In the most recent opinion in the ongoing Marine Group litigation, Judge Acosta clarified two issues that recur in complex environmental insurance litigation: first, which party has the burden of proving that incurred defense costs were reasonable and necessary; and second, whether an insured can recover pre-tender defense costs.
Burden of Proving Reasonableness and Necessity
The issue of which party has the burden of proving, or disproving, that incurred defense costs were reasonable and necessary was addressed in Ash Grove Cement Co. v. Liberty Mut. Ins. Co. In that case, Judge Hernandez endorsed California's rule by holding that when" the insurer has breached its duty to defend, it is the insured that must carry the burden of proof on the existence and amount of the site investigation expenses, which are then presumed to be reasonable and necessary as defense costs, and it is the insurer that must carry the burden of proof that they are in fact unreasonable or unnecessary." Under the clear language of the Ash Grove opinion, a breaching insurer must prove the defense costs to be unreasonable and unnecessary, after the insured proves their existence and amount. Despite holding that this burden-shifting rule applies, Judge Hernandez's application of the rule was unclear, and several breaching insurers have questioned whether they do indeed have the burden of proving defense costs to be unreasonable and not necessary.
This question arose in Marine Group through a complicated motion to compel in which the relevancy of various documents was in question. In ruling on relevancy, Judge Acosta found that it was necessary to establish who has the burden on the issues of reasonableness and necessity. Judge Acosta endorsed the position taken by Judge Hernandez: that when a carrier has breached its duty to defend, the burden of proving the reasonableness and necessity of the fees shifts from the insured to the insurer. Thus, the insured's fees are presumed to be reasonable and necessary when an insurer has improperly breached its duty to defend. This is a win for policyholders, and should make it easier for insureds to recover fees when insurers have wrongfully refused to participate in a defense.
Another wrinkle in the Marine Group litigation is the presence of a paying insurer, Argonaut. Since early on in the defense, Argonaut has paid Marine Group's defense costs. Thus, most of the damages being sought are through a contribution action between insurers, and not a direct coverage claim. Marine Group, along with Argonaut, made the argument that since the claim is primarily a contribution action between insurers, the reasonableness and necessity of the fees was not at issue, but instead the issue is whether Argonaut acted as a reasonable insurer. Similarly, both parties made arguments under ORS 465.480(4)(d) that the common law of contribution was preempted and that the breaching insurers should be prohibited from questioning the defense costs incurred. Judge Acosta rejected this line of reasoning in holding that St. Paul could question the defense costs, but that it bore the burden of proving the fees to be unreasonable and not necessary.
Pre-Tender Defense Costs
While the Marine Group litigation primarily involves a contribution action between Argonaut and other insurers, Marine Group also has a direct contractual claim against its insurers for certain sums not paid by Argonaut. Some of these unpaid defense costs are pre-tender. In other words, they were incurred by Marine Group before it formally sent a letter to its insurers that detailed the claims faced and requested that a defense be provided.
Most states follow the rule that pre-tender defense costs cannot be recovered by an insurer; this underlines the importance of identifying, and tendering to, insurers at the earliest point of any litigation. Marine Group attempted to escape the strict application of the pre-tender rule by invoking the notice-prejudice rule, which does not allow an insurer to deny defense costs because of delayed notice, unless it can show that the delay caused prejudice to the insurer. Judge Acosta found the notice-prejudice rule to be inapplicable because the duty to defend did not arise until the tender occurred. Thus the court held that the notice-prejudice rule does not apply to pre-tender defense costs, because it applies only to covered claims.
Ultimately, Judge Acosta ruled that under Oregon law, pre-tender defense costs are not recoverable. This presents a particularly difficult situation for companies facing historic environmental liabilities. Typically, the only policies that cover historic pollution events were written before 1986. Many companies do not have readily available copies of these insurance contracts. Indeed, historic insurance archaeologists must often be retained to identify these policies. Judge Acosta's decision reinforces the rule that defense costs incurred while a party is looking for its insurance coverage are not recoverable, even to the extent that the delay does not meaningfully prejudice the insurers.