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Utilizing historic CGL insurance policies to defend PFAS claims


Research have proven that prime ranges of PFAS can result in elevated danger of most cancers, adjustments in liver enzymes, and decreased vaccine response, amongst different well being results. Anybody uncovered to PFAS might have trigger to pursue litigation, particularly if they will show that publicity triggered bodily harm.

Most PFAS claims will seemingly contain normal legal responsibility insurance policies, which give insurance coverage protection for claims due to bodily harm and/or property injury to 3rd events. Nonetheless, most present business normal legal responsibility (CGL) insurance coverage insurance policies don’t present protection for PFAS claims due to air pollution or PFAS-specific exclusions.

As a substitute, companies can look to their historic CGL insurance policies (if they’ve entry to them) – which means these issued earlier than the broad type air pollution exclusion was launched within the mid-Eighties – to see if they’ve protection. Most historic CGL insurance policies cowl bodily harm or property injury brought on by an ‘prevalence’ – on this case, PFAS publicity – which means they’ll cowl any incidents that occur throughout the coverage interval, no matter when a declare is reported.

Learn subsequent: The litigation panorama round PFAS is heating up

The burden of proof is difficult the additional again these claims go, however Alex Roje, companion in Lathrop GPM’s Insurance coverage Restoration observe, believes there’s sufficient data out there for plaintiffs to deliver circumstances, and for companies (and their insurers) to defend allegations. She mentioned there’s going to be a paper path as to how and the place PFAS chemical substances have been used, and whether or not they contaminated water sources, such that it’s “in all probability not a surmountable problem for plaintiffs” to show publicity. 

“What in regards to the burden of proof with the insurance coverage firm? Let’s say a claimant finds certainly one of these outdated CGL insurance policies [and they want to use it in defense of a claim alleging historical PFAS exposure]. Is the insurance coverage firm going to take the place that the declare can’t be confirmed? I feel the reply to that’s ‘no’ as a result of these outdated CGL insurance policies usually have a separate obligation to defend the policyholder,” defined Roje.

“These insurance policies require the insurance coverage firm to take up the protection of the policyholder in any claims the place there’s a potential for property injury or bodily harm. It’s the potential for protection that actually triggers the protection obligation. Even when it seems the claimant has a full protection and so they’re in a position to show they haven’t any legal responsibility, the insurance coverage firm nonetheless has to defend them by way of that course of. And as anybody who has handled long-tail environmental claims will attest to, they’re typically extraordinarily costly to defend, so having a powerful protection is essential.”

Learn extra: Tackling the rising tide of environmental insurance coverage dangers

One mitigating issue within the litigation danger is the ever present nature of PFAS chemical substances. Whereas it is likely to be doable for plaintiffs to show they have been uncovered to PFAS 60-years-ago, it’s not really easy to show the connection between that publicity and subsequent bodily harm or property injury.

“From the plaintiff standpoint, even when they may show their illness was a results of publicity to PFAS, they’d then should show a hyperlink between that publicity and the actual defendant, which is tough contemplating the truth that PFAS is in every single place,” mentioned Roje.

Nonetheless, the plaintiffs’ bar has a knack for creativity. Because the litigation panorama round PFAS has advanced, Roje has seen increasingly more “artistic arguments” from the plaintiffs’ bar across the science regarding the exposures. “They [the plaintiff attorneys] will at all times discover a method,” she warned.

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