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Foster-Gardner Inc. v. National Union Fire Insurance Co.8/3/1998
(dis. opn. of Griffin, J.), italics added.)
We also note that in response to the suggestion that "because it is in the nation's best interests to have hazardous waste cleaned up, our courts must construe insurance policies to provide coverage for such remedial work lest the insureds be discouraged from cooperating with the EPA," the Court of Appeal in Fireman's Fund, supra, aptly stated, "While we agree that it is in everyone's best interests to have hazardous wastes cleaned up, we do not agree that a California court may rewrite an insurance policy for that purpose or for any purpose. This is a contract issue, and imposition of a duty to defend CERCLA proceedings that have not ripened into suits would impose on the insurer an obligation for which it may not be prepared. . . . Whatever merit there may be to these conflicting social and economic considerations, they have nothing whatsoever to do with our determination whether the policy's disjunctive use of `suit' and `claim' creates an ambiguity." (See also AIU, supra, 51 Cal.3d at p. 818 ["The answer is to be found solely in the language of the policies, not in public policy considerations."].)
We conclude the Order did not initiate a "suit" within the meaning of the policies. Accordingly, it did not give rise to the insurers' duty to defend.
Disposition
The judgment of the Court of Appeal is reversed.
DISSENTING OPINION BY KENNARD, j.
I Dissent.
The majority holds that an administrative agency notice identifying the recipient as a party potentially responsible for environmental pollution, and directing the recipient to assume responsibility for remediation of the pollution, does not trigger an insurer's duty to defend the recipient under a comprehensive general liability (CGL) policy. I would hold that it does.
The issue that this court decides here is one that may arise in the context of either state or federal environmental laws. The issue may arise in the context of proceedings under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA; 42 U.S.C. § 9601 et seq.) when the Environmental Protection Agency (EPA), having identified a site contaminated with hazardous material and the parties potentially responsible for that contamination, sends a letter to each potentially responsible party (PRP) notifying that party of the EPA's findings. And the issue may arise under various state legislative schemes enacted to supplement and complement CERCLA, including our state's Carpenter-Presley-Tanner Hazardous Substance Account Act (Health & Saf. Code, § 25300 et seq.), when the state agency (here the Department of Toxic Substances Control) sends a similar letter (here an "Imminent and Substantial Endangerment Order and Remedial Action Order") directing a PRP to take or pay for remedial action.
Although this court has not previously addressed the issue of whether a PRP notification letter, under either CERCLA or its state law counterpart, triggers an insurer's duty to defend under a CGL policy, this issue has been addressed many times by other courts. The Courts of Appeal of this state have reached conflicting decisions concerning it, as have state and federal courts in other jurisdictions. By now, the issue has been thoroughly dissected and analyzed, and the arguments on each side are well developed and well known.
The majority draws its arguments and reasoning from the decisions of other courts (and from one Dissenting opinion) reaching the result it favors. Arguments and reasoning supporting the opposite Conclusion are readily marshaled in the same manner. In particular, the Supreme Courts of Iowa,
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