Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau
Citation: 30 ELR 20457
No. No. 98-2456, 725 N.E.2d 646/(Ohio, 04/05/2000)
The court upholds the dismissal of an aluminum corporation's suit seeking liability coverage from insurers for remediation costs due to cyanide contamination of groundwater at its Hannibal, Ohio, plant because of the corporation's untimely notice to its insurers. The court first holds that the trial and appellate courts properly concluded that the corporation's notice to both its primary and excess insurers was unreasonable as a matter of law. The insurance policies at issue required the corporations to inform the insurers as soon as practicable of any accidents, occurrences, or claims that would trigger coverage under the policy. A notice provision requiring notice to the insurer as soon as practicable requires notices within a reasonable time in light of the surrounding facts and circumstances. Here, the corporation knew in 1976 that it was liable for the groundwater contamination, but it did not send its first notice of potential claims to its insurers until 1992. The court also holds that reasonable minds could only conclude that the insurers suffered actual prejudice from the delay in notice. At least 10 potential witnesses relevant to the litigation are dead, memories of the events have faded over time, documents and other evidence may have been lost or destroyed, and the physical conditions of the site have changed. Moreover, the insurers have been left with decisions made by the corporation that may not be in either the corporation's or the insurers' best interest.
A dissenting judge would hold that the case demands a jury's determination as to whether notice was timely and whether the insurers were prejudiced by the delay.
The full text of this opinion is available from ELR (28 pp., ELR Order No. L-202).
Counsel for Appellant
Richard A. Yoss
Yoss & Hampton
122 N. Main St., Woodsfield OH 43793
Charles E. Bachman
O'Sullivan, Graev & Karabell
30 Rockefeller Plaza, 41st Fl., New York NY 10112
Counsel for Appellees
Stanley G. Burech
Burech & Crow
121 Newell Ave., St. Clairsville OH 43950
Clifford C. Masch
Reminger & Reminger
113 St. Clair Ave. NE, Cleveland OH 44114