Hinkle v. The North River Ins. Co.
(D. Alaska December 4, 2009)
The owners of property on which a dry cleaning business was operated seek a declaratory judgment against the prior owners’ insurers, preventing them from denying coverage for claims plaintiffs made against the prior owners to recover for costs the state of Alaska assessed against plaintiffs to clean up the property.
In 1999, the insurers agreed to defend the prior owners under a reservation of rights, saying they could not locate the policies, but reserved all rights and defenses available to the insurers under the policies. However, in 2008, the insurers issued a supplemental reservation of rights agreeing to continue defending the prior owners, but raising four new defenses: that the contamination was not an “occurrence”; that it might have happened after the coverage period: that a pollution exclusion precludes coverage; and that an exclusion for damage to a property “owned or occupied” by the insured bars coverage.
On December 4, 2009, plaintiffs filed a motion for partial summary judgment barring the insurers from denying coverage under the primary policies because the insurers waited eight years to raise the additional defenses. Additionally, plaintiffs argue that the insurers are estopped from raising coverage defenses under the umbrella policy other than the claim that there is no evidence showing the policy exists.
For a copy of the motion click here
Toni Frain and Thomas Segalla
https://www.goldbergsegalla.com/attorneys/Frain.html
https://www.goldbergsegalla.com/attorneys/Segalla.html