Finishing off my discussion of Whittaker Corp. v. Am. Nuclear Insurers, in which historic owners of property sought insurance coverage for costs associated with the property being declared a superfund site:
Having found that Endorsement 112 could not be considered, the court returned to the question of whether ANI had a duty to defend under the Facility Form. The court addressed three issues, all of which are so well-established under Massachusetts jurisprudence that there is no need to tarry over them.
First, the court held that the demand from the EPA that the plaintiffs investigate the contamination, and its accompanying warning of potential liability for response costs, gave rise to a duty to defend.
Second, the court then turned to Exclusion (f),the owned property exclusion, which barred coverage for "property damage to any property at the location." It held that the exclusion does not exclude coverage for costs incurred to remediate or prevent migration of contaminants off-site.
Third, the court held that the EPA notice, which demanded investigation and remediation of contamination "that exists at or near the Site," but did not directly allege any off-site migration, gave rise to a duty to defend because it raised the possibility that the owned property exclusion did not apply.