February Chapter Meeting

Tue, 04/09/2019 - 12:11
by Michael Hickey


Introduction: Carrie Tasker Miller

  • NH Food Bank collection announcement

  • CPCU CE credits available for attendees

  • Upcoming meetings:

    • March 26 – Joint meeting w/ Maine CPCU chapter in Seacoast (Speaker – Todd Jordan, Risk Manager of Transocean)

    • April 5 – NHAIA education day (AM – Insuring wills & trusts; PM – Ethics & insurance fraud epidemic). CE & Ethics credits available

    • May 21 – NH Insurance Commissioner breakfast @ Courtyard Marriott in Concord

    • June (Dates TBD) – CPCU Candidate breakfast w/ Mike Lincoln from The Institutes (Seacoast area & Manchester/Bedford area locations)

Induction of new chapter Secretary Michael Hickey (Liberty Mutual Insurance)

Announcements: Andrea Gately

  • NH CPCU Chapter earned Gold Circle of Excellence for 2018

Presentation: Pollution Liability – Kate Vaughn (The Riverstone Group)

  • Pollution claims are often long-tailed, latent claims

  • Coverage: primarily filed against commercial general liability policies issued before 1986

    • Newer policies have absolute pollution exclusions

  • Environmental Protection Agency installed in 1970 by President Nixon

    • Handles the nation’s largest sites (harbors, rivers, large industrial sites)

    • EPA lists 13K sites under its jurisdiction, NH EPA has about 22K (shows that most sites are under state jurisdiction)

    • NH has 22 of the 13K superfund sites listed by EPA

  • CERCLA (Comprehensive Environmental Response, Communication, and Liability Act) aka Superfund – passed in 1980 in response to alarming hazardous waste practices of the 1970s

    • Gave EPA ability to enforce cleanup of sites

    • Goal is to clean the environment without the government (i.e. the public) paying for it

    • The potentially responsible parties are exclusively liable

  • EPA sends letter to site in question to obtain consent for cleanup; if denied, they can order cleanup (Strict Liability clause underscores that EPA doesn’t need consent)

  • States statutes generally mirror those of CERCLA and state agencies generally emulate EPA’s approach

    • States handle relatively smaller, lower-level sites and incidents

    • State law requires landowners to report known contamination

  • Claim triggers

    • Property transfer

    • Ongoing routine operations

    • Accidental event

    • Voluntary cleanup

    • Facility closure

    • < >

      Regulatory agency action

      • Depending on where the policy is written and where the pollution occurs, a choice of which jurisdiction’s laws might take place

  • Question over which policy provides coverage upon a claim trigger

    • Exposure – policy in force when waste is released

    • Manifestation – policy in force when waste is discovered

    • Injury-in-fact – policy in force when there is factual proof of an injury

    • Continuous – policy(ies) in force when pollution happens over an established period of time

  • Duty to Defend?

    • Policy is primary vs excess

    • Is there a lawsuit? (usually a Duty to Defend insured in a lawsuit)

    • Administrative order

    • Voluntary remediation

  • < >

    Prior to 1985-1986, pollution must be “sudden and accidental”

  • Broad form exclusions may not be enforced in some states

  • Natural Resource Damages

    • Legislative Authority: CERCLA, Clean Water Act, Oil Pollution Act

      • These establish that Fed. Gov’t, states, and Native American tribes are trustees of natural resources

    • NRDs seek reimbursement for damages to ecological quality or loss of human use resources

    • NRDs only apply to public lands, waterways, or groundwater

      • State of MN reached $750M settlement w/ 3M over PFOA contamination of natural resources

    • States may begin to pursue these more often for additional revenue

  • Emerging Issues in Pollution

    • Climate change lawsuits being brought against the fossil fuel industry (14 cases in CA, WA, and NY)

    • PFC (perfluorinated compound)

      • Water/stain resistant products

      • DuPont, 3M, Gore Technologies, etc.

      • Resistant to natural degradation, yet highly soluble

      • Is it property damage or product liability?

    • < >

      Carcinogen claims made against Monsanto

Q & A with Kate Vaughn

Meeting Adjourned 




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