Old insurance policies : An often unrecognized source of pollution liability insurance

Many, if not most, of today's pollution liability claims are related to events ("occurrences") that happened in the past. This fact creates an opportunity to obtain a large amount of insurance coverage at essentially no cost. Furthermore, in many cases, this insurance coverage is readily available. Scenario #1 For some 15 years, an underground gas tank has had a slow leak. The leak has now been discovered because the gas has contaminated nearby wells. As a result, an expensive $1 million cleanup is required. In addition, a liability suit has been filed for damages due to the contamination of nearby wells. Consequently, legal expenses are being incurred. Are all of these actual and potential costs insured? Obviously, if you have a pollution liability policy in place, the above costs will probably be insured. I say probably because business liability policies are not uniform. But, what if you don't have a pollution liability policy and what if your current general liability policy excludes all pollution liability (as most of them do today)? Under these circumstances, it first appears there is no insurance for this $1 million cleanup and liability suit. But this is probably not the case. You may well have insurance coverage, and you may well have much more insurance coverage than you ever expected. And, the insurance that I'm referring to is already in place. You simply need to find it and learn how to use this insurance - I'm referring to your old policies. In many cases, old liability insurance policies provide coverage for claims made today, because these policies were written on an "occurrence" basis of coverage. In fact, most still are written this way. This means that the insurance policy covers bodily injury or property damage liabilities (as defined in the policy) arising out of' "occurrences" or accidents that happen during the policy period regardless of' when the claim for damages is made. Therefore, for insurance purposes, the key question is: when did the "occurrence" take place? If someone falls and breaks a leg, that is clearly an "occurrence." The broken leg occurrence is, therefore, insured by the liability policy that was in existence at the time of the fall - regardless of when the claim or suit is filed, if ever. However, the answer to this question is seldom an easy one when you are looking at a pollution claim. In our scenario, the tank had a slow leak over 15 years, but property damage was not discovered until now. The question of when the "occurrence" (as defined in the insurance policy) took place has been litigated and continues to be litigated in many courts across the country. But, most often the answer has been that, for insurance purposes, the "occurrence" is the entire period that the tank was leaking (15 years), even though the contamination to the water was not discovered until 1987. This means that the person or company that is insured can potentially use all of its general liability policies (if they are "occurrence" policies, and most were), which were purchased during the 15 years from 1972 until 1987. And, these policies will potentially insure all of the claims and related exposures that arise out of this leaky underground gas tank. Scenario #2 In our first scenario, the claims and expenses were insured by past general liability policies because the claims arose out of events in the past, which, in turn, caused damage. Let's look at another example. In this scenario, Company XYZ has received a request to help clean up a landfill site because 10 years ago, XYZ dumped some toxic substances at the site, which was totally legal at the time. XYZ has not dumped anything at the site since this time. Nevertheless, XYZ is now being required to contribute $2 million to the cleanup of this site. In this scenario, if you had purchased "occurrence" general liability policies 10 years ago, these 1977 policies would (potentially) apply to the current $2 million cleanup claim. And, the reason is that the "occurrence" leading to the 1987 claim took place in 1977.