Insurance Law Hawaii

South Carolina District Court Finds No Duty to Defend Under Hawaii Law

    Applying Hawaii law, the district court found the insurer had no duty to defend a suit for personal injury caused by environmental harm. Koppers Performance Chems., Inc. v. Travelers Indem. Co., 2022 U.S. Dist. LEXIS 71642 (D. S.C. April 18, 2022).

    From 1979 to 1982, Argonaut-Midwest Insurance Company (Argo) issued policies to Osmose Wood Preserving Co. of America, Inc. and Griffin Forest Industries, Inc. DBA Hawaii Wood Preserving Co, and DBA Osmose Pacific, Inc. a subsidiary. The 1979 Argo policy was issued pursuant to an application submitted by Triad Insurance Agency in Honolulu.

    On November 24, 2014, Philip Riley sued Koppers Performance Chemicals, Inc. aka Osmose Wood Preserving Co. of America. Riley alleged that he was a citizen of and resided in South Carolina and that Koppers manufactured the wood treatment chemicals (namely cremated copper arsenate (CCA)) that caused him to developer cancer due to exposure at his job. Nearly two years later, Koopers tendered the complaint to Argo. Koopers also provided one page from Riley's deposition where Riley testified that the "timeframe that I'm talking about" was "from '78 to '92, from the time I was born until I stopped working with CCA."

    Argo denied coverage because Koppers was not a named insured. Koppers eventually settled claims with Riley for $150,000. Koopers sued Argo to recover costs associated with defending and settling the underlying action. 

    The court first found that the Argo policies were governed by Hawaii law. The policies were obtained through a Hawaii broker and insured property exclusively within Hawaii. Riley was a citizen of and allegedly injured by Koppers' product in South Carolina. Therefore, there was no nexus between the Argo policies and South Carolina. 

    The court next held that the complaint did not trigger coverage under the Argo policies. The original complaint did not name any of the DBA entities or describe Koppers' Hawaii operations. The complaint did not allege bodily injury during the applicable policy periods from around 1979 to around 1982. Therefore, under Hawaii's complaint allegation rule, the duty to defend was not triggered by the original complaint. The duty to defend was limited to situations where the underlying pleadings alleged a claim for relief which fell within the terms for coverage under the policy. The complaint here contained no such allegations. The fact that Koppers submitted to Argo an excerpt from Riley's deposition along with the original complaint did not change this conclusion. 

    [Here, the court seems to ignore the extrinsic evidence rule utilized by Hawaii courts: if extrinsic evidence outside the pleadings favors the insured, if must be considered for purposes of determining a duty to defend. Dairy Roads Partners v. Island Ins. Co., Ltd., 92 Haw. 398, 421-22 (2000)].

    Accordingly, Argo had no duty to defend or indemnify Koppers regarding the underlying action. 

New York Court Denies Injunction to Prevent Out-of-State Suit

    The Appellate Division of the Supreme Court refused to grant an injunction to the insurer to prevent a pending suit in Washington state. North Am. Elite Ins. Co. v. Space Needle, LLC, 2021 N.Y. LEXIS 6792(N.Y. App. Div. Dec. 2, 2021).

    In 2019 Seattle based Space Needle, LLC procured a policy from Elite, a New Hampshire company authorised to sell insurance in the state of Washington. The policy covered business interruption with limits of $160 million and provided that the laws of the State of New York "shall govern the construction and interpretation" of the policy and that the parties submitted to the "exclusive jurisdiction" of New York State courts. 

    In March 2020, Space Needle notified Elite of a business interruption loss claim due to the city and state governments' COVID-related closure of the Space Needle to the public. Space Needle requested a coverage determination under Washington law concerning the policy coverage provisions and exclusions.    

    Elite sued in New York seeking a declaration that it owed no coverage to Space Needle for its COVID-related losses under the policy. Elite also moved for a preliminary injunction to prevent a similar suit from going forward in Washington. The Supreme Court denied Elite's motion because it did not show a likelihood of success on the merits or the balance of equities in seeking to enforce the New York exclusive forum selection clause.

    The Appellate Division agreed. As an insurer authorised to sell insurance in Washington, Elite was required to comply with the Washington Insurance Code's prohibition against choice-of-law and forum selection clauses in policies sold in Washington. The code provided that no insurance issued in Washington "shall contain any condition, stipulation or agreement (a) requiring it to be construed according to the laws of any other state or country . . . or (b) depriving the courts of this state of the jurisdiction of action against the insurer. . ." Elite did not demonstrate that the equities tip in its favor where it was attempting a blatant end run around of Washington's prohibition against choice-of-law and forum selection clauses. The clauses were void under the Washington law with which Elite agreed to comply. Elite should have known that by participating in the Washington insurance market, it had an obligation not to include such clauses. 

    

Hawaii Federal District Court Decides Choice of Law Dispute In Insured's Favor

    The federal district court, District of Hawaii, denied the insurers' motion to dismiss a claim asserted by the insured under Nevada's unfair practices statute. Puna Geothermal Venture v. Allianz Global Risks US Ins. Co., 2019 U.S. Dist. LEXIS 211661 (D. Haw. Dec. 5, 2019).

    Puna Geothermal's power plant was damaged on the Big Island when the Kilauea volcano erupted in May 2018. The plant has remained closed. The insurers denied the claim. Puna Geothermal sued the insurers, including an unfair practices claim under Nevada Revised Statutes sec. 686A.310 (1). The statute provided it was an unfair practice to misrepresent to insureds or claimants pertinent facts or policy provisions relating to any coverage at issue. The insurers argued that the unfair practices claim should be dismissed because Hawaii law, not Nevada law, applied. 

    The policies had a choice of law provision stating that, "[t]his policy shall be governed by the laws of the State of Nevada."

    Puna Geothermal argued that ties to Nevada included the policies were purchased by a Nevada entity. The insurers argued that the policy insured property located in Hawaii, a Hawaii partnership was an insured, and the decision to deny coverage was made in a third state. 

    The court noted that both states applied similar principles in deciding choice of law issues. First, when interpreting a policy, both states asked what a reasonable person in the position of insured would have understood the contract to mean. Second, both states also instructed courts to interpret contracts n a manner that effectuates the intent of the parties. Third, both the Hawaii and Nevada Supreme Courts looked to California law when their own law was silent on a particular issue. Under California law, sophisticated parties would not intend that the laws of multiple jurisdictions would apply to a single controversy having its origin in a single, contract-based relationship. 

    These principles supported a broad interpretation of the policies' choice-of-law clauses. An ordinary person reading that the policy was governed by the laws of the State of Nevada would expect Nevada law to apply to any dispute related to the agreement. 

    Therefore, the court read the choice-of-law provisions in the policies broadly as providing that Nevada law applies to any claims arising out of the parties' contractual relationship even if those claims were not contract claims. The choice-of-law clauses permitted Puna Geothermal to bring an unfair practices claim based upon the Nevada statute. The insurers' motion to dismiss was denied. 

    

Indiana Court Adopts Uniform, Not Site-Specific, Interpretation of Pollution Exclusion

   Where the insured faces environmental suits in several states, should the law governing the liability policy be "site-specific," meaning the law of each state in which allegations of injury or property damage arise governs the policy's interpretation, or "uniform," whereby a single state's law governs?  In Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Standard Fusee Corp., No. 49S04-1006-CV-318 (Ind., Dec. 29, 2010) (opinion here), the court favored a uniform interpretation.    

   Standard Fusee Corporation (SFC) manufactured emergency signaling flares.  The company was incorporated in Delaware and headquartered in Maryland.  SFC had operations in Maryland, Indiana, and Pennsylvania.  In 2002, SFC learned that a chemical it used in the production of flares had been discovered in groundwater samples at its former California facility.  More than 200 lawsuits were filed against SFC in California, but they were ultimately dismissed when it was determined that SFC never discharged the chemical there.  After SFC voluntarily tested its Indiana facility in 2004, however, it found potential contamination.  SFC then applied for and was granted inclusion in the state's voluntary remediation program. 

   SFC had CGL, excess and umbrella policies from various insurers.  SFC requested defense and indemnification from the insurers with respect to the proceedings in California and Indiana.  The insurers refused to provide coverage.

   SFC sued for declaratory judgment and moved for partial summary judgment, arguing that Indiana law governed the interpretation of the policies and that the insurers had a duty to defend.  The trial court granted the motion.  The Court of Appeals reversed, adopting a "site-specific" approach to choice of law, whereby Indiana law governed the interpretation of the policies with respect to the Indiana site and California law with respect to the California site.

   The Indiana Supreme Court reversed the Court of Appeals.  The uniform approach was more consistent with Indiana's choice-of-law jurisprudence and applied in cases involving multi-site, multi-state insurance policies.  In insurance contract cases, Indiana courts first attempted to determine the principal location of the insured risk.  If no such location existed, a determination was made as to which state had the most intimate contacts. 

   Here, SFC was headquartered in Maryland.  This suggested that Maryland was the principal location of the insured risk.  As the state with the most intimate contact, the court held that the substantive law of Maryland applied to the entire dispute.