Utilizing historic CGL insurance policies to defend PFAS claims

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Research have proven that top ranges of PFAS can result in elevated threat of most cancers, modifications in liver enzymes, and decreased vaccine response, amongst different well being results. Anybody uncovered to PFAS could have trigger to pursue litigation, particularly if they will show that publicity brought about bodily harm.

Most PFAS claims will possible contain normal legal responsibility insurance policies, which offer insurance coverage protection for claims due to bodily harm and/or property harm to 3rd events. Nevertheless, 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 an alternative, companies can look to their historic CGL insurance policies (if they’ve entry to them) – that 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 harm attributable to an ‘incidence’ – on this case, PFAS publicity – that means they are going to cowl any incidents that occur through 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 follow, believes there’s sufficient info out there for plaintiffs to carry instances, 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 “most likely 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 Let’s say a claimant finds one in every of these outdated CGL insurance policies [and they want to use it in defense of a claim alleging historical PFAS exposure].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 I feel the reply to that’s ‘no’ as a result of these outdated CGL insurance policies usually have a separate obligation to defend the policyholder,” defined Roje.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 harm 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 capable of show they haven’t any legal responsibility, the insurance coverage firm nonetheless has to defend them via that course of. And as anybody who has handled long-tail environmental claims will attest to, they’re usually extraordinarily costly to defend, so having a robust protection is essential.”

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

One mitigating issue within the litigation threat is the ever present nature of PFAS chemical substances. Whereas it is likely to be attainable 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 harm.

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

Nevertheless, the plaintiffs’ bar has a knack for creativity. Because the litigation panorama round PFAS has developed, Roje has seen an increasing number of “inventive arguments” from the plaintiffs’ bar across the science referring to the exposures. “They [the plaintiff attorneys] will all the time discover a approach,” she warned.

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