PFAS Insurance Coverage: The Policyholder’s Roadmap to Recovery

First developed in the 1940’s PFAS, short for per- and polyfluoroalkyl substances, commonly referred to as “forever chemicals,” exist in more than 12,000 forms and are found in thousands of products including the Teflon non-stick coating in cookware to firefighting foams, food packaging, medical devices, cosmetics, clothing, and many others.  Because PFAS are ubiquitous, they affect everyone.  A recent study in the International Journal of Environmental and Public Health found PFAS in the blood of 97% of Americans tested.  Another 2020 study concluded that as many as 200 million Americans are exposed to PFAS in tap water.

PFAS is alleged to be dangerous to human health and a cause of liver damage, compromised immune systems and several forms of cancer.  As a result of these allegations and PFAS’s ubiquity, an avalanche of litigation has been unleashed against PFAS manufacturers and distributors through the supply chain.  Indeed, as of July 2023, over 15,000 claims had been filed nationwide against DuPont and its spinoffs Chemours and Corteva, and 3M, the major US manufacturers of PFAS.  A number of smaller PFAS manufacturers also face lawsuits.  By December 2022, 3M announced that, by the end of 2025, it would cease manufacturing PFAS.

Time Magazine reported that as of July 2023, DuPont, Chemours, Corteva and 3M had paid a total of nearly $11.5 billion for alleged PFAS contamination and estimated that total liability could exceed the over $200 billion that tobacco companies paid in the 1990s to settle litigation against them.

This mass of PFAS litigation has also unleashed an escalating wave of insurance coverage litigation and claims over PFAS.  Indeed, at least 14 insurance coverage lawsuits over PFAS have been commenced in 10 states – a number expected to mushroom in the coming years.  The number of PFAS claims far dwarfs these lawsuits.  Dramatic growth in both coverage litigation and claims over PFAS is expected.  Accordingly, both insurers and policyholders are retaining sophisticated coverage counsel.

This presentation will explore the most significant court decisions on PFAS coverage issues, provide a guide to registrants on the major coverage issues raised by PFAS claims under legacy and current insurance policies and offer strategies to policyholders for insurance recovery of PFAS claims.

Please join Pillsbury Winthrop Shaw Pittman LLP Senior Counsel Scott D. Greenspan and Partner Tamara D. Bruno, members of the firm’s PFAS Insurance Recovery Taskforce, as they address:

• Explanation of PFAS and summary of the underlying PFAS litigation – where the litigation currently is today and where it is likely heading (10 minutes)
• The Importance of CGL policies, especially older policies, to coverage for PFAS liability and the coverage they provide and other potentially applicable policies (10 minutes)
• Finding evidence of older CGL policies when they are missing or incomplete (5 minutes)
• Trigger of coverage and allocation of liability for PFAS claims – strategies for maximizing coverage (10 minutes)
• Overcoming pollution exclusions relied on by insurers as bars to coverage (10 minutes)
• Response to other insurer defenses and insurer actions against PFAS claims and coverage litigation – knowledge-based defenses and forum fights (10 minutes)
• Lessons learned from court decisions on insurance coverage for PFAS to date (5 minutes)

Who Should Attend:  In-house counsel, outside attorneys, insurance, environmental, compliance and other allied professionals interested in PFAS insurance coverage and developments

Program Level: Update

Prerequisites: None

Advanced Preparation: None