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Foster-Gardner Inc. v. National Union Fire Insurance Co.8/3/1998
EPA's actions."].)
For many courts that conclude an administrative action is a "suit," " f critical importance is the creation of the administrative record and the role it may play in future litigation. Documentation sought by the EPA, and which [the insured] must produce under the force of law, will determine the amount and type of waste generated by [the insured] and discharged onto the site. Given the strict liability stance of CERCLA, this information is all that is needed to establish both the fact and proportional share of [the insured's] liability at the site. [ ] Moreover, because the EPA may implement any investigatory and remedial action it deems necessary at the site, subject only to an abuse of discretion review, the total cost of the project will also be determined before litigation is brought. The significant authority given to the EPA in such matters allows it essentially to usurp the traditional role of a court of law in determining and apportioning liability. Such matters are concluded by the EPA before the action is ever brought to court." (Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., supra, 519 N.W.2d at pp. 871-872, italics omitted; Aetna Casualty & Surety Co., Inc. v. Pintlar Corp., supra, 948 F.2d at p. 1516 ["Unlike the garden variety demand letter, which only exposes one to a potential threat of future litigation, a PRP notice carries with it immediate and severe implications. Generally, a party asserting a claim can do nothing between the occurrence of the tort and the filing of the complaint that can adversely affect the insured's rights. However, in a CERCLA case, the PRP's substantive rights and ultimate liability are affected from the start of the administrative process."]; Avondale Indus., Inc. v. Travelers Indem. Co., supra, 887 F.2d at p. 1206; Morrisville Water & Light Dept. v. United States Fidelity & Guar. Co., supra, 775 F. Supp. at p. 733; Hazen Paper v. U. S. Fidelity and Guar., supra, 555 N.E.2d at p. 581.)
Other courts have stated that "Coverage should not depend on whether the EPA may choose to proceed with its administrative remedies or go directly to litigation." (Aetna Casualty & Surety Co., Inc. v. Pintlar Corp., supra, 948 F.2d at p. 1517.) "If the threat is clear then coverage should be provided." (Id. at p. 1518.)
In response to the concern that "a decision in [the insurer's] favor might blur the distinction between `claim' and `suit' evidenced in insurance policies," one court has stated, "we wish to emphasize that this opinion should in no way be viewed as intimating that every request for relief should be considered the initiation of a suit that the insurers are obliged to defend. Rather, our determination on this issue is made primarily based on the unique aspects of CERCLA actions and the authority given to EPA under the statute. . . . Accordingly, we do not disturb the basic claim/suit distinction contained within the subject insurance policies." (Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., supra, 519 N.W.2d at p. 871, fn. 13.)
Finally, courts have relied on certain policy considerations, such as the need to encourage prompt and efficient hazardous waste cleanup. " f the receipt of a PRP notice is held not to trigger the duty to defend under CGL policies, then insureds might be inhibited from cooperation with the EPA in order to invite the filing of a formal complaint. . . . A fundamental goal of CERCLA is to encourage and facilitate voluntary settlements. . . . It is in the nation's best interests to have hazardous waste cleaned up effectively and efficiently." (Aetna Cas. & Sur. Co., Inc. v. Pintlar Corp., supra, 948 F.2d at p. 1517; Avondale Indus., Inc. v. Travelers Indem
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