Pollution Exclusion
California Appellate Court Finds No Prejudice Required for Enforcement of a Specially Negotiated Pollution Notice Requirement PDF Print
Pollution Exclusion
Written by Robert Binion   
Wednesday, 08 July 2009 07:38

In Venoco, Inc. v. Gulf Underwriters Insurance Co., 2009 WL 1875640 (Cal. Ct. App. July 1, 2009), a California appellate court held that a provision in a liability policy requiring notice within 60 days of discovery of a pollution event is enforceable against a policyholder regardless of whether prejudice resulted because the requirement was part of a provision negotiated by the policyholder that expanded coverage beyond the terms of the pre-printed policy form. 

Attachments:
 Venoco.pdf[ ]77 Kb
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Absolute Pollution Exclusion Applies to Claims for Chemical Discharge says CA Court PDF Print
Pollution Exclusion
Written by CBM   
Tuesday, 29 January 2008 16:07

In American Casualty Co. of Reading, PA v. Miller, 08 C.D.O.D. 1352 (Cal. Ct. App., Jan 29, 2008), the California Court of Appeal upheld an absolute pollution exclusion and found that an insurer had no duty to defend a policyholder for claims arising out of the discharge of the chemical solvent into a city sewer system.  In doing so, the appeallate court narrowly appliued the California Supreme Court holding in MacKinnon v. Truck Ins. Exchange, 31 Cal.4th 635 (2003).

This decision displays that California appeallate courts remain willing to distinguish MacKinnion's holdings to uphold the absolute pollution exclusion.  Two prior cases were noted by this decision, which also barred coverage based on the absolute pollution exclusion, Garamendi v. Golden Eagle, 127 Cal.App.4th (2005) and Ortega Rock Quarry v. Golden Eagle, 141 Cal.App.4th 969 (2006).

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9th Cir. Finds Policy Does Not Cover Dimunition in Value Claims PDF Print
Pollution Exclusion
Written by CBM   
Monday, 03 December 2007 17:00

In Goodstein v. Continental Casualty Company, No. 07 C.D.O.S. 13680 (December 3, 2007), the Ninth Circuit Court of Appeals affirmed the district court’s holding that a liability policy did not cover a pollution-related claim because it amounted to a claim for diminution in value from the sale of contaminated properties.  But, the appeal court found there was a duty to defend the Washington DOE claim prior to the sale of the land because there was a potential for coverage.

The decision prevents an policyholder from receiving compensation for loss in property value where it has taken no action to ensure remediation of the property, but requires an insurer to defend for any potentially covered claims. 

Attachments:
 Goodstein v. Continental[ ]135 Kb
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No coverage for odors under pollution exclusion PDF Print
Pollution Exclusion
Written by CBM   
Tuesday, 20 November 2007 17:00

In Cold Creek Compost, Inc. v. State Farm Fire & Casualty Company, No. A114623, 07 C.D.O.S. 13252 (November 20, 2007), a California Court of Appeals found the pollution exclusion to bar coverage for liability for bodily injury and property damage from odors and dust emanating from a compost facility that rise to a nuisance.   The court further found no bad faith where the insurer relied upon the advice of coverage counsel in the face of a legitimate coverage dispute under the law at that time. 

This decision extends the application of the pollution exclusion in California beyond “tradition environmental pollution” to include irritants that rise to the level of a nuisance and are recognized as pollutants under case law and state codes.  Further, the decision affirms a carrier’s right to deny defense and indemnity where there is a legitimate coverage dispute and reliance upon the advice of coverage counsel.  
Attachments:
 Cold Creek v. State Farm[ ]60 Kb
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