Illinois Appellate Court Finds Insurer Estopped From Denying Coverage Where Declaratory Judgment Suit Filed Too Late

In an unpublished opinion from the Illinois Appellate Court, Country Mutual Insurance Co. v. Badger Mutual Insurance Co., 2018 IL App (1st) 171774-U, the court held that because an insurer breached its duty to defend and failed to file a declaratory judgment action before the underlying lawsuit was resolved, it was estopped from denying coverage for the default judgment entered against its insured in the underlying lawsuit.

The underlying lawsuit concerned a claim that plaintiff’s property allegedly sustained damage when the insured performed work on the plaintiff’s residence. The complaint in the underlying lawsuit did not specifically identify when the property damage occurred. However, the complaint did state that the insurer’s investigator alerted it in 2010 that the property damage was due to the insured’s faulty work during the policy period. The insurer did not defend the insured during the action and a default judgment was entered against the insured.

The insurer filed a declaratory judgment action days after the default judgment was entered. The insurer sought declarations that the property damage occurred outside the policy period, one or more exclusions precluded coverage, and the insurer had no obligation to defend the insured. In their counterclaim, the underlying plaintiffs alleged that the insurer hired a third party to investigate the property damage prior to the underlying lawsuit. The report informed the insurer that the insured’s faulty workmanship during the policy period caused the property damage. Therefore, they argued, the insurer had an obligation to defend the insured and was estopped from denying coverage for the default judgment.

The court acknowledged that estoppel only applies if the insurer breached its duty to defend, and therefore first analyzed the insurer’s duty to defend. The court found that the underlying complaint raised the potential that the underlying plaintiff suffered damage resulting from the insured’s work, as it alleged that the insured’s work caused the underlying plaintiff’s building to sustain “property damages, including water damage.” The court also found that the complaint created the potential that the damage occurred between 2005 and 2010, which overlapped with the insurer’s policy period. As such, the complaint did not foreclose the possibility that the damage occurred during the policy period, and the insurer had breached its duty to defend.

Turning to estoppel considerations, the court reasoned that the insurer breached its duty by waiting until after the default judgment was entered to file a declaratory judgment action. The court criticized the insurer for waiting to bring a declaratory action until eight days after the default judgment was entered. Instead, the court required an insurer to file a declaratory judgment “before the underlying proceeding is resolved.”

The insurer argued that the issue of whether damage occurred during the policy period was not subject to estoppel as it did not constitute a “policy defense.” The court rejected that argument and determined that estoppel precludes the insurer from denying coverage, and does not depend on whether the insurer is raising a “policy defense.” As the insurer was estopped from denying coverage, it was responsible for the full amount of the default judgment.

Wisconsin Court Enforces Breach of Contract Exclusion in E&O Policy

In its recent decision in Crum & Forster Specialty Ins. Co. v. GHD Inc.,2018 U.S. Dist. LEXIS 111827 (E.D. Wisc. July 5, 2018), the United States District Court for the Eastern District of Wisconsin had occasion to consider the application of a breach of contract exclusion in a professional liability policy.

Crum’s insured, DVO, was sued in connection with its contract to construct a biogas converter mechanism.  The underlying suit alleged a sole cause of action; namely, breach of contract based on DVO’s failure to have fulfilled its obligations to design the mechanism to specification.

Crum initially provided DVO with a defense to the lawsuit, but later denied coverage on the basis of an exclusion applicable to any claim:

Based upon or arising out of

1. breach of contract,  whether  express or  oral, nor any “claim” for breach of an implied in law or  an implied  in  fact contracts,  regardless  of whether “bodily  injury”,  “property  damage”, “personal    and   advertising    injury”    or   a “wrongful act” is alleged.

DVO argued that the exclusion effectively rendered the policy’s coverage illusory, since the basis of any errors and omissions claim is the failure to fulfill a contractual obligation.

In considering this question, the court observed that an entity performing professional services has more than contractual obligations – it has duties to exercise reasonable care in performing its work that are owed to the world at large.  These duties, explained the court, are what is insured under a professional liability policy.  The court cited as an example personal injuries or property damage resulting from DVO’s negligent errors or omissions in performing its design work.  Such damages are exactly what is insured under a professional liability policy.  By contrast, the breach of contract exclusion, reasoned the court, manifested Crum’s intent to not be the guarantor of DVO’s work.  As the court noted, “Crum  & Forster agreed  to  insure DVO  against  liability it  incurred  to third parties  for  its negligent  error  or omissions;  it  chose not  to insure  DVO for  liability  it incurred  to  its own  customers  for failing to meet its contractual obligation.”

The court concluded, therefore, that the exclusion was a reasonable restriction of coverage in a professional liability policy and not overly broad as drafted, at least in the context of the underlying suit.

New Jersey Senate Advances Bad Faith Legislation

New Jersey is the latest to join the list of states that have enacted or are considering enacting legislation that would authorize policyholders to file civil suits against first-party insurers for unfair business practices, such as unreasonably delaying or denying benefit payments, engaging in false advertising, or otherwise committing a wide range of unfair or deceptive practices.

On June 7, the New Jersey Senate passed a bill entitled the New Jersey Insurance Fair Conduct Act. The Act would create a new statutory cause of action pursuant to which a first-party insurer would be liable for bad faith based on a single statutory violation, thereby entitling an aggrieved policyholder to collect triple damages and attorneys’ fees. The proposed legislation is now before the state’s General Assembly for further consideration.

Under current New Jersey common law, a policyholder can recover bad faith damages against a first-party insurer only if the policyholder is able to demonstrate that the insurer (i) did not have a reasonable basis for declining coverage, (ii) recklessly disregarded the existence of a reasonable basis for providing coverage, or (iii) unreasonably delayed processing a claim. Pickett v. Lloyd’s, 131 N.J. 457 (1993). Under those scenarios, a prevailing policyholder can recover up to the limits of its policy as well as consequential damages arising from the insurer’s breach of its common law duty. New Jersey law also affords a court discretion to award a prevailing policyholder the amount it incurred in prosecuting its coverage claim. Conversely, there is no authority granting treble damages.

To the extent a policyholder meets its burden of proof under the common law standard, the burden shifts to the insurer. Where the insurer is able to show that insurance coverage is “fairly debatable,” it will defeat the insured’s claim of bad faith. Pursuant to Pickett, “[u]nder the ‘fairly debatable’ standard, a claimant who could not have established as a matter of law a right to summary judgment on the substantive claim would not be entitled to assert a claim for an insurer’s bad-faith refusal to pay the claim.”

The proposed Act would greatly reduce a first-party policyholder’s burden of proof by eliminating the need to demonstrate either that the insurer knew that its conduct was unreasonable or that the insurer handled the policyholder’s claim in a way that was indicative of its general business practices. Instead, a policyholder simply would need to demonstrate that the insurer engaged in prohibited conduct, such as (i) misrepresenting and falsely advertising its policy contracts, (ii) promoting false information and advertising generally, (iii) committing defamation, (iv) discriminating against the policyholder, (v) employing unfair claim settlement practices and (vi) failing to maintain complaint handling procedures.

Notwithstanding its specificity as to the types of actions that would be illustrative of an insurer’s bad faith, the Act as it is presently written does not define what constitutes the “unreasonable” delay or denial of a claim for benefits, and it does not include good-faith protections for insurers that exist under the current law.

Traub Lieberman Straus & Shrewsberry will continue to closely monitor the Act as it makes its way through the legislative process and update this blog post, as appropriate, in order to keep our friends and clients apprised of key developments.

Court Holds FLSA Exclusion In E&O Policy Inapplicable to Au Pair Class Action

In its recent decision in Cultural Care, Inc. v. AXA Ins. Co., 2018 U.S. Dist. LEXIS 100679 (D. Col. June 15, 2018), the United States District Court for the District of Colorado, applying Massachusetts law, had occasion to consider the scope of a policy exclusion in a professional liability policy applicable to claims brought under the Fair Labor Standards Act and related wage laws.

AXA’s insured, CCI, is a U.S. State Department designated sponsor of au pairs brought in from foreign countries. It was named as a defendant in a class action lawsuit alleging that it conspired to set the weekly pay rates for the au pairs below market rate in violation of state and federal law, including the FLSA.  The suit set forth several causes of action, including ones based on RICO, restraint of trade, constructive fraud and negligent misrepresentation.

AXA denied coverage under the professional liability policy it issued to CCI primarily on the basis of an exclusion applicable to any “claim or Suit based upon or arising out of any violation of the Fair Labor Standards Act or any similar federal, state or local law pertaining to working conditions, hours, employee benefits or wages.” AXA argued that the gravamen of the underlying suit was alleged violations of the FLSA and comparable state laws, and that the cause of action for negligent misrepresentation flowed from these violations.

In considering the exclusion, the court rejected AXA’s argument that Massachusetts law permits an insurer to look at the “gravamen” or the “essence” of a complaint. Rather, the court observed that Massachusetts law requires examination of each of the causes of action independently.  The court further reasoned that the exclusion did not apply to claims or suits that merely include a cause of action based on a violation of the FLSA or comparable laws, but rather that the exclusion applies only when a claim or suit arises exclusively or entirely from a violation of the FLSA or similar laws.  In other words, as long as one cause of action potentially escapes the exclusion, AXA is required to provide a defense, regardless of whether the suit can be characterized primarily as an FLSA claim.

Based on this reasoning, the court concluded that the claim in the underlying suit for negligent misrepresentation potentially escaped the exclusion because it could be pled independently of the wage-related claims given the specific allegations in the complaint.  As such, the court held that AXA breached its defense obligation by denying coverage for the suit

Illinois Federal Court Holds That DOJ Subpoena Qualifies As A “Claim” For A “Wrongful Act”

In Astellas US Holding, Inc. v. Starr Indem. & Liab. Co., 2018 U.S. Dist. LEXIS 89725 (N.D. Ill. 2018), the U.S. District Court for the Northern District of Illinois held that a government-issued subpoena can qualify as a demand for non-monetary relief, thereby constituting a “Claim” against an insured. Astellas US Holding, Inc. (“Astellas”), a US based pharmaceutical company, sued its insurers for denying coverage for the expenses incurred in responding to a government-issued subpoena and investigation. The government’s investigation focused on potential kickbacks where patients receiving financial assistance from pharmaceutical companies like Astellas were also using those companies’ products. The U.S. Department of Justice issued a subpoena to Astellas demanding certain documents relating to the alleged Federal health care offenses. The subpoena stated that failure to comply exposed Astellas to liability in judicial enforcement proceedings and punishment for disobedience.

Astellas gave timely notice of the subpoena to its primary insurer and two excess insurers. The insurers denied coverage for the costs associated with responding to the subpoena, arguing that the subpoena did not constitute a “Claim” under the policy as it was not a demand for monetary, non-monetary or injunctive relief. Instead, the insurers argued, it was merely a request for production of documents. Astellas subsequently complied with the government subpoenas and incurred defense costs that exceeded the insurers’ limits of liability.

Astellas filed suit against all three insurers seeking a declaration that they owed reimbursement for the defense costs incurred, and all three insurers moved to dismiss the complaint. The motions argued that the subpoena did not constitute a “Claim” for a “Wrongful Act” as required by the policy.

The policy defined “Wrongful Act” as “any actual or alleged breach of duty, neglect, error, misstatement, misleading statement, omission or act by the Company.” Although the subpoena did not expressly identify the “Wrongful Act” committed by Astellas, the DOJ allegedly told Astellas that its donations to charities violated the law. As such, the court determined that the subpoenas concerned a potential “Wrongful Act” as the government was investigating Astellas for allegedly unlawful acts. This was apparent from the language of the tolling agreement entered into between the DOJ and Astellas, which addressed the investigation of a “possible violation” of the law.

The court also found that the subpoena qualified as a “Claim” pursuant to the policy’s definition of that term. The policy defined “Claim” to include a demand for non-monetary relief, as well as a written request to toll the statute of limitations. The court held that the subpoena sufficiently demanded Astellas to appear and produce specific documents, and therefore sought some form of “relief” from Astellas. To that point, the DOJ had the ability to initiate enforcement proceedings for Astellas’ non-compliance, thereby making the subpoena more than an informal request for information. The subpoena also was a written request that Astellas toll the statute of limitations as the government required Astellas to enter a tolling agreement halting the statute of limitations during the investigation of possible violations. The court therefore denied the insurers’ motion to dismiss.

California Supreme Court Holds Insured Entitled to Coverage Under CGL Policy for Negligent Hiring

In its recent decision in Liberty Surplus Ins. Corp. v. Ledesma & Meyer Constr. Co.,2018 Cal. LEXIS 4063 (Cal. June 4, 2018), the Supreme Court of California addressed the question of whether an insured’s negligent hiring, retention and supervision of an employee who intentionally injured a third-party can be considered an occurrence under a general liability policy.

The insured, L&M, was the construction manager on a project at a middle school in California. It was alleged that one of its employees sexually abused a thirteen year old student during the course of the project. The student later brought a civil suit against L&M based on its negligent hiring, retention and supervision of the employee-perpetrator.

L&M’s general liability insurer, Liberty, denied coverage on the basis that because the underlying incident was not accidental, the derivative negligence claims against L&M necessarily were not caused by an occurrence either.  In the ensuing coverage litigation, the United States District Court for the Eastern District of California held in Liberty’s favor, reasoning that L&M’s hiring, supervision and retention of the employee were not the injury-causing acts.  On appeal, the United States Court of Appeals for the Ninth Circuit elected to certify this question to the California Supreme Court.

In considering the question, the Court began its analysis by revisiting the distinction between coverage for a perpetrator of sexual assault and the employer of the perpetrator, as explained in its 2010 decision in Minkler v. Safeco Ins. Co. of America, 49 Cal. 4th315 (Cal. 2010).  Minklerestablished that while the perpetrator is not entitled to coverage for his or her misconduct, L&M’s allegedly negligent hiring, retention, and supervision were independently tortious acts” and therefore had to be considered independently for coverage.  The Court agreed that the district court properly distinguished between the perpetrator’s liability and L&M’s liability, but failed to properly analyze the facts.

Specifically, the Court rejected the district court’s analysis on the issue of causation.  Coverage for L&M, explained the Court, turned “on whether the damages for which the insured became liable resulted – under tort law– from covered causes.” (Emphasis in original.). That is, the inquiry must be whether the insured’s conduct is a “substantial factor” in bringing about the plaintiff’s injury.  While the district court found that L&M’s alleged negligence was too attenuated to be the cause of the plaintiff’s injury, the Court disagreed, citing to numerous California decisions in which an employer’s negligence can be considered a substantial factor in a sexual molestation claim, so long as the negligence is the starting point of the series of events leading to the act of molestation.  The Court found that L&M’s negligence was, in fact, the starting point for the underlying misconduct.

After distinguishing numerous cases relied on by Liberty and the district court, the Court discussed the societal implications of allowing coverage for the derivative claims against employers resulting from sexual abuse committed by employees.  The Court did not see a public policy reason that would preclude coverage for such claims.  On the contrary, it recognized economic and practical reasons for allowing such coverage, explaining:

Liberty’s arguments, if accepted, would leave employers without coverage for claims of negligent hiring, retention, or supervision whenever the employee’s conduct is deliberate. Such a result would be inconsistent with California law, which recognizes the cause of action even when the employee acted intentionally.  The requirements for liability of this kind are not easily met, but they are well established.  Absent an applicable exclusion, employers may legitimately expect coverage for such claims under comprehensive general liability insurance policies, just as they do for other claims of negligence.

Illinois Court Finds Allegations of Intentional Misconduct Precludes E&O Coverage

Ill. State Bar Ass’n Mut. Ins. Co. v. Leighton Legal Grp., LLC¸ 2018 IL App. (4th) 170548, arose from underlying litigation wherein the plaintiffs, beneficiaries of a trust, filed suit against the insured, an attorney and co-trustee for the trust.  The complaint contained various causes of action relating to the insured’s creation of a second trust that allegedly deprived the plaintiffs of the benefits due to them through an original trust of which they were beneficiaries.  In sum, the plaintiffs contended that the insured took the principal of the first trust to which the plaintiffs were beneficiaries and “poured” it into a second trust created by the attorney.  Although the plaintiffs were also beneficiaries of the second trust, they alleged that it contained materially different terms and created a self-compensation scheme for the insured.  To that point, the insured had appointed himself as a co-trustee under the second trust, eliminated the requirement to use a qualified financial institution as a co-trustee, and included a clause that invalidated a gift to a beneficiary that unsuccessfully challenged the validity of a testamentary document.

The underlying complaint filed by the plaintiffs was replete with allegations of willful conduct by the insured in carrying out the scheme.  The Illinois State Bar Association Mutual Insurance Company (“ISBA”) denied coverage to the insured asserting that the intentional conduct alleged in the complaint was excluded from coverage.  More specifically, ISBA claimed that an exclusion for any claim “arising out of any criminal, dishonest, fraudulent or intentional act or omission” barred coverage for the claim.  ISBA also argued that the policy’s insuring agreement required a “negligent act, error or omission in the rendering of or failure to render professional services.”

ISBA filed a declaratory judgment action seeking a determination it owed no coverage to the insured.  The trial court granted the insured’s motion for judgment on the pleadings and found that ISBA owed a duty to defend, and ISBA appealed.

The Appellate Court of Illinois, Fourth District, reversed the trial court’s decision and found in favor of ISBA.  The insured had argued that as long as the underlying complaint could be based on negligence, a duty to defend was owed by ISBA.  The court found, however, that the allegations in the complaint concerned conduct by the insured that fit squarely within the policy exclusion.

In interpreting the policy exclusion, the court held that a provision precluding coverage for intentional conduct required that the insured intend to cause the consequence of his act or omission, or believe that the consequences of his act or omission were substantially certain to result.  In that sense, an exclusionary clause for intentional conduct does not apply merely because an insured intended to act, but rather only applies to “intentional misconduct.”  As the underlying complaint alleged that insured created the second trust for the purpose of establishing a self-compensation scheme, the claim addressed “intentional misconduct” that could not be the result of negligence.  The Appellate Court therefore reversed the trial court decision and entered judgment in favor of ISBA.

Illinois Court Holds Exoneration During Policy Period Does Not Trigger Malicious Prosecution Coverage

In First Mercury Insurance Company v. Ciolino, 2018 IL App (1st) 171532, the First District of the Illinois Appellate Court held that the exoneration of an underlying claimant during a policy period does not trigger personal injury coverage for malicious prosecution. The decision affirmed the judgment of the Circuit Court of Cook County, which held that the insurer did not have a duty to defend its insured for a malicious prosecution claim based on offensive conduct that took place more than a dozen years before the relevant policy period.

The plaintiff in the underlying lawsuit, Alstory Simon, alleged that the insured, a private investigator, conspired in 1999 with a professor affiliated with Northwestern University’s Innocence Project to frame Simon for a 1982 double homicide in order to secure the release of the real killer, who had been previously convicted. Simon specifically alleged that in February 1999, the insured illegally impersonated a police officer to enter Simon’s home and obtained a false confession from Simon through threats, false evidence and “other illegal tactics.” In March 1999, Simon was indicted for murder based on the allegedly false evidence obtained by the insured, and in September 1999 he pleaded guilty to the murder of one of the victims and to the voluntary manslaughter of the other victim. Fourteen years later, the Cook County State’s attorney re-opened its investigation of the underlying homicide, and in October 2014, the State’s Attorney’s office requested Simon’s exoneration. Simon was released the same day. Simon filed suit against Northwestern and the insured in February 2015.

The insured tendered Simon’s complaint to its general liability insurer, First Mercury, under a 2014-2015 policy that was in effect at the time of Simon’s exoneration. The First Mercury policy covered suits seeking damages for “personal injury,” including malicious prosecution, caused by an “offense” committed during the policy period. The policy did not define the term “offense.” First Mercury disclaimed coverage on grounds that the underlying lawsuit did not allege an “offense” during its policy period, as all of the insured’s alleged wrongful conduct occurred in 1999. The insured countered that the “offense” did not occur until Simon was exonerated during the First Mercury policy period because, under Illinois law, a claim for malicious prosecution does not accrue until the plaintiff is exonerated.

The Circuit Court agreed with First Mercury, and the Appellate Court affirmed. The Appellate Court reasoned that the “straightforward reading” of the term “offense” mandated that coverage was dependent on whether the insured’s offensive conduct was committed during the policy period, not whether the underlying cause of action accrued during the policy period.

The insured’s argument had relied on the Seventh Circuit’s 2012 decision in American Safety Insurance Co. v. City of Waukegan, 678 F.3d 475, which held that an underlying claimant’s exoneration was an “occurrence” that triggered coverage. The First District of the Appellate Court held that American Safety conflicted with three subsequent Illinois appellate decisions from other districts—St. Paul Fire & Marine Insurance Co. v. City of Zion, 2014 Il App (2d) 131312, Indian Harbor Insurance Co. v. City of Waukegan, 2015 IL App (2d) 140293, and County of McLean v. States Self-Insurers Risk Retention Group, Inc., 2015 IL App (4th) 140628—all holding that exoneration was not a trigger of coverage under varying policy language. As such, the Appellate Court held that the Seventh Circuit’s decision in American Safety was no longer persuasive authority.

Massachusetts Court Holds No E&O Coverage for Medical Provider’s Alleged Billing Fraud

In its recent decision in Barron v. NCMIC Ins. Co., 2018 U.S. Dist. LEXIS 75512 (D. Mass. May 4, 2018), the United States District Court for the District of Massachusetts had occasion to consider whether billing practices qualify as a professional service insured under a medical malpractice insurance policy.

NCMIC insured a group of chiropractors under a professional liability policy affording coverage for “damages because of an injury” subject to the requirement that the injury be caused by an accident arising from the negligent omission, act, or error in the provision of professional services, a term defined as “services which are within the scope of practice of a chiropractor in the state or states in which the chiropractor is licensed.”

The insured chiropractic group sought coverage for an underlying suit brought against it by GEICO. GEICO alleged that the chiropractic group engaged in various fraudulent schemes in an effort to obtain higher payments from GEICO under Massachusetts’ No-Fault Personal Injury Protection (PIP) statute. Among other things, the suit alleged that the group overprescribed treatments without regard to any individual person’s actual injuries, and engaged in practices designed to maximize the amount of treatment rendered and PIP benefits received. GEICO also alleged that the group engaged in numerous other schemes, such as manipulating patients’ injury complaints, manipulating invoices, and manipulating service codes.

The court held that GEICO’s lawsuit did not come within the Policy’s grant of coverage, and in doing so, rejected the insured’s argument that GEICO’s suit alleged a “mix of both negligence claims and fraudulent billing. While the underlying suit made reference to patients having been mistreated as a result of the insured’s negligent care, the court concluded that the suit did not allege that this mistreatment caused injury to any particular individual, nor was any relief sought by GEICO for such injuries.

The court further observed that the policy issued by NCMIC did not broadly cover all suits arising out of the insured’s rendering of professional services, but only suits seeking damages for injuries resulting from such services. Thus, the court concluded, “The Underlying Action targets alleged fraudulent billing practices that caused GEICO to pay or settle false or inflated medical insurance claims, not professional malpractice that caused patient injuries.”

New York Court Holds Pollution Exclusion Inapplicable to 9/11 Claims

In its recent decision in National Union Fire Insurance Co. of Pittsburgh, PA v. Burlington Ins. Co., 2018 N.Y. Misc. LEXIS 1503 (Sup. Ct. NY Co. Apr. 27, 2018), the Supreme Court of New York for New York County considered whether the total pollution exclusion applied with respect to an underlying bodily injury suit brought individuals claiming injury as a result of exposure to toxic conditions at the World Trade Center site in the immediate aftermath of September 11, 2001.

Burlington issued a primary policy and National Union issued a commercial umbrella policy to one of the contractors that aided in the cleanup recovery after September 11, 2001. The insured was named as a defendant in several suits brought by individuals claiming respiratory illness and other injuries as a result of having worked on the recovery effort without having been provided proper protective wear. Burlington denied coverage for the suits on the basis of its policy’s total pollution exclusion. National Union subsequently dropped down to provide a defense and ultimately settled the matters. It later brought suit against Burlington, alleging that Burlington’s denial of coverage was improper.

In considering the matter, the court noted that it has long been the case that under New York law, the pollution exclusion is limited to matters believed to be traditional or classic environmental harm. It nevertheless noted a pair of decisions from the Southern District of New York finding the pollution exclusion inapplicable to similar World Trade Center-related claims on the basis that the injured claimants were not suing on the theory that the insured-defendants created a pollution condition, or failed to abate one, but instead that the defendants failed to provide a safe workplace and failed to provide appropriate protections against an existing pollution condition. The court found these cases persuasive and held the exclusion inapplicable to the underlying matters.

In so concluding, the court rejected Burlington’s argument that notwithstanding any individual claimant’s theory of liability, the pollution exclusion should still apply since “none of the workplace safety issues or injuries would exist but for the polluted environment.” The court conceded that New York courts have, in fact, applied a “but for” analysis for some insurance policy exclusions, such as the assault and battery exclusion. It nevertheless found a lack of support for applying a “but for” analysis in the context of the pollution exclusion, and in fact noted case law to the contrary. The court concluded, therefore, that in light of the “extensive allegations of lack of workplace safety” and given case law from the federal courts, Burlington failed to meet “its heavy burden of showing that the dispersal of pollutants, standing alone, caused the plaintiffs’ injuries in the Underlying Actions.”