ARTICLE
25 September 2008

Vermont Adopts ´Time Of Risk´ Approach In Environmental Case.

MM
Morrison Mahoney LLP

Contributor

Morrison Mahoney LLP
Even as briefing has begun before the Massachusetts Supreme Judicial Court with respect to the issue of allocation, Vermont has joined the growing number of Northeastern states adopting a "time on the risk" approach in long-tail cases
United States Insurance

Even as briefing has begun before the Massachusetts Supreme Judicial Court with respect to the issue of allocation, Vermont has joined the growing number of Northeastern states adopting a "time on the risk" approach in long-tail cases. In its first comprehensive assay into the murky world of environmental jurisprudence, the Vermont Supreme Court has ruled in Towns v. Northern Security Ins. Co., 2008 VT 98 (Vt. August 1, 2008), that (1) a continuous trigger is appropriate, not "manifestation;" (2) the own property exclusion does not apply to groundwater contamination; (3) even de minimis levels of environmental contamination constitute "property damage;" and (4) a waste hauler's use of debris from his business to redevelop his personal home is not subject to the "business pursuits" exclusion in a homeowner's policy.

Vermont is an unusual state within which to litigate environmental coverage issues. Unlike states in southern New England, Vermont lacks the type of heavy industry that have historically generated significant numbers of environmental claims in the past. On the other hand, insurers for the most part have been denied the opportunity to include pollution exclusions by reason of regulations followed by Vermont regulators since the early 1970s. Even so, there has been a relative dearth of clear appellate case law construing the availability of insurance coverage for such claims. It will be interesting to see how this latest ruling impacts the scope of future coverage controversies in the Green Mountain State and whether the state Supreme Court's adoption of a "time on the risk" approach will influence the attitude of northern New England states whose Supreme Courts have yet to rule on allocation issues, such as Maine and Massachusetts.

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