Insurance — expected or intended limitations

Listen to this article

Wisconsin Court of Appeals

Civil

Insurance — expected or intended limitations

Whether an insurer is liable for pollution damages from PCB releases is a question for the jury.

“We cannot conclude as a matter of law that NCR intended or expected with substantial certainty that its PCB releases would cause environmental harm. Considering the early focus on effluent limits, one could conclude that in the early 1970s the scientific community did not believe that all PCB discharges were harmful to the environment. The record does not indicate the amount of PCBs NCR was introducing into the Fox River. Further, there were, at the very least, unanswered questions concerning the potential effects of differing types of PCBs. Yet, there was mounting evidence that PCBs were harmful and, at some point, NCR clearly would have known or expected that releases of Aroclor 1242 would cause environmental harm. Some of this evidence was known or available while NCR was still using the product. Therefore, it is appropriate for a jury to determine what NCR actually knew or expected and when it gained that knowledge or expectation. The summary judgment motion is reversed and the circuit court shall vacate the judgment for payment of the policy limits.”

Affirmed in part and Reversed in part.

Recommended for publication in the official reports.

2011AP192 NCR Corp. v. Transport Ins. Co.

Dist. III, Brown County, Zuidmulder, J., Hoover, J.

Attorneys: For Appellant: Halfenger, G. Michael, Milwaukee; Mason, Lawrence David, Chicago, IL.; Cirincione, James F., Milwaukee; Lee, John A., Chicago, IL; For Respondent: Burnett, R. George, Green Bay; Conway, Gregory B., Green Bay; Duke, P. Benjamin, New York; Buchanan, John G., III, Washington D.C.