Determining An Occurrence In Environmental Insurance Cases

Like a comet which drags a long trail in its wake, large CERCLA  cases in federal court often are accompanied by related insurance coverage cases in state court. That is true with the Lower Fox River Superfund Site in Wisconsin.   While a firestorm of litigation has raged for many years in federal court relating to the billion dollar liability for PCB contamination in the Lower Fox River, the key PRP in that litigation – NCR -- has sought in Wisconsin state court to establish that it can pass some or all of that liability on to its insurers.

In NCR Corporation v. Transport Insurance Company, the Wisconsin Court of Appeals recently clarified the elements necessary to establish an occurrence under a pre-pollution exclusion liability policy.  The policy at issue contained the standard "occurrence" provision requiring property damage that is "neither expected nor intended from the standpoint of the insured."  The Court rejected the insurer's argument that the