This is an opinion about a complex insurance coverage dispute. The court ducks the main issue and deals with the rest predictably.
The ADEQ investigated TCE pollution and blamed Nucor. That triggered a class action. Nucor settled it and then fought with its insurers about which of them should contribute how much to its defenses and to the class-action settlement. After a protracted trial on many issues, basically (and inevitably in these cases) everybody appealed everything.
The first issue this opinion addresses is whether a Wausau policy covered claims for diminution of property value “because of the stigma of being above groundwater containing TCE.” Apparently the claim was that houses were worth less. Wausau’s policy covered “physical injury to or destruction of tangible property” or loss of use. But actual property-damage claims had been thrown out of the class action, leaving only these “stigma claims.” So Nucor argued, according to the court, that “the policies do not require the property to be damaged; but only that if there was a claim for property damage, any resulting damages are covered by the policies.” (That’s what it says; we trust that Nucor’s argument – and its punctuation – were somewhat more coherent.)
The court spends a couple of pages discussing cases Nucor cited that there doesn’t have to be property damage and cases Wausau cited that there does. Then, in a classic Division One swerve, it announces that “we do not need to resolve” that issue. Why not? Because the stigma claims were “too unrelated to property damage to require indemnity under Wausau’s policy.” The theory seems to be – though the court doesn’t says so – that, even if Nucor were right that “damages resulting from property damage” don’t actually have to result from actual property damage, there must nevertheless be some degree of relationship between the claim and effect on the property caused by the negligence.
What relationship? What degree? What rules or principles does this establish by which people in the future can figure out what their coverage is – as opposed to making that difficult or impossible to know? Don’t look for them here. And since when does an “even if” argument become the primary one? How do you even get that far if “physical injury to or destruction of tangible property” actually means “physical injury to or destruction of tangible property”?
In any event, the court uses this “reasoning” to affirm the trial court’s ruling that Wausau didn’t cover the stigma claims.
The next issue was whether Wausau should have defended Nucor in the ADEQ proceeding. Wausau had refused since its policy said it would defend “any suit against the insured seeking damages.” Nucor argued that getting a PRP letter is enough. Since other jurisdictions differ on whether that’s a “suit” the court found the policy ambiguous. From there you can guess the rest but it takes the court six pages to get there: a PRP letter qualifies as a “suit” to trigger the defense obligation.
Next, Wausau, having contributed to the defense of the class action, sought contribution from Nucor’s other insurers. Nucor opposed that (because it had settled with some of those insurers, in the process agreeing to defend them), arguing that Wausau had to pay indemnity first. The court says no, that is not a prerequisite to the normal rules of contribution among insurers.
The remainder of the opinion covers issues, largely fact-specific, regarding the allocation of costs among the insurers and how to handle the fact that one had become insolvent. Its not clear why these weren’t covered in the memorandum opinion that addresses the rest of the issues raised by these appeals.