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COA: Insurers have no duty to defend in environmental case

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The Indiana Court of Appeals reversed the decision by an Indiana court relying on Maryland law that granted summary judgment and defense costs to a business whose product led to perchlorate contamination in California and Indiana.

Perchlorate had been discovered in water samples in California and Peru, Ind., where Standard Fusee Corp. had facilities. The company makes highway and marine signal/safety flares, in which an essential ingredient is perchlorate. Standard Fusee notified its comprehensive general liability insurance carriers, including Chubb Custom Insurance Co. and GAN North American Insurance Co., about the claims at the facilities and sought defense and indemnification. Both insurers rejected their duty to defend and refused indemnification based on pollution exclusions.

The trial court, relying on Maryland law because that is where Standard Fusee is headquartered, ruled in favor of the company and awarded more than $2 million in defense costs. The judge held that the total pollution exclusion clause in the policies is not applicable to Standard Fusee’s liability for the release of the contaminate, thereby triggering the duty to defend and indemnify.

In Chubb Custom Insurance Company, et al. v. Standard Fusee Corporation, 49A02-1301-PL-91, the insurers claim that if the release of perchlorate is defined as traditional environmental pollution, Maryland law enforces the application of the pollution exclusion clause in the insurance contract and coverage is precluded.

Guided by the principles of Maryland’s contract interpretation, the Court of Appeals concluded that perchlorate is included within the usual, accepted meaning of “pollutant.” Judge Patricia Riley noted the continuous discharge of perchlorate over multiple years went beyond the routine commercial hazard of an occasional spill.

“Based on the facts before us, we conclude that Standard Fusee’s claim is based on a hazardous pollution contamination, resulting from the cumulative effect of numerous releases which occurred on an ongoing basis during the regular course of business over an extended period of time, up to the point where the pollution became concomitant to Standard Fusee’s regular business activity,” she wrote.

“We expect that, our decision notwithstanding, interpretation of the scope of pollution exclusion clauses likely will continue to be ardently litigated throughout state and federal courts. We are also aware that courts may arrive at divergent decisions from our own within the specific context of perchlorate contamination. Yet, guided by Maryland’s rules for interpreting insurance contracts, we conclude that the total pollution exclusion clause applies and relieves Appellants of their duty to defend and indemnify the Standard Fusee in the underlying action,” she wrote.
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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