§17.9 - Trigger Theories Under Liability Policies

• Jurisdiction: Washington

§17.9 Trigger Theories Under Liability Policies

A CGL occurrence-based policy generally requires that property damage or bodily injury result during the policy period before an insurer is obligated to provide coverage. See, e.g., Firemans Fund Ins. Cos. v. Ex-Cell-O Corp., 750 F. Supp. 1340, 1348 (E.D. Mich. 1990) ([p]olicyholders bear the burden of proving an occurrence during each policy period). See related discussion in §17.8(1), above. In many cases involving toxic substances, property damage and/or bodily injury may not become manifest until a substantial time after the discharge of, or exposure to, the hazardous substance. During the time period between a policyholders first release or disposal of allegedly hazardous waste and the manifestation of either bodily injury or property damage, a policyholder frequently has obtained policies from several different insurers with different aggregate limits, deductibles, and exclusions. Thus, the question of which policy is triggered is of critical importance in determining the scope of insurance coverage.

(1) As applied to property damage claims

In the environmental context, Washington courts have applied the policy language directly to the facts of each case to determine what constitutes property damage and when such damage actually occurred. See, e.g., Walla Walla College v. Ohio Cas. Ins. Co., 149 Wn.App. 726, 204 P. 3d 961 (2009) (When damage from gasoline tank caused property damage after lapse of an insurance policy, there was no coverage even though the conditions allowing for the leak may have occurred during the policy period). Based on American National Fire Insurance Co. v. B & L Trucking & Construction Co., Inc., 134 Wn.2d 413, 951 P.2d 250 (1998), also discussed in §17.7(7), above, conventional wisdom in Washington is that the continuous trigger...