Defense Strategies and Insurance Coverage Issues in a ''Superfund'' Case

The ''absolute liability'' imposed by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) presents a new challenge to defense attorneys and insurance claims personnel. Discussion of the unique aspects of the CERCLA case shows their effect on defense strategies and insurance coverage issues. The issues of causation and state of the art are practically nonexistent in a CERCLA action, but several other areas are particularly important in both discovery and settlement. Important insurance coverage issues relate to the pollution exclusion, date of loss, and various other policy defenses that may preclude coverage for a CERCLA claim. However, it is important to note that alternative claims often are raised in a CERCLA lawsuit, and that a separate, but related, suit may also be filed by private individuals. Therefore, analysis of a CERCLA claim should include an analysis of these other potential causes of action as well.