Even as briefing has begun before the Massachusetts Supreme
Judicial Court with respect to the issue of allocation, Vermont
has joined the growing number of Northeastern states adopting a
"time on the risk" approach in long-tail cases. In
its first comprehensive assay into the murky world of
environmental jurisprudence, the Vermont Supreme Court has
ruled in Towns v. Northern Security Ins. Co., 2008 VT 98 (Vt.
August 1, 2008), that (1) a continuous trigger is appropriate,
not "manifestation;" (2) the own property exclusion
does not apply to groundwater contamination; (3) even de
minimis levels of environmental contamination constitute
"property damage;" and (4) a waste hauler's
use of debris from his business to redevelop his personal home
is not subject to the "business pursuits" exclusion
in a homeowner's policy.
Vermont is an unusual state within which to litigate
environmental coverage issues. Unlike states in southern New
England, Vermont lacks the type of heavy industry that have
historically generated significant numbers of environmental
claims in the past. On the other hand, insurers for the most
part have been denied the opportunity to include pollution
exclusions by reason of regulations followed by Vermont
regulators since the early 1970s. Even so, there has been a
relative dearth of clear appellate case law construing the
availability of insurance coverage for such claims. It will be
interesting to see how this latest ruling impacts the scope of
future coverage controversies in the Green Mountain State and
whether the state Supreme Court's adoption of a
"time on the risk" approach will influence the
attitude of northern New England states whose Supreme Courts
have yet to rule on allocation issues, such as Maine and
Massachusetts.
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