In an article published in Law360, Hunton & Williams LLP partners Walter Andrews, Malcolm Weiss, and I discuss two recent decisions in Tree Top Inc. v. Starr Indem. & Liab. Co., No. 1:15-CV-03155-SMJ, 2017 WL 5664718 (E.D. Wash. Nov. 21, 2017). There, the Eastern District of Washington rejected an insurer’s attempt to escape insurance coverage for a Proposition 65 lawsuit filed against juice-maker Tree Top Inc.
Tree Top’s insurer, Starr Indemnity and Liability Co., had argued that the Prop. 65 claims were not “first made” when the lawsuit was filed against Tree Top, but instead were “first made” over a year earlier when the Environmental Law Foundation sent a notice threatening a lawsuit under Prop. 65. According to Starr, since the claims were “first made” prior to the applicable insurance policy period, there was no coverage for the subsequent lawsuit. The district court rejected that view, holding that the ELF’s Prop. 65 notice did not qualify as a “claim” that must be reported to the insurer. The article explains that the Tree Top case offers at least three key lessons for companies and retailers seeking insurance coverage for claims brought under Prop. 65 and similar laws. Readers can access the full article here.