SDV Insights

Superfund Informational Request Triggers Duty to Defend

Policyholders may remember when it was groundbreaking for courts to characterize the EPA’s Potentially Responsible Party letters as a “suit,” triggering the duty to defend under a Commercial General Liability policy.

Going a step further in favor of policyholders, the Ninth Circuit recently determined that EPA informational request letters should also be characterized as a “suit.”

In 2008, Ash Grove Cement Company received an EPA informational request letter concerning contamination at a Superfund site. Its insurers denied coverage, claiming there was no “suit.” The Ninth Circuit required the insurers, who issued policies between 1963-1969 and 1973-1986, to defend Ash Grove for the cost of response to the EPA’s request, which the court characterized as a “coercive information demand that is an attempt to gain an end through legal process and is therefore a suit.”

Superfund actions can go on indefinitely and require an expensive administrative defense, highlighting the value of having coverage even at the earliest stages of the process.

This represents a significant step in favor of policyholders. It also illustrates the value of saving old policies, even decades after the policy period ends.

If you receive a letter concerning contamination at a Superfund site, make sure you evaluate the coverage that may be available under your liability policies.


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