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Patricia O'Connell
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Laura Foggan Discusses Ninth Circuit Ruling that EPA Letters Trigger Pollution Coverage

October 11, 2013

Laura A. Foggan, chair of Wiley Rein’s Insurance Appellate Group, was quoted yesterday in Law360’s coverage of a federal appeals court’s refusal to rehear a ruling that pollution coverage was triggered by letters from U.S. regulators seeking information about and later notifying a policyholder of potential liability at a Superfund site.

The U.S. Court of Appeals for the Ninth Circuit—which ruled in favor of the policyholder on August 30—denied the insurer’s petition for rehearing yesterday, in Anderson Brothers Inc. v. St. Paul Fire & Marine Insurance Co.  Representing four leading insurance trade associations, Ms. Foggan and Wiley Rein Appellate partner Thomas R. McCarthy filed an amicus brief last month in support of St. Paul’s petition.

The case stems from pollution at a Superfund site in Oregon.  In its August 30 decision, the Ninth Circuit said St. Paul’s duty to defend Anderson Brothers against pollution claims was triggered by two letters from the U.S. Environmental Protection Agency (EPA) to the auto parts company.  The court ruled that the EPA letters—a so-called 104(e) letter and a general notice letter—qualified as “suits” under a state law known as the Oregon Environmental Cleanup Assistance Act (OECAA).

Wiley Rein’s amicus brief argued that the Ninth Circuit’s ruling evaded “serious constitutional questions” about the Oregon law’s retroactive effect on existing insurance contracts.  Ms. Foggan and Mr. McCarthy submitted the brief on behalf of the American Insurance Association, the Complex Insurance Claims Litigation Association, the National Association of Mutual Insurance Companies, and the Property Casualty Insurers Association of America.

In an interview with Law360, Ms. Foggan noted that no Oregon Supreme Court or appeals court ruling has yet decided whether a 104(e) letter or a general notice letter qualifies as a “suit” under general liability policies, leaving that issue open under Oregon common law.  The Ninth Circuit did not find any conflict between the meaning of “suit” under what it predicted Oregon’s common law to be, and under the OECAA, allowing it to sidestep important constitutional issues posed by the OECAA, Ms. Foggan said.

“This decision and the denial of rehearing leave many unanswered questions in Oregon law, including key questions about the constitutionality of the OECAA,” Ms. Foggan told Law360.