On September 24, 2003, Oregon's governor signed a bill enacting amendments to the Oregon Environmental Cleanup Assistance Act, which legislates rules of construction for general liability insurance policies in connection with environmental claims. The Act previously addressed choice of law and presumptions relating to the characterization of defense and indemnity costs. The recent amendments relate to an insurer's defense obligation and lost policies.
Joint and Several Defense Obligation.
The amendments provide that the "all sums" language in liability policies makes the defense and indemnify obligation of any insurer "joint and several." The insured may select the insurer to satisfy the obligation, but is to consider certain factors, including time on the risk and limits. The insured must provide notice of the claim to all insurers for which the insured has present addresses and, if requested by an insurer, provide information about any other policies "that would potentially provide coverage" for the claim.
The insurer selected to satisfy the defense and indemnity obligation may bring a claim for contribution against the other insurers that are potentially responsible. The amendments refer to the "total period of time" that insurers issued potentially applicable polices, but does not define the "total period of time." Allocation among insurers is to be determined by considering limits, time on the risk, and whether the policy provides "the most appropriate type of coverage" for the environmental claim. An insured that is either self-insured or "uninsured" is considered an insurer for purposes of allocation.
Lost Policies.
The amendments impose on both the insured and the insurer "minimum standards" for facilitating the construction of lost policies. The standards address the investigation required of the insured, the cooperation required of the insured and insurer, and the information that must be provided.
The amendments apply to insurance for all environmental claims, "whether arising before, on or after the effective date of the act," unless the statutory construction is contrary to the intent of the parties to the insurance policy.