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How Long Does a Duty to Defend Against Environmental Claims Last?

hands holding tree growing on coins Environmental claims routinely involve allegations that date back several years or even decades. This creates difficult legal questions for potential defendants and their insurers. Sometimes sites are the subject of complaints or other types of activity before a claim is filed that would trigger the application of an insurance policy. If a lawsuit is not filed within the period covered under the policy, insureds often look to other actions that occurred within that time frame. A recent federal court decision, however, casts doubt on whether that type of evidence should be considered.

Items that might constitute a claim for policy purposes can include:

  • Administrative proceedings and communications — Governments often are concerned with potential environmental problems before an actual claim arises.
  • Engineering reports — Internal or external reviews from engineers and scientists may or may not indicate that a potential issue exists.
  • Contact with experts or other stakeholders — Concerns or complaints regarding a particular site might not reflect the assertion of a legal right.

A 2016 decision from the U.S. District Court, District of Washington, held that extrinsic evidence could not be utilized to revise the claim date for insurance purposes. In making its decision, the court examined four potential claims and rejected coverage for each one. For two cases, the decision stated that administrative and other proceedings did not rise to a claim. In the other two instances, the claims were said to have arisen before the policy period.

For environmental claims and other matters, Pullin, Fowler, Flanagan, Brown & Poe, PLLC provides knowledgeable evaluation of insurance policies and obligations under state and federal law. To schedule a consultation with one of our attorneys, call 304-344-0100 or contact us online.

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