipment Manufacturer Not Liable as Arranger of Hazardous Waste”

In Team Enterprises, LLC v. Western Investment Real Estate Trust, et al (2011 WL 3075759 (C.A.9 (Cal.))), Team Enterprises, LLC (“Team,” a dry cleaner) pursued R.R. Street and Co. (“Street,” the manufacturer of a PCE filter & still) in an attempt to get CERCLA contribution for cleanup costs as an arranger and disposer of hazardous waste (used PCE). The original action was brought in the eastern district of California where Judge O’Neill granted Street’s motion for summary judgment, finding that Street’s manufacture and sale of the useful dry-cleaning equipment did not rise to the level of arranging for the disposal of the hazardous waste and that Street’s facilitation of PCE delivery to Team did not make Street responsible for its ultimate disposal.

Following Judge O’Neill’s summary Judgment, Team appealed on several similar grounds, asserting that Street “took intentional steps” and “planned a disposal” of PCE, neither of which Circuit Judge O’Scannlain accepted, again referencing the useful product doctrine (the sale of useful products for legitimate business purposes is not the same as selling or arrange the transfer of hazardous waste, which no longer has a useful purpose and is likely done to avoid liability for disposing of hazardous waste). Judge O’Scannlain’s example clarifies the issue, “It would be odd, for example, to say that an auto parts store sells motor oil to car owners for the purpose of disposing of hazardous waste.” Without Team’s proving that Street’s sale of the Rescue 800 distiller was intended to result in Team’s disposal of the PCE, no liability could be attached under CERCLA. Continue reading “Ninth Circuit Upholds Manufacturer CERCLA Useful Product Defense”

By David A. O’Neill, Director of Investigations, PolicyFInd

The ruling of the United States District Court for the Northern District of Indiana’s March 16, 2011 on a motion for summary judgment from the Lake County Superior court case styled General Casualty Insurance v. Compton Construction, Inc. and Mary Ann Zubak could have profound effect on contractors’ need to locate and maintain their historical insurance policies.

A claim against a contractor for the negligent acts of its subcontractor some 7 years earlier was found to be covered under the contractor’s general liability insurance policy.  The allegations in this case were that defendant Mary Ann Zubak was damaged by the negligent acts of the subcontractor hired by general contractor, Compton Construction Co. to excavate and set the foundation for her new home. When the house shifted and buckled, Ms. Zubak brought a claim against Compton Construction, who tendered the claim to its general liability insurance company, General Casualty Insurance.  After General Casualty declined to defend Compton, Ms. Zubak filed suit in Superior Court against Compton, alleging negligence, breach of contract and breach of warranties. Continue reading “INDIANA CONSTRUCTION DEFECT COVERAGE LAW CHANGES WILL SEND CONTRACTORS IN SEARCH OF LOST GENERAL LIABILITY POLICIES”

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The California Supreme Court reviewed the Fourth District Court of Appeal’s decision in Ameron International Corp. v. Insurance Company of the State of Pennsylvania, 150 Cal Ap4th 1050, on November 18, 2010 and found grounds to distinguish this case from its ruling in Foster-Gardner v. National Union Fire Ins. Co., 18 Cal.4th 857, 959 P.2d 265 (1998). Continue reading “California Supreme Court Distinguishes Foster-Gardner Administrative Hearing Can Trigger Insurer’s Duty to Defend”

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Historically, the dry cleaner’s business insurance policy has been a package policy with more than one line of insurance in it. One of these lines is typically general liability insurance: the type of insurance that protects the business against liability from injuries to customers or to the property of others. The standard general liability coverage available to small business owners has for decades been commercial general liability coverage and is usually found in section two of the package policy. Continue reading “Whether Dry Cleaner’s Insurer Defends In Pollution Case Depends on His State Court’s Definition of “Suit””

Decision Adopts Vertical Exhaustion Theory, Clarifies Plastics Engineering

Early this month, the Wisconsin Court of Appeals District 1 affirmed a trial court’s ruling that vertical exhaustion was the appropriate theory to apply in progressive injury cases and elaborated upon the Wisconsin Supreme Court’s 2009 holding in Plastics Engineering Co. V. Liberty Mutual Insurance Co.[ii] that Wisconsin is an “all sums” allocation state. Continue reading “Westport Insurance Corporation v. Appleton Papers, Inc Westport Insurance Corporation v. Appleton Papers, Inc. [i]”