Environmental Insurance and Financial Institutions

Abstract

Environmental insurance transfers to an Insurer all or part of a financial institutions loss resulting from legal liability for pollution conditions, or loss resulting from a borrower loan default and the discovery of a pollution condition on property that serves as collateral for a loan. Today, several major environmental insurers offer diverse, broad and flexible insurance policy terms and conditions. The placement of environmental insurance can add positive value to the financial institution’s balance sheet by providing more protection to the financial institution than the traditional environmental due diligence methods and loan underwriting process affords.     

The Many Flavors of Environmental Insurance

The market for environmental impairment liability (EIL) and pollution legal liability (PLL) insurance is approaching its thirtieth anniversary. During those years, the market has developed from a one-size-fits-all approach that consisted of a couple insurers to one that can specifically tailor coverages to the needs of a specific transaction or risk. While increases in capacity and flexibility have created diverse choices for policyholders, failure to understand the nuances presented by the current policy forms presents both challenges and opportunities. This article discusses how the EIL/PLL market has developed and highlights some of the more substantive differences in policy forms that are currently available.     

环境侵权法律制度对环境责任保险的影响

环境侵权责任风险是环境责任保险产生的前提和基础。环境责任法律的具体制度安排及其执行,对环境责任风险的大小及其可预测程度产生了重大影响。我国现有环境侵权法律存在因果关系证明严苛、赔偿制度不健全、公益诉讼制度缺乏以及法律执行不力等缺陷,致使环境污染企业因侵权责任风险太小而普遍缺乏购买责任保险的内在动力,严重制约着环境责任保险制度的发展。     

我国环境侵权责任保险制度之构建

责任社会化的提出是现代法学对现代社会的积极回应。环境侵权责任保险是基于投保人与保险人之间的环境侵权责任保险合同,由保险人在特定的环境侵权赔偿责任发生时,向受害人赔付一定金额的一种责任保险制度。环境侵权责任保险是责任社会化理论在环境侵权赔偿问题上的具体应用。在当代中国,解决环境纠纷的制度设计矛盾重重,尤其是受害人补偿问题。建构中国的环境侵权责任保险制度将是解决这些问题的现实路径。     

Environmental Insurance Policies Are Negotiated Contracts and Not Commodities

Given the current economic climate, the high costs associated with pollution incidents and the resultant remediation and third-party bodily injury and property damage claims emphasizes the importance of ensuring that our clients have environmental policies in place to protect their interests when most General Liability and Property policies cannot. However, as a number of recent court decisions have highlighted, simply procuring a dedicated environmental policy is not enough. Whether acting in the role of attorney, risk manager, or broker, it is of paramount importance that we truly understand the risks inherent in our clients' business so that we can provide them with the best and broadest coverage available. Further, this understanding allows us to properly inform our clients as to the extent of their coverage so that they can guide their business decisions accordingly.     

环境责任保险为何叫好不叫座

环境侵权立法与环境责任保险之间恰似皮与毛的关系，而在我国环境侵权立法远不成熟的情况下，皮之不存，毛将焉附     

Environmental Insurance: A Risk Management Tool for Real Estate

Traditional risk management tools including contract allocation and reliance upon statutory defenses or government releases can be incomplete, contentious, and costly solutions to address risks associated with environmental liability and cleanup obligations in real estate transfer and property ownership. Such traditional methods leave environmental risk for the interested parties in the real estate transaction to bear over time and bring added new risks to the parties. Environmental insurance transfers all or part of the risk to a third-party insurance company (insurer) that is not a participating party in the transaction, thereby taking insurable environmental risk out of the transaction. Further, environmental insurance can add positive value to the transaction by bringing necessary risk identification and validation, and loss minimization and claims handling expertise to the transaction by virtue of the underwriting and claims management process, and add the financial strength and expertise of a qualified insurer. Insurance is often perceived by lenders, investors, developers, contractors, tenants, and future purchasers as a positive assurance against environmental risk associated with the property, allowing business relationships and financing to proceed more smoothly. In this way, environmental insurance serves as a more comprehensive and complete risk management tool for the real estate transaction and property ownership.     

Ameron International: Expanding Insurance Recovery for Administrative Environmental Proceedings

In Ameron Int'l Corp. v. Ins. Co. of Pennsylvania, the California Supreme Court issued its long-awaited reconsideration of Foster-Gardner v. National Union Fire Ins. Co. which adopted the minority position that administrative notice letters are not “suits” that trigger a CGL insurer's duty to defend. In an important development for insurers and policyholders alike, Ameron limited Foster-Gardner, holding that an administrative process that resembles a court proceeding is a “suit” insurers must defend. This article surveys the majority rule, Ameron, and Ameron's possible impact in minority rule jurisdictions with Foster-Gardner-like precedent.