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Monitoring Property & the Built Environment

Tonoga, Inc. v. New Hampshire Insurance Co.

Overview

Tonoga, Inc. v. New Hampshire Insurance Co. (N.Y. Ct. App., Jan. 6, 2022): The New York Court of Appeals held that two insurance companies were not obligated to defend their insured, a manufacturer, in lawsuits claiming the manufacturer polluted groundwater with “forever chemicals” because the pollution fell squarely within the policy’s exceptions. Between 1961 and 2013, Tonoga, Inc. manufactured materials with nonstick, heat-resistant synthetic polymers known as PFAS, coined “forever chemicals” due to their inability to break down in the environment and disastrous effects on human health. Facing six lawsuits alleging injury as a result of negligent discharge of the chemicals, Tonoga sought legal representation from two insurance companies through whom Tonoga held insurance policies during the time of the alleged contamination. The insurers refused, citing pollution exemptions in their policies. The court sided with the insurers despite acknowledging an insurer’s broad duty to defend its policyholders. Tonoga’s use and disposal of PFAS qualifies as pollution exempted from coverage even though the chemicals were not named as pollutants in the insurance policy and the chemicals’ negative effects were not understood at the time the policy was executed. Read the full decision here.

View all cases in the Judicial Trends in Public Health – February 15, 2022.

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