The continuing increase in Superfund, toxic tort, and other environmental litigation has been accompanied by a dramatic growth in insurance-related litigation. Companies faced with the costs of defending environmental suits, particularly those with potentially large judgments and cleanup responsibilities, have sought to obtain coverage from their insurance carriers. Given the high stakes involved in such litigation, the insurance industry asserts every conceivable coverage defense.

More than 20 years of coverage litigation involving environmental and other long-term toxic tort claims has revolutionized insurance law throughout the United States. Still, because coverage issues are a matter of state law, litigation continues in virtually every state to obtain decisions of the highest court of the state on each important coverage issue. Choice of law determinations in insurance coverage disputes are often case dispositive, and securing a favorable forum by winning the race to the courthouse remains an important consideration.

Frequently, the receipt of a decision from a state supreme court on an issue simply generates additional litigation on related or unresolved issues. Thus, despite the extraordinary number of coverage decisions in recent years, there is still no shortage of novel, emerging issues of first impression to be decided. Even where a state provides clear guidance as to the governing law, application of the facts of a particular case to the law can be difficult and can result in complex and hotly contested litigation which requires experienced trial lawyers. Given this dynamic and constantly changing legal landscape, it is now more important than ever for your companies to be creative and proactive in order to maximize insurance coverage for environmental liabilities.

As coverage litigation moves from the resolution of abstract coverage issues to determining how those principles apply in particular cases, knowledge of the underlying environmental matter becomes crucial in developing a coherent, comprehensive and winning strategy. The Firm s ability to represent companies in both environmental and insurance matters provides clients with a distinct advantage in pursuing insurance claims. Morgan Lewis environmental lawyers who have intimate knowledge of the underlying environmental dispute work closely with insurance litigators to develop the company s position on a myriad of issues that bear directly on the availability of coverage, including the state of the art at the time of the waste disposal in question, the company s intent and expectation in disposing of its waste, and the nature and timing of the remediation effort. This team approach helps to avoid re-learning the facts, thereby controlling costs and leading to a more focused and effective coverage presentation.

In addition to the effective integration of Firm resources in the environmental, insurance, and litigation areas, Morgan Lewis also recognizes the importance of real "partnering" between outside and in-house counsel. The Firm welcomes the valuable insights and information that in-house counsel can provide when acting as team members in settlement, litigation, depositions, witness interviews, hearings, strategy sessions, and trials. Further, coordination with clients in the areas of document organization, imaging, retrieval, computer support and other logistical matters greatly reduces costs and improves efficiency. The experiences gained in our insurance coverage cases provide a model partnering approach which can serve to defray litigation costs, increase efficiency, and expedite successful results.

Morgan Lewis Insurance Activities

• Evaluating potential coverage for environmental loss under comprehensive general liability policies, first party property policies, excess and umbrella policies, environmental impairment liability and pollution legal liability insurance, marine insurance policies, directors and officers liability insurance, fidelity bonds, and other business policies.
• Representing policyholders in coverage litigation; evaluating potential for success on the merits of such litigation proceedings.
• Counseling policyholders in connection with insurance carrier settlement negotiations.
• Performing insurance coverage reviews, including use of insurance archaeology techniques to locate policies.
• Identifying and negotiating insurance vehicles to cover identified environmental risk, including the use of environmental title and risk-transfer insurance, structured settlements, and annuity-based coverages.

Denis Brenan, John Failla, Richard McMenamin, Glen Stuart and Howard Weir have extensive experience litigating and settling large, complex environmental and toxic tort coverage cases on behalf of insureds. These lawyers, as well as Richard Pettigrew and Eric Rothenberg, also have significant experience in counseling insureds on coverage issues.