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Published: February 26th 2022
The Superior Court of Riverside County (California) entered judgment in plaintiff State's action that every excess liability policy in effect for any policy period during which a hazardous waste loss was occurring covered the entire loss sustained by the State, subject to the policy limits; that the policies could not be stacked; and that defendant insurers were entitled to a setoff for prior settlements. The State and the insurers appealed.
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The policies defined an occurrence to include a continuous or repeated exposure to conditions. The court held that the continuous injury trigger of coverage was applicable and that under the all-sums approach, every insurer that issued a liability policy for any period during which a continuous loss occurred was liable for the full extent of the loss up to the policy's limits. The court determined that the State was entitled to stack the policy limits of all applicable policies across all applicable policy periods. There was only a single occurrence, which was the deposit of hazardous waste at an unsuitable site. In light of the reversal of the trial court's no-stacking ruling, a challenge to the setoff ruling was moot. The State had no duty under Ins. Code, § 531, or case law to mitigate the loss, which the jury did not find to be willful under Ins. Code, § 533. Old documents pertaining to an alleged lost policy that were not acted on as true did not qualify as ancient documents under Evid. Code, § 1331. The documents also were not business records under Evid. Code, § 1271, absent evidence that they were made in the regular course of a business. The court reversed the judgment and remanded the matter for further proceedings.
