As part of the year in review series, insurance expert Barry Zalma identifies his three most significant insurance law cases of 2012. Here is his first choice:
Case 1: California Allows Stacking of Commercial General Liability:
A Case of First Impression and Importance
The state of California has been ordered by a federal court to clean up the pollution caused by the construction and use of the Stringfellow Acid Pits in Riverside County, California at an anticipated cost to the state of as much as $700 million. To fulfill its obligation the state needed as much money as it could squeeze from its insurers.
The Stringfellow site was an industrial waste disposal facility that the state designed and operated from 1956 to 1972. Each insurer that is party to this appeal issued one or more excess commercial general liability (CGL) insurance policies to the state between 1964 and 1976. The site was uninsured before 1963, and after 1978.
In 1955, a state geologist determined that a Riverside County quarry was a suitable location for the disposal of industrial waste. The geologist advised the state to build a concrete barrier dam to close a 250-foot gap in the canyon’s natural walls. He claimed that, once the dam was in place, “the operation of the site for industrial wastes [would] not constitute a threat of pollution.” The state subsequently developed the facility, which went into operation in 1956, and eventually received more than 30 million gallons of industrial waste.
In reality, the site suffered from three major flaws that made it ill-suited to serve as an industrial waste facility. First, the state geologist had failed to identify an underground aquifer located 70 feet below the canyon floor that facilitated the movement of groundwater into and out of the site. Second, the rock underlying the canyon floor was fractured, so it allowed waste to leak into the groundwater system and escape the facility. Third, the barrier dam proved ineffective. It permitted contaminants to escape the facility during heavy rains in 1969 and again in 1978. The severity of the latter event forced the state to conduct a “controlled discharge” of contaminants into Pyrite Channel. The ensuing plume of waste extended for miles. The state closed the facility in 1972 after discovering the groundwater contamination.
In 1998, a federal court found the state liable for, inter alia, negligence in investigating, choosing, and designing the site, overseeing its construction, failing to correct conditions there and delaying its remediation. The state was held liable for all past and future clean up costs. The state claims costs associated with the Stringfellow site remediation could reach $700 million. The state filed an action against several of its insurers in September 1993, seeking indemnification for its liability in the federal action. That case was finally resolved by the August 9, 2012 decision of the Supreme Court.
The State Sues Its Insurers
The state’s suit was tried in multiple phases and all parties stipulated that the property damage that the Stringfellow site’s selection, design, and construction caused took place continuously throughout the defendant insurers’ multiple consecutive policy periods from 1964 to 1976.
In May 2005, a jury in phase three of the trial rendered special verdicts finding the insurers had breached their policies. The Court of Appeal, like the trial court, rejected the insurers’ contention that they could not be liable for property damage occurring outside their respective policy periods. It held that once coverage was triggered, all of the insurers had to indemnify the insured for the loss. The Court of Appeal allowed the state to stack the total policy limits in effect for any one policy period.
The kind of property damage associated with the Stringfellow site, often termed a “long-tail” injury, is characterized as a series of indivisible injuries attributable to continuing events without a single unambiguous “cause.” Long-tail injuries produce progressive damage that takes place slowly over years or even decades. It is often “virtually impossible” for an insured to prove what specific damage occurred during each of the multiple consecutive policy periods in a progressive property damage case. CGL policies leave unanswered the crucial question for long-tail injuries: when does a continuous condition become an ‘occurrence’ for the purposes of triggering insurance coverage?
While the term “trigger of coverage” does not appear in the language of the CGL insurance policies here, it is a term of convenience used to describe that which, under the specific terms of an insurance policy, must happen in the policy period in order for the potential of coverage to arise. The issue is largely one of timing – what must take place within the policy’s effective dates for the potential of coverage to be triggered?
Damage that is continuous or progressively deteriorating throughout several policy periods is potentially covered by all policies in effect during those periods. As long as the property is insured at some point during the continuing damage period, the insurers’ indemnity obligations persist until the loss is complete, or terminates. Neither the state nor the insurers dispute that progressive damage to property at the Stringfellow site “occurred” during numerous policy periods. In addition, the insurers concede that in cases such as this it is impossible to prove precisely what property damage occurred during any specific policy period. The Supreme Court concluded that the fact that all policies were covering the risk at some point during the property loss is enough to trigger the insurers’ indemnity obligation.
The Supreme Court decided that the policies obligate the insurers to pay all sums for property damage attributable to the Stringfellow site, up to their policy limits, if applicable, as long as some of the continuous property damage occurred while each policy was “on the loss.” The coverage extends to the entirety of the ensuing damage or injury and best reflects the insurers’ indemnity obligation under the respective policies, the insured’s expectations, and the true character of the damages that flow from a long-tail injury.
The Court of Appeal allowed the insured to stack the consecutive policies and recover up to the policy limits of the multiple plans. “Stacking” generally refers to the stacking of policy limits across multiple policy periods that were on a particular risk. The Supreme Court found that an all-sums-with-stacking rule has numerous advantages. “It resolves the question of insurance coverage as equitably as possible, given the immeasurable aspects of a long-tail injury. The most significant caveat to all-sums-with-stacking indemnity allocation is that it contemplates that an insurer may avoid stacking by specifically including an “antistacking” provision in its policy. The decision means, simply, that each insurer on the risk must pay its limits for each policy year it had a policy in effect.
This decision teaches insurers that the wording of the Commercial General Liability policy needs rewording to protect against “stacking” and to protect against long tail losses or find, when an insured pollutes, it will probably be paying its policy limits for every year the policy is in effect.
The case also illustrates the importance of effective underwriting. If each insurer required a complete application from the state before agreeing to insure it, it should have learned of the existence of problems at the Stringfellow Acid pits. An intelligent underwriter with that knowledge would have refused to insure the risk or would have specifically excluded losses resulting from the Stringfellow Acid Pits.
The state of California knew or should have known, sometime between 1959 and 1972 that the Stringfellow pits were leaking and polluting the land and water of Riverside County. If it did not disclose that knowledge to its insurers, it concealed a material fact that might have been sufficient grounds to rescind the policies. Any policy issued to the state after it knew of the pollution should have been void from inception.
About the Author
Barry Zalma, Esq., CFE, has practiced law in California for more than 40 years as an insurance coverage and claims handling lawyer. He also serves as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and is the author of Insurance Claims: A Comprehensive Guide, Mold: A Comprehensive Claims Guide, and Construction Defects: Litigation and Claims.