In our 500th post, we review a case in which time on the risk was found to be the proper allocation method for ongoing property damage. Bradford Oil Co., Inc. v. Stonington Ins. Co., 2011 Vt. LEXIS 102 (Vt. Sept. 11, 2011).

   Bradford Oil Company owned a Mobil station. Contamination was discovered at the site, which may have begun as early as the 1960's or as late as the end of the 1970's. Bradford paid for the investigation and clean up of the contamination, but the Vermont Petroleum Cleanup Fund (VPCF) reimbursed most of Bradford's expenses.

   Bradford sued for coverage for its cleanup liability under four commercial general liability policies issued by Stonington. The State, also a defendant, cross-claimed seeking reimbursement to the VPCF from Stonington. The coverage periods for the policies began on July 18, 1994, and continued through December 1, 1997, which was only a portion of the total time that contamination allegedly occurred. 

   Stonington stipulated to the existence of coverage, leaving only the allocation of costs and damages to be decided. Stonington filed for partial summary judgment, asserting that the time-on-the-risk allocation method should apply. Under this method, each triggered policy bore responsibility for damages in proportion to the time it was "on the risk," relative to the total time of triggered coverage.

   The trial court granted the motion, following Towns v. Northern Security Ins. Co., 964 A.2d 1150 (Vt. 2008). Townsheld the time-on-the-risk allocation was the most consistent with the continuous-trigger rule. Further, the allocation method allowed the risk to be spread to the maximum number of carriers, easily identifying each insurer's liability through a relatively simple calculation. Under this method, Stonington was only liable for 4/27 or 15% of the cleanup costs.

   On appeal, the State argued Towns should be limited and the joint and several liability allocation method should apply. Under this method, any policy on the risk for any portion of the period in which the insured sustained property damage was jointly and severally obligated to pay up to policy limits for the loss. The State argued Townsshould not apply when the plaintiff was the VPCF and not the insured. By statute, the State could recover cleanup costs when there was insurance coverage. The statute authorized the State to "seek reimbursement in instances where the land is covered by insurance, to the extent of the coverage." But here, the State stood in the shoes of the insured when it sued the insurer. There was no reason not to apply Towns merely because the State was involved.

   Accordingly, the time-on-the-risk allocation method applied and Stonington was properly granted summary judgment.