Written by David O’Neill, JD, Director of Investigations, PolicyFind
EnviroForensics and PolicyFind typically work on behalf of businesses required to respond to demands made by governmental entities, or property owners claiming damage to the environment occasioned by their business practices. We assist these businesses by locating historical insurance policies purchased by the companies identified or named as responsible parties.
This June, a Louisiana law firm representing mesothelioma victim employees of a bankrupt company sought PolicyFind’s help in locating their employer’s historical insurance coverage. If the insurers and their policies could be identified, the employees wished to make bodily injury claims against their former employer’s insurers under Louisiana’s direct action statute. To do so they needed to find the policies and prove the terms, conditions and exclusions of these policies
A record request might have been made to the employer, but the employer no longer existed. The bankruptcy had run its course thirty years ago and the company had gone out of business. Its officers were retired and/or deceased and its records had been destroyed. A records request might be made to the insurers but which ones? And about what policies?
The employees’ exposure to asbestos had occurred in the 1950’s and 1960’s while engaged in large governmental projects. PolicyFind was successful in locating three banker boxes full of historical records. The potential contents of these boxes were identified as proofs of insurance from the company’s insurers dating back to the 1950’s, 1960’s, and 1970’s. The information included certificates of insurance, policies, endorsements and correspondence sent to the government by the employer’s insurance companies.
PolicyFind’s excitement at locating this potential treasure trove soon dissolved however. The government archive’s legal counsel balked at the release of these records to anyone other than the parties to the insurance contracts. According to the archive’s council, only the employer and its insurer had the required privity to acquire these insurance documents from the archive. Of course these parties were no longer around. The employees had not been parties to the insurance contracts and therefore were not entitled to copies of the documents related to them.
It was decided that reaching out to the U.S. Bankruptcy trustee who had handled the bankruptcy to completion was a possible course to obtain access to the documents. Some thirty years after the fact, the bankruptcy trustee was luckily still serving in this capacity. He would be happy to draft a letter identifying PolicyFind as an approved recipient of these insurance documents he said. His letter was forwarded to the government’s counsel, who determined that the insurance records could be released to PolicyFind after all.
And what records they were. Nearly seven hundred pages of insurance documents were released dating back to 1955 and forward to 1982. Some ten general liability insurance policies with no asbestos exclusions and some with no aggregate limit were among the files released. These policies specified that bankruptcy would not defeat coverage.