ST. PAUL FIRE v. McCORMICK & BAXTER CREOSOTING

CC A8711-07096; CA A71072; SC S41582, SC S41584.

923 P.2d 1200 (1996)

324 Or. 184

ST. PAUL FIRE & MARINE INSURANCE COMPANY, INC., and St. Paul Mercury Insurance Company, Inc., Petitioners on Review/Respondents on Review, v. McCORMICK & BAXTER CREOSOTING CO., Respondent on Review/Petitioner on Review, and National Continental Insurance Company, successor to American Star Insurance Company by change of name; Consolidated American Insurance Company; Hartford Accident & Indemnity Company; United States Fire Insurance Company; Gulf Insurance Company, Respondents on Review, and Certain Underwriters at Lloyd's, London; Continental Casualty Company, Petitioners on Review/Respondents on Review, and Scottsdale Insurance Company; Boston Insurance Company; Mission Insurance Company (in liquidation); Mission National Insurance Company (in liquidation) and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendants. McCORMICK & BAXTER CREOSOTING CO., Petitioner on Review/Respondent on Review, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, INC.; St. Paul Mercury Insurance Company, Inc., Respondents on Review/Petitioners on Review, and National Continental Insurance Company, successor to American Star Insurance Company by change of name; Consolidated American Insurance Company; Hartford Accident & Indemnity Company; United States Fire Insurance Company; Gulf Insurance Company and National Fire Insurance Company of Hartford, Respondents on Review, and Certain Underwriters at Lloyd's, London; Continental Casualty Company, Respondents on Review/Petitioners on Review, and Scottsdale Insurance Company; Boston Insurance Company; Mission Insurance Company (in liquidation) and Mission National Insurance Company (in liquidation), Cross-Defendants.

Supreme Court of Oregon.

Decided September 26, 1996.


Attorney(s) appearing for the Case

Jeffrey L. Fillerup, of Luce, Forward, Hamilton & Scripps, San Francisco, CA, argued the cause for petitioners on review/respondents on review St. Paul Fire & Marine Insurance Company and St. Paul Mercury Insurance Company, Inc. With him on the briefs were Robin Craig-Olson, San Francisco, CA, and Thomas A. Gordon and Gene D. Kennedy, of Gordon & Polscer, Portland.

Jay T. Waldron, of Schwabe, Williamson & Wyatt, Portland, argued the cause for petitioners on review/respondents on review Certain Underwriters at Lloyd's, London, and Continental Casualty Company. With him on the brief was Mildred J. Carmack.

F. Scott Farleigh and Karen E. Saul, of Farleigh, Wada & Witt, P.C., Portland, filed a brief for respondent on review/petitioner on review Certain Underwriters at Lloyd's, London. With them on the brief were Paul D. Nelson and Michael A. Gevertz, of Hancock Rothert & Bunshoft, San Francisco, CA.

Peter R. Chamberlain, of Bodyfelt Mount Stroup & Chamberlain, Portland, argued the cause for respondent on review Hartford Accident & Indemnity Company. With him on the brief were Barry M. Mount and Richard A. Lee.

David M. Jacobi, of Wilson, Smith, Cochran & Dickerson, Seattle, WA, argued the cause for respondent on review United States Fire Insurance Company. With him on the brief was Mark A. Hiefield, of Underwood, Norwood & Hiefield, Portland.

Barry S. Levin, of Heller, Ehrman, White & McAuliffe, San Francisco, CA, argued the cause for respondent on review/petitioner on review McCormick & Baxter Creosoting Co. With him on the briefs were Daniel J. Dunne, Jr., San Francisco, CA, Eric R. Todderud, Portland, and Paul R. Gary, of Paul R. Gary, P.C., Portland.

George W. McKallip, Jr., of Kennedy, King & Zimmer, Portland, filed the briefs for respondents on review National Continental Insurance Company and Consolidated American Insurance Company. With him on a brief for respondent on review Gulf Insurance Company was Mildred J. Carmack, of Schwabe, Williamson & Wyatt, Portland.

Philip Schradle and Stephanie L. Striffler, Assistant Attorneys General, and Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem, filed briefs on behalf of amicus curiae Oregon Department of Environmental Quality.

James T. McDermott and James L. Buchal, of Ball, Janik & Novack, Portland, filed a brief on behalf of amici curiae Associated Oregon Industries, Schnitzer Steel Industries, Inc., Schnitzer Investment Corp., and Unified Sewerage Agency of Washington County.

Steven J. Dolmanisth, Eugene R. Anderson, Finley T. Harckham, and Marjorie Han, of Anderson Kill Olick & Oshinsky, P.C., New York City, filed briefs on behalf of amici curiae Columbia Corridor Association, Jesuit High School, Cascade Corporation, Reynolds Metal Company, Carr Chevrolet Co., Inc., and Esco Corporation.

I. Franklin Hunsaker, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, filed a brief on behalf of amicus curiae Insurance Environmental Litigation Association. With him of counsel on the brief were Laura A. Foggan, Daniel E. Troy, and Luis de la Torre, of Wiley, of Rein & Fielding, Washington, DC.

Jeffrey V. Hill and Bradford H. Lamb, of Zarosinski & Hill, Portland, filed a brief on behalf of amicus curiae Aetna Casualty and Surety Company. With them of counsel on the brief were Edward Zampino, Peter E. Mueller, and Victor C. Harwood, III, of Harwood Lloyd, Hackensack, NJ.

Before CARSON, C.J., and VAN HOOMISSEN, FADELEY, GRABER, and DURHAM, JJ.


GRABER, Justice.

This case involves insurance coverage under a number of general comprehensive liability (GCL) policies issued to McCormick & Baxter Creosoting Co. (M & B), by different insurers, from 1949 through 1985. M & B seeks coverage under those policies for costs incurred in investigating and correcting environmental contamination that resulted from its operations in California and Oregon. The trial court concluded that the policies did not cover...

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