Seth Kagan Shares Insights at Perrin’s Environmental Risk Conference

Seth Kagan, VP, Head of Environmental Claims, recently brought his expertise to the Perrin Conferences Environmental Risk & PFAS Litigation Conference for a panel titled, “From PFAS to Other Toxic Torts – Coverage Challenges Persist.”

The following is Seth’s views on the evolving landscape of environmental claims and how historical patterns—particularly those surrounding asbestos—may be repeating with substances like Per- and polyfluoroalkyl substances (PFAS) and silica:

Because PFAS persists in the environment and its initial usage began prior to any knowledge or data of it being a potentially hazardous material, claims coverage is full of complexity that is constantly evolving.

While this poses a larger issue for carriers with older policies, which incepted prior to the development and inclusion of pollution exclusion clauses in Commercial General Liability policies, many other carriers are also dealing with PFAS related issues. Since PFAS were not a contemplated risk historically PFAS exclusions are a more recent development, this leaves an open exposure with respect to occurrence-based policies.

Seth explained that while carriers with claims-made and reported policies have a more finite timeline for exposure, they still have potential exposure. Particularly if they did not add PFAS exclusions to their policies and there is no retroactive date applicable to the coverage.

He, subsequently, turned the conversation toward the coverage issue similarities between PFAS and silica, lending the complexities to the way the plaintiff’s bar uses the same asbestos claim playbook for their lawsuits. Their clients, the claimants, similarly allege prolonged exposure in an occupational setting without protective equipment.

While there has been a lot of discussion about PFAS being the “new asbestos,” there is no definitive causal link between PFAS exposure and a particular disease. On the other hand, exposure to asbestos and silica is traceable to asbestosis/mesothelioma and silicosis, respectively.

Seth drew on the similarities related to how the plaintiffs’ bar is pursuing not just manufacturers but those in the stream of commerce related to the material (PFAS, asbestos, or silica). This could include distributors, wholesalers, employers, and manufacturers of ancillary products that could “exacerbate” the exposure to the material at issue.

For example, a diamond-tipped saw used to cut silica containing stone, could exacerbate the airborne silica if it doesn’t have a vacuum attachment or waterspout to reduce the amount of airborne material. This causes issues for underwriters who, otherwise, would not have contemplated such a risk for their insured. While carriers are starting to develop and utilize silica exclusions, due to the wide reach of such claims, it could become difficult to determine which risks or policies render such an exclusion.

The plaintiffs’ bar has decades of experience from asbestos litigation and began using similar causes of action for silica and PFAS related claims, creating issues for coverage. Since these injuries are over a prolonged period of time, depending on whether the policy is occurrence-based or claims-made, this could have initial ramifications on coverage, due to the date of exposure/injury.

The plaintiffs’ bar is also trying to fit both silica and PFAS claims into the strict Product Liability and Failure to Warn framework, circumventing the need to prove elements of typical negligence claims. They also tend to include counts of fraudulent concealment of the toxicity of the substance and conspiracy, related to the various parties’ “concerted effort” to hide the toxicity from the public. This poses additional coverage challenges since intentional torts and causes of action tend to not be covered.

Seth posits, rather than PFAS, could silica be the new asbestos? Due to the more acute nature of the injuries and the direct link to a specific disease, Seth believes increased silica litigation is to be expected and could be successful in proving damages and triggering policy coverage.

Learn more about our approach to Claims including our Claims Promise and Charter here: Claims – Aspen

The opinions expressed in this piece are solely those of the author and are intended for general informational purposes only. They do not represent the official views, policies, or positions of Aspen or its affiliates.