August 10, 2012
Yesterday the California Supreme Court issued its long-awaited decision in State of California v. Continental Insurance, No. S170560. In its latest ruling, which will affect all long-tail insurance cases, including Environmental, Asbestos and latent injury, and Construction Defect cases, the Court rejected the "pro rata" time on the risk allocation scheme advocated by the insurers and held:
- For indemnity relating to "long tail" claims1, the "all sums" language in the Comprehensive General Liability (CGL) policies obligates a carrier to indemnify up to the policy limits, so long as some portion of the "property damage" that is the subject of the suit occurred during the policy period; and
- The insured is entitled to "stack" the limits of successive policies up to the policy limits for indemnity relative to that loss.
The case arose out of the State of California's claim for indemnity under its excess Comprehensive General Liability policies in connection with a federal court-ordered cleanup of the State's Stringfellow Acid Pits waste site. The State designed the Stringfellow site, and operated it as an industrial waste disposal facility from 1956 to 1972, when groundwater contamination was discovered. In 1998, a federal court found the State liable for all past and future cleanup costs for the site. Each of the six insurers that were parties to the appeal issued excess Comprehensive General Liability policies to the State between 1964 and 1976.
The Stringfellow site, and the resulting insurance litigation, has given rise to several insurance rulings already, including Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645 — adopting the continuous injury trigger for defense, and State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008 — holding that the relevant event to determine if there is an "occurrence" is the discharge into the environment from a contained area, and that where there is an indivisible injury, the insured is not obligated to prove the amount of any property damage resulting from any discrete cause.
There are several critical aspects of the Court's decision.
First, there was no dispute that the environmental damage began shortly after the operation of Stringfellow began, and that it continued throughout the defendant insurers' policy periods and beyond. According to the opinion, the site was uninsured prior to 1963, and after 1978. The issue, therefore, was whether the State of California could be allocated partial responsibility for the cleanup costs for the amount of property damage occurring in years where it was self insured. This fact pattern — where there is insurance for some but not all of the affected years — is common in "long tail" or "progressive loss" type cases. A carrier with only one year of coverage could potentially be responsible for all damages regardless of the length of time over which the property damage occurred.