Insurance Coverage for Superfund Liability Defense and Cleanup Costs: The Need for a Nonlitigation Approach

Leslie Cheek III, David Graham, and Karen Wardzinski

Mr. Cheek is Senior Vice President — Federal Affairs, Crum & Forster Insurance Companies, Washington, D.C. Mr. Graham is a partner and Ms. Wardzinski is an associate in the Washington, D.C., law firm of Freedman, Levy, Kroll & Simonds.

[19 ELR 10203]

Despite numerous changes made in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)¹ by the Superfund Amendments and Reauthorization Act of 1986 (SARA),² the two years of experience with its implementation seem to have produced few improvements in the settlement or litigation process. New cleanup standards are not only driving up the costs of remedial action, but are also delaying further the process of site cleanup by increasing the number of issues that are being litigated. Considering the number and types of sites that are likely to be listed on the National Priorities List in years to come — huge urban landfills used by hundreds or even thousands of potentially responsible parties (PRPs) for decades — it is disappointing that Congress did not do more to encourage both PRPs and the government to use nonlitigative means to resolve their disputes.

Indeed, there was overwhelming evidence from early Superfund cases that it was already costing as much if not more to litigate the issues of liability and the nature of the remedy as it was to do the actual cleanup. For example, the PRPs at the Ottati & Goss site in New Hampshire have spent in the range of $ 6-20 million to litigate a remedy that is currently estimated to cost about $ 15 million to implement. If the cost of site cleanups triples or quadruples, as SARA seems to contemplate, more litigation is sure to follow, wasting valuable resources better spent on improving the condition of the environment.

Despite this, it currently seems unlikely that the basic approach of using the tort system to fund what should be a public works project will change. The romance of the notion that "the polluter pays" seems to be politically irresistible. This is true even though it may be the most expensive and slowest way to get the job done, and even if in truth what most generators did years ago to incur all those liabilities was not "pollution" under any then prevailing definitions.

The cost of this approach also may be astronomical. Spending $ 30 million to $ 50 million per site on cleanup and half again as much on litigation for, say, 15,000 sites could cost anywhere from $ 675 billion to more than a trillion dollars!

Insurance Coverage as an Answer?

Many PRPs, faced with the threat of such costs, have turned to insurance companies to shoulder this burden. However, even insurance carriers are having difficulty addressing this issue.

Insurance companies price their products and calculate their reserves on the basis of past experience, not speculation about the future. As a result, there were no reserves created for Superfund liabilities under policies written prior to CERCLA's enactment.

Thus, insurance companies must dip into surplus, the insurance equivalent of business equity, to address these problems. That surplus backs up all the commitments ever made — to homeowners, automobile policyholders, employers — under all the contracts ever written. At last count, the entire industry's surplus was about $ 110 billion. That is about one-tenth of what it could cost to clean up past waste disposal mistakes under the cleanup standards imposed by SARA.

Moreover, carriers cannot raise the necessary money by building cleanup costs into the prices of future policies. Neither insurance rate regulatory statutes nor the industry's own competitive instincts would permit it. Insurance companies are required to justify all rate increases statistically on the basis of past loss and expense history. Carriers cannot go back to old policyholders and seek reimbursement based on past miscalculations. They also cannot expect new policyholders to make up past shortfalls. Any company that tried that would not only lose market shares, but also would be forced to eliminate the shortfall factor in its rates. Thus, the industry must fund potential liability out of profits from other policies that have been reinvested.

Judicial Decisions on Insurance Coverage

In part because of the protracted nature of Superfund litigation, there isn't yet a well-developed body of case law on what insurers' obligations are in Superfund actions. The courts are all over the place on both defense and indemnity issues. Although insurers seem to be winning more cases [19 ELR 10204] than insureds these days, it is premature to project the final outcome.

Historically, the trend in coverage decisions was toward imposing both defense and indemnity obligations on insurers.³ While this remains true in some jurisdictions, for example, New Jersey and Michigan,⁴ recent decisions in other jurisdictions have been less favorable to the insured.⁵ The insurers have won significant victories in the U.S. Courts of Appeals on the meaning of the "sudden and accidental" language generally found in pollution exclusion provisions,⁶ and similar victories on the meaning of "damages"⁷ or "property damage"⁸ under comprehensive general liability (CGL) policies. This may result in forum shopping in the immediate future if parties begin to sense that they can obtain a more favorable reception on coverage questions in certain states.⁹

Notwithstanding some significant recent victories for insurers, however, many courts have and likely will continue to ultimately impose PRPs' Superfund liabilities on their insurers. These courts are willing to find coverage in conformity with the "reasonable expectations" of policyholders and to interpret policies so as to provide maximum coverage for the insured.¹⁰

Judicial or Legislative Solutions Unlikely

Nonetheless, it seems unlikely that these issues can or will be resolved ultimately through the courts or Congress. At the lower courts, judges are faced with a difficult dilemma. Congress has given the cleanup of hazardous wastes its highest environmental priority. Poll after poll shows that the public overwhelmingly supports this priority. One must remember that judges read the same polls and newspapers that everyone else reads. While certainly judges are sworn to uphold the law, not to pander to popular notions of what is or is not a worthwhile reason to find insurance coverage, they are also human and bring to their jobs divergent backgrounds and predilictions. Decisions can be influenced by such socioeconomic, as well as legal, considerations.

These judges are often faced with the dilemma of PRPs being forced to file for bankruptcy unless there is any plausible basis of finding insurance coverage. On the other hand, of course, the state law equivalent of bankruptcy also is available to insurers, who not only provide jobs but also play a vital role in protecting the economic security of millions of households and businesses. The result has been divergent and conflicting opinions, at times even within the same state.

It is also unlikely that the Supreme Court will resolve this dispute. The insurance industry tried unsuccessfully four times to get the Court to grant certiorari in the major asbestos disease coverage cases. The Court also denied certiorari in Maryland Casualty v. Armco and in NEPACCO.¹¹ Although the Court gave no written explanation of its basis for denial, the fact is there was no federal law issue involved. These cases arose as matters of state insurance contract law. The Supreme Court, in the absence of federal legislation on these issues, is unlikely to override state law by crafting a federal common law of insurance contract interpretation. The spirit of Erie Railroad v. Tompkins¹² lives on.

It also seems unlikely that Congress will resolve this issue. The insurance industry tried to craft legislation that from its standpoint would solve both PRPs' and insurers' problems with Superfund by converting it from a liability-based program into a straightforward, general revenues-based public works program. However, the business community disliked the idea of higher taxes, and both the Reagan Administration and the Congress rejected the concept of doing away with PRP liability for pre-1980 waste disposal activity.

This was followed by the infamous "silver bullet" amendment. This alternative would have voided the possibility of coverage for Superfund obligations under pre-1980 CGL policies. Although the insurance industry may have come closer to succeeding than commonly thought, this failed attempt has demonstrated that the insurance industry will not be able to solve its problems statutorily at the PRPs' expense. Thus, the business community — including both insurance companies and PRP companies — must work together to solve their common problems, in a mannerthat will enable both to survive and get the waste cleanup job done. The alternative — continuing to hammer on each other in the courts — is unappealing from the standpoint [19 ELR 10205] point both of advancing the site cleanup process and of cost effectiveness.

Nonlitigation Solution

Since legislative or definitive judicial resolution of insurer-PRP differences appears unlikely in the near future, it seems evident that some nonlitigative alternative should be explored for resolving these differences. Given the current divergence of opinion on coverage issues, such an approach might best develop as an evolutionary process rather than as a single agreement.

A first step would be to bring both PRPs and their insurers to the same table to discuss, on a site-specific basis, issues they have in common. In almost all large Superfund cases these days there is a PRP steering committee established to deal with EPA. In this way the costs of negotiating with the Agency are shared among the group. At some sites PRPs have even banded together to sue the insurance companies. An initial suggestion might be that the steering committee be expanded to include representatives of the PRPs' insurers. This would further increase the group among whom transaction costs are divided. It would also establish early on a policy of cooperation that, one hopes, would lead to negotiated resolution of other issues concerning the cleanup and its funding.

For example, assume a site is used by 50 PRPs for ten years. Next, assume that each PRP had three different insurers during the ten-year period. That is potentially 150 different insurers, plus 50 PRPs, for a total of 200 parties, not counting excess or reinsurance carriers. In the absence of any kind of cooperation, the insurance companies would each have to hire counsel to deal with claims made by their insureds. In turn, many of the major PRPs would likely retain their own counsel and experts to deal with EPA on liability and choice of remedy issues, in addition to dealing with their companies' insurance carriers.

Cooperation through the steering committee could be done under a reservation of rights by both sides so that neither would jeopardize their ultimate positions on coverage issues. Meanwhile, benefits would inure to both groups from being part of the process from the beginning. Each would be paying 1/200 of the joint experts' and attorneys' fees, instead of having to field an individual team. Each also would be involved from the beginning in the negotiations over the remedy and the apportionment of liability. Thus, in the event carriers are ultimately required to provide defense and indemnity, both sides will be spared the necessity of fighting a new apportionment of that liability between themselves.

The ultimate goal of this evolutionary process would be the development of an institution, an organization, or a formula through which the parties could develop, without litigation and on a site-by-site basis, an apportionment of their potential liability. This could include both defense costs among different carriers and indemnity between themselves and the PRPs. The time and cost savings inherent in institutionalizing this process would make this idea progressively more attractive as the number and pace of Superfund cleanup actions accelerate.

That is what ultimately happened in the asbestos disease coverage cases.¹³ However, in the asbestos cases, the issues were simpler, in part because there was no questionthat there was bodily injury. The only issue was which insurer in the continuum from exposure through manifestation was liable for that injury. In Superfund cases the issues are far more complex. There is disagreement not only over whether there was "property damage" within the meaning of standard CGL policies, but also whether there was an "occurrence" giving rise to that damage. This complexity is compounded by the presence of the pollution exclusion clause in many policies and by the same time-line issues involved in the asbestos cases. Although these "differences" may at times seem irreconcilable, efforts to resolve them amicably are particularly important when it is so unlikely these conflicts will be resolved by others.

Considerations for Reaching a Compromise

The terms of any agreement will be difficult to work out and may need to vary depending on the facts of a particular case and the variations in the terms of the policies involved. Certainly the deal cannot be better for one side than the other. In order to evaluate the attractiveness to each side of any proposal, one must understand how the outstanding issues in the insurance area, and the courts' treatment of these issues, are viewed by PRPs and carriers.

The greatest uniformity appears on the matter of defense obligations. Most courts agree that an insurer's duty to provide a defense is a broader one than the duty to indemnify. Even if only one of a series of allegations in a complaint is arguably within the scope of a policy's coverage, the insurer is obligated to defend against all of them.¹⁴ Thus, an agreement concerning defense obligations should be easiest to reach between insurers and PRPs.

One issue complicating this area is the lack of unanimity on the point at which a duty to defend is triggered. Decisions are split on whether a PRP notice letter is sufficient to trigger the obligation or whether a formal lawsuit must first have been filed.¹⁵ A growing number of cases are recognizing the unusual nature of Superfund actions, where a failure to become involved in negotiations prior to the filing of a suit can have severe repercussions, among them the imposition of joint and several liability and treble damages.¹⁶ To wait for a lawsuit in the face of this is senseless and counterproductive to both sides' interests.

[19 ELR 1026]

On the indemnification issues, a pattern is less evident. From the insurance industry's point of view, the trend is moving in its favor. NEPACCO,¹⁷ Armco,¹⁸ and a number of decisions following them¹⁹ have held that cleanup costs do not constitute "damages" under standard CGL policies. This is due to the character of the typical EPA demand. These decisions have held that such demands sound more in equity than in law and do not seek damages so much as injunctive relief. From the insured PRPs' standpoint such decisions completely ignore the expectations of the insured that should be the first rule of interpretation. Most insureds would never have expected, indeed rarely understand, such distinctions.

On the interpretation of the "pollution exclusion" clause the case law again varies. Historically, and even now in some jurisdictions, the "sudden and accidental" language used in such clauses was defined in terms of the "expected or intended" language found in the definition of an "occurrence."²⁰ Thus, if the insured did not "expect or intend" the environmental damage, even if aware of the activities causing it, the pollution exclusion will not prevent coverage.²¹ However, in a number of the more recent cases, "sudden and accidental" is read in a temporal way.²² Unless the pollution event occurred quickly and for a relatively short duration — e.g., a spill — there is no coverage.

Many cases have also been harsher on land owners or operators of landfills. Courts have held that since owners or operators were directly involved in the dumping or disposal of wastes, they should be expected to be aware of the potential harm resulting from such disposal.²³ In contrast, coverage decisions are more often favorable for a PRP generator whose wastes were sent to and caused damage to a third party's property, assuming the courts can get past the pollution exclusion's "sudden and accidental" limitation and find an "occurrence" during the policy period that gave rise to the damage.²⁴

Demands for cleanup of a PRP's property have given the courts a harder time. Regardless of other issues, some courts have refused to grant any coverage due to the owned property exclusion.²⁵ Others, however, allow coverage where action is necessary to prevent or mitigate damage to a third party.²⁶ Many cases also consider groundwater to be the property of the state, not the overlying landowner.²⁷ Such holdings often turn on the applicable state law.

As can be seen, there is still a wide divergence of opinion on these issues. On the one hand, carriers may be willing to compromise on defense costs since recent decisions have been more favorable in the indemnification area. Carriers might agree to broad defense obligations in return for concessions in the indemnity area. However, such an approach would be difficult for PRPs to accept since the major Superfund costs will be those concerning indemnification, particularly in cases that settle. The fact that views and decisions continue to differ argues even more for a negotiated resolution. However, any resolution may call for some rethinking of traditional notions of liability coverage.

Rethinking Traditional Notions of Liability Coverage

Traditionally, liability insurance contracts are written to respond to some event that results in actual property damage or bodily injury to third parties for which damages may be claimed. Yet, many Superfund actions often are brought to prevent an event or harm from occurring. From the insurer's standpoint, the courts have tied themselves in intellectual and semantic knots trying to find in these cases either a covered event, someone to compensate, or damages. Pleas for injunctive relief are recharacterized as suits for damages, the state's inchoate interest in trees and perhaps unusable groundwater is reclothed as real property ownership, and the mere presence of the wastes is recast as an occurrence.²⁸ Insurers think PRPs must acknowledge [19 ELR 10207] that the results of these cases do not comport with traditional notions of liability insurance if there is to be any accommodation between them.

For example, insurers point to the fact that if a car's brakes need repair, one would not think to ask his auto insurer to fix the car's brakes to prevent the occurrence of an accident. Similarly, they argue, if a dead tree in one's yard looks as though it may fall on a neighbor's house, the tree owner would not call its homeowner's insurer and ask it to cut down the tree before it falls in the neighbor's house. The insurance industry fears that if policies provided such "maintenance"-type coverage, it would create a "moral hazard" — the possibility that policyholders would deliberately neglect routine maintenance in order to take advantage of their insurance coverage.

In the hazardous waste site context, insurers fear that by accepting liability for the cost of preventative cleanups, or what they might describe as "mere" environmental damage, they would create an irresponsible claims environment. They fear, in effect, that policyholders would be led to believe that it is immaterial to their insurance coverage whether they handle their wastes responsibly(by shipping them to a disposal facility operating under a Resource Conservation and Recovery Act permit, for example) or irresponsibly (perhaps by dumping them haphazardly on the "back 40").

However, the insurer's concern with creating a "moral hazard" makes little sense under CERCLA. Here, the courts are saying that it does not matter either that a PRP handled wastes responsibly or that his conduct did or did not cause harm. Liability attaches to a PRP's status, whether as generator, transporter, or facility owner/operator, rather than to the consequences of his conduct. If liability insurance is intended to answer for any legal liability imposed on the policyholder, why should the policyholder's conduct, other than willful or deliberate malfeasance, have anything to do with whether he is covered or not? Moreover, most Superfund actions are brought by EPA or the states to prevent or remedy just such harm, the focus generally being on groundwater or surface water contamination or natural resource damages. The unique aspects of this liability scheme must be appreciated by the insurance industry if an accommodation is to be reached by the parties.

Although a perfect model will be difficult to negotiate, the basic purpose of the deal would be to eliminate the need for litigation and to both soften and stretch out the "hit" on insurers. This will give the industry enough time to add new funds to surplus from profits on its ongoing business in order to fund its part of the bargain.

Such an arrangement would obviously be complicated to work out, but certainly there are advantages to both sides to resolving the differences between them through a nonlitigative approach. Although complicated, the survival of the insurance industry — and perhaps the survival of many PRPs as well — may depend on their being able to achieve a voluntary, marketplace resolution of these differences.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 44001-81.

2. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

3. See, e.g., Port of Portland v. Water Quality Insurance Syndicate, 796 F.2d 1188, 16 ELR 20956 (9th Cir. 1986); Shapiro v. Public Service Mutual Insurance Co., 19 Mass. App. Ct. 648, 477 N.E.2d 146 (1985), review denied, 395 Mass. 1102, 480 N.E.2d 24 (1985), review denied, 395 Mass. 1105, 482 N.E.2d 328 (1985); Buckeye Union Insurance Co. v. Liberty Solvents & Chemicals Co., 17 Ohio App. 3d 127, 477 N.E.2d 1227 (1984); Jackson Township Municipal Utilities Authorities v. Hartford Accident & Indemnity Co., 186 N.J. Super. 156, 451 A.2d 990 (1982).

4. See, e.g., CPS Chemical Co. v. Continental Insurance Co., 222 N.J. Super. 175, 536 A.2d 311 (1988); Broadwell Realty Services, Inc. v. Fidelity and Casualty Co., 218 N.J. Super. 516, 528 A.2d 76 (App. Div. 1987); United States Fidelity & Guaranty Co. v. Thomas Solvent Co., 683 F. Supp. 1139 (W.D. Mich. 1988); Upjohn Co. v. New Hampshire Insurance Co., No. 85-288652-CK (Mich. Cir. Ct. Jan. 5, 1987), reprinted in Mealey's Litigation Reports — Insurance 3747 (1987).

5. See, e.g., Continental Insurance Cos. v. Northeastern Pharmaceutical and Chemical Co. (NEPACCO), 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988) (en banc), cert. denied, 109 S. Ct. 66 (1988); United States Fidelity & Guaranty Co. v. Murray Ohio Manufacturing Co., No. 3-84-1126 (M.D. Tenn. June 28, 1988), reprinted in Mealey's Litigation Reports — Insurance D (July 27, 1988); Hayes d/b/a Fashion Cleaners v. Maryland Casualty Co., No. 87-30410-WEA (N.D. Fla. 1988), reprinted in Mealey's Litigation Reports — Insurance A (July 15, 1988).

6. Great Lakes Container Corp. v. National Union Fire Insurance Co., 727 F.2d 30, 14 ELR 20282 (1st Cir. 1984).

7. Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348, 17 ELR 21277 (4th Cir. 1987), cert. denied, 108 S. Ct. 703 (Jan. 11, 1988); NEPACCO, 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988) (en banc), cert. denied, 109 S. Ct. 66 (1988).

8. Mraz v. Canadian Universal Insurance Co., 804 F.2d 1325, 17 ELR 20372 (4th Cir. 1986).

9. See, e.g., Westinghouse Electric Corp. v. Aetna Casualty and Surety Co., Nos. L-069351-87, L-069352-87 (N.J. Super. Ct. Law Div. Mar. 22, 1988), reprinted in Mealey's Litigation Reports — Insurance D (Apr. 13, 1988), on appeal, Nos. A-4553-87T1F and A-4554-871F (N.J. Super. App. Div.); The Travelers Indemnity Co. v. Allied-Signal, Inc., No. JFM-88-99 (D. Md. Jan. 14, 1988) (stay denied Apr. 22, 1988).

10. See, e.g., CPS Chemical, 222 N.J. Super. 175, 536 A.2d 311 (1988); United States Fidelity & Guaranty v. Thomas Solvent Co., 683 F. Supp. 1139 (W.D. Mich. 1988); New Castle County v. Hartford Accident and Indemnity Co., 673 F. Supp. 1359 (D. Del. 1987).

11. Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348, 17 ELR 21277 (4th Cir. 1987), cert. denied, 108 S. Ct. 703 (Jan. 11, 1988); NEPACCO, 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988) (en banc), cert. denied, 109 S. Ct. 66 (1988).

12. 304 U.S. 64 (1938).

13. The Asbestos Claims Facility was established to resolve disputes in those cases. A new organization, The Center for Claims Resolution, has been recently formed in its place. See 3 Toxics L. Rep. (BNA) No. 22, at 669-670 (Oct. 26, 1988).

14. See, e.g., United States Fidelity & Guaranty Co. v. Thomas Solvent Co., 683 F. Supp. 1139 (1988); Independent Petrochemical Corp. v. Aetna Casualty & Surety Co., 654 F. Supp. 1334 (D.D.C. 1986); Shapiro v. Public Service Mutual Ins. Co., 19 Mass. App. 648, 477 N.E.2d 146 (App. Ct. 1985), review denied, 395 Mass. 1102, 480 N.E.2d 24 (1985), review denied, 395 Mass. 1105, 482 N.E.2d 328 (1985).

15. Evart v. Home Insurance Co., No. 103621 (Mich. App. Ct. 1987), reprinted in Mealey's Litigation Reports — Insurance E (Jan. 12, 1988) (duty to defend not triggered by state notice of potential liability); Detrex Chemical Industries v. Employers Insurance of Wausau, No. C85-2287Y (N.D. Ohio 1988), reprinted in Mealey's Litigation Reports — Insurance B (Feb. 23, 1988) (PRP letter is not synonomous with a "suit"); Fireman's Fund Insurance Co. v. Ex-Cell-O Corp., No. 85-71371 (S.D. Mich. May 18, 1987) (insurance companies required to defend when policyholder receives PRP letter); Hazen Paper Co. v. United States Fidelity & Guaranty Co., 19 ELR 20364 (Mass. Super. Ct. Jan. 10, 1989) (PRP notice letter triggers duty to defend).

16. American Motorists Insurance Co. v. Levelor Lorentzen, Inc., No. 88-1994 (D.N.J. Oct. 14, 1988).

17. 842 F.2d 977, 18 ELR 20819 (8th Cir. 1988) (en banc), cert. denied, 109 S. Ct. 66 (1988).

18. 822 F.2d 1348, 17 ELR 21277 (4th Cir. 1987), cert. denied, 108 S. Ct. 703 (Jan. 11, 1988).

19. See, e.g., Argonaut Insurance Co. v. Atlantic Wood Industries, No. 87-0323-R (E.D. Va. June 20, 1988), reprinted in Mealey's Litigation Reports — Insurance C (June 28, 1988); Cincinnati Insurance Co. v. Medley, No. 6-87-1167-3 (D.S.C. June 13, 1988), reprinted in Mealey's Litigation Reports — Insurance D (June 28, 1988); Verlan, Ltd. v. John L. Armitage & Co., 695 F. Supp. 955, 19 ELR 20330 (N.D. Ill. Sept. 6, 1988); Protective National Insurance Co. v. Union Oil Co., No. C-514-463 (Cal. Super. Ct. Los Angeles County Nov. 24, 1987), reprinted in Mealey's Litigation Reports — Insurance B (Dec. 8, 1987).

20. United States Fidelity & Guaranty Co. v. Star Fire Coals, No. 85-257 (E.D. Ky. Aug. 14, 1987), reprinted in Mealey's Litigation Reports — Insurance D (Jan. 12, 1988); Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., No. A-5301-85T7 (N.J. Super. Ct. App. Div. July 2, 1987), reprinted in Mealey's Litigation Reports — Insurance 4634 (July 14, 1987); Benedictine Sisters v. St. Paul Fire & Marine Insurance Co., No. 86-5120 (8th Cir. Apr. 7, 1987), reprinted in Mealey's LitigationReports — Insurance 4501 (June 9, 1987).

21. Id.

22. Guilford Industries v. Liberty Mutual Insurance Co., No. 87-0225-B (D. Me. July 26, 1988), reprinted in Mealey's Litigation Reports — Insurance B (Aug. 9, 1988); United States Fidelity & Guaranty Co. v. Murray Ohio Manufacturing Co., No. 3-84-1126 (M.D. Tenn. June 28, 1988), reprinted in Mealey's Litigation Reports — Insurance E (July 27, 1988); International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co., No. 87-0505 (Ill. App. Ct., 1st Jud. Dist., 5th Div. Mar. 25, 1988), reprinted in Mealey's Litigation Reports — Insurance B (Apr. 13, 1988).

23. Great Lakes Container Corp. v. National Union Fire Insurance Co., 727 F.2d 30, 14 ELR 20282 (1st Cir. 1984); American States Insurance Co. v. Maryland Casualty Co., 587 F. Supp. 1549 (E.D. Mich. 1984).

24. See Buckeye Union Insurance Co. v. Liberty Solvents & Chemicals Co., 17 Ohio App. 3d 127, 477 N.E.2d 1227 (1984).

25. See, e.g., Pepper's Steel & Alloys, Inc. v. United States Fidelity & Guaranty Co., 668 F. Supp. 1541 (S.D. Fla. 1987); United States v. Conservation Chemical, 619 F. Supp. 162 (W.D. Mo. 1986) (adopting Special Master's recommendations); CPS Chemical Co. v. Continental Insurance Co., 222 N.J. Super. 175, 536 A.2d 311 (1988); E.C. Electroplating v. Federal Insurance Co., No. L-06-2919-85 (N.J. Super. Ct. Feb. 18, 1986).

26. Unigard Mutual Insurance Co. v. McCarty's, Inc., No. 83-1441 (D. Idaho July 22, 1988), reprinted in Mealey's Litigation Reports — Insurance I (Aug. 9, 1988); Bankers Trust Co. v. Hartford Accident & Indemnity Co., 518 F. Supp. 371 (S.D.N.Y. 1981), vacated 621 F. Supp. 685 (S.D.N.Y. 1981); Broadwell Realty Services, Inc. v. Fidelity and Casualty Co., 218 N.J. Super. 516, 528 A.2d 76 (App. Div. 1987).

27. Aviex Co. v. Travelers Insurance Co., 125 Mich. App. 579, 336 N.W.2d 838 (1983); Riehl v. Travelers Insurance Co., 15 ELR 20004 (W.D. Pa. Aug. 7, 1984), rev'd on other grounds, 772 F.2d 19, 15 ELR 20859 (3d Cir. 1985); Queen City Farms, Inc. v. Aetna Casualty & Surety Co., No. 86-2-06236-0 (Wash. Super. Ct., King Co. Jan. 16, 1988), reprinted in Mealey's Litigation Reports — Insurance C (Mar. 23, 1988).

28. New Castle County v. Hartford Accident & Indemnity Co., 673 F. Supp. 1359 (D. Del. 1987); ("damages" given ordinary meaning and covers cleanup costs); Broadwell Realty Services v. Fidelity and Casualty Co., 218 N.J. Super. 516, 528 A.2d 76 (App. Div. 1987) (demands to remedy damage to groundwater and surface water are covered by insurance policy); Solvents Recovery Service of New England v. Midland Insurance Co. (In a request to appeal an interlocutory order finding coverage, Hartford Insurance Company argued that no actual environmental harm has been demonstrated from hazardous substances spill.) See Mealey's Litigation Reports — Litigation 4053 (Mar. 24, 1987).