The Road to Insurance Recovery

Montrose v. Superior Court and the Future of Exhaustion Under California Law.

When a policyholder faces a “long-tail” claim (i.e., a claim involving injury that remains undetected for some time after the alleged wrongdoing, and the harm may have been sustained over a number of years—even decades), like property damage and bodily injury claims arising out of alleged environmental contamination or asbestos exposure, there are often multiple years and layers of primary and excess insurance policies that provide coverage. However, there are also many issues that may arise, making it difficult for insureds to collect all relevant coverage. For example, the insured may have trouble finding all applicable policies that were in place at relevant times, there may have been mergers and acquisitions that complicate matters, some coverage may have become insolvent, etc.

A key legal issue that impacts the manner in which policyholders may collect all relevant coverage is whether the insured must first exhaust all underlying primary coverage in place during the time of alleged harm before it is allowed to tap into valuable excess coverage (often called “horizontal” exhaustion), or whether it may choose to first collect the primary and excess coverage in any given year before seeking to collect other years of coverage (often called “vertical” or “all sums” exhaustion). While horizontal v. vertical exhaustion (or some variant thereof) is a state-by-state issue, the Supreme Court of California in Montrose Chemical Corp. v. Superior Court, 406 P.3d 327 (Cal. 2017) recently set the stage for potentially one of the most impactful coverage decisions on this issue in decades. There, the California Supreme Court recently granted the policyholder, Montrose’s, request to decide whether it must exhaust all its primary policies on the risk before recovering under any of its excess policies for environmental damages.

The Montrose coverage dispute began in 1990 and arose out of the policyholder, Montrose’s, long-running efforts to procure coverage for over $100 million in damages incurred in a CERCLA action. The action arose out of Montrose’s production of the pesticide DDT at its facility in Torrance, California, between 1947 and 1982 and implicates nearly two dozen insurers that issued both primary and excess policies to Montrose.

It is possible that the court will seek to refrain from issuing a broadly applicable ruling in Montrose; instead focusing narrowly on particular language in the insurance policies at issue.  Nevertheless, many insurers and insureds are anxiously awaiting the ruling in this case, which should clarify how and when, under California law, insureds may seek coverage for environmental damages that span many years‒even decades‒under valuable excess policies. Moreover, because many jurisdictions look to California as a leader on insurance coverage issues, the decision could have a nationwide impact.

How quickly companies facing major claims are able to fully utilize all available insurance may make-or-break those companies. Typically, policyholders favor vertical exhaustion. For example, where there is an insurance dispute with multiple carriers on a long-tail claim (and there often is), vertical exhaustion can provide the most favorable and efficient route to securing the most coverage limits as quickly as possible. It also potentially allows the policyholder to avoid paying several retentions or deductibles under multiple primary policies, which would be required under horizontal exhaustion for a claim that may span many years.

Please come to The Road to Insurance Recovery for updates on Montrose as it progresses.