Cléa Liquard's commentary was featured in a Law360 piece covering the top general liability insurance rulings of 2022.
Cléa commented on a series of rulings concerning lead paint coverage disputes, referencing rulings by appeals courts in New York and Ohio that insurers for NL Industries and Sherwin-Williams, respectively, are responsible for those companies' portions of a $305 million settlement to remediate lead paint in homes in California.
Cléa explained that the New York Supreme Court's ruling in favor of NL Industries, which was affirmed by the First Department Appellate Division, was "detailed and well-reasoned."
She also described the decision as consistent with long-standing New York State law and other jurisdictions, which says that "even where the insured has knowledge of a risk and knowledge of possible harm from its products, that's not tantamount to intending harm, or even tantamount to knowledge of a substantial certainty of harm."
Cléa also commented on Conagra's unique challenge when a California appeals court said 48 of its insurers had no obligation to cover its portion of the settlement based on a state statute that precludes carriers from defending and indemnifying suits alleging willful misconduct. A three-judge panel of California's First District Court of Appeal concluded that California Insurance Code Section 533 could be applied to relieve insurers led by underwriters at Lloyd's of London, FM Global and Chubb units and Travelers, of covering the food giant's contribution to the abatement fund.
Cléa said it was a stretch to treat Conagra as if it were the company selling the paint. She pointed out that, unfortunately, the court's decision also has a negative impact on those adversely affected by the presence of lead paint in their homes.
"The notion that you're going to punish a company, that wasn't itself the actor, for stepping into the shoes of another is sort of perverse because it's simply diminishing the intended, compensatory effect of the underlying case by eliminating the availability of insurance to compensate the victims," Cléa noted.
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