Federal Circuit Court Insurance Decisions Contaminate Superfund Policy

September 1989
Citation:
19
ELR 10393
Issue
9
Author
Peter E. Hapke

Editors' Summary: As Superfund litigation proliferates and cleanup costs soar, the extent to which comprehensive general liability (CGL) policies cover the liability of PRPs for response costs incurred in the cleanup of hazardous waste becomes increasingly crucial. Both state and federal courts typically regard this question as one to be decided under state insurance law, and many courts deny coverage based on their interpretations of policy terms such as "occurrence," "damages," and "property damage." Over the last few years several of these cases have been decided by federal courts of appeal, which have largely opted to interpret such contract terms narrowly and to hold that response costs are not covered by CGL policies. The author examines these federal appellate decisions, criticizing them for their failure to recognize CERCLA's national goals of prompt and adequate reimbursement of hazardous waste response costs. The author argues that the courts, rather than creating a patchwork quilt of inconsistent law across the country, should look to CERCLA's purposes and craft a federal common law that provides insurance coverage under CGL policies for CERCLA response costs.

Peter E. Hapke is an associate at Hart, Bruner & O'Brien in Minneapolis, Minnesota.

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Federal Circuit Court Insurance Decisions Contaminate Superfund Policy

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