ZRZ REALTY v. BENEFICIAL FIRE AND CAS. INS.

(CC 9708-0626; CA A121145; SC S057155).

241 P.3d 710 (2010)

349 Or. 117

ZRZ REALTY COMPANY, an Oregon corporation, for itself and as trustee of the Zidell Remediation Funding Trust, an Oregon trust; Zidell Marine Corporation, a Washington corporation; Tube Forgings Of America, Inc., an Oregon corporation; and Pon Exploration, Inc., a Delaware corporation, fka Zidell Explorations, Inc., an Oregon corporation, Petitioners on Review, v. BENEFICIAL FIRE AND CASUALTY INSURANCE COMPANY, succeeded in interest by J.C. Penney Life Insurance Company, et. al., Defendants, and Certain Underwriters at Lloyd's of London, and Certain London Market Insurance Companies, aka "Lloyds", including the following defendant companies: Assicurazioni Generali S.P.A., Insurance Company Of North America (UK) Ltd., Commercial Union Assurance Company, PLC, Edinburgh Assurance Company, Ltd., Ocean Marine Insurance Company, Ltd., World Auxiliary Insurance Corporation, Ltd., Cornhill Insurance Company, Ltd., Dominion Insurance Company, Ltd., Eagle Star Insurance Company Ltd., The Threadneedle Insurance Company Ltd., Excess Insurance Company Ltd., London & Edinburgh General Insurance Company Ltd., New Zealand Insurance Company, Ltd., Road Transport & General Insurance Company, Ltd., South British Insurance Company, Ltd., Ulster Marine Insurance Company, Ltd., The United Scottish Insurance Company, Ltd., Yorkshire Insurance Company, Ltd., Hansa Re & Marine Insurance Company (UK) Ltd., La Reunion Francaise (UK) Ltd., Economic Insurance Company Ltd., Norwich Union Fire Insurance Society, Ltd., Firemen's Insurance Company Of Newark New Jersey, Swiss Union General Insurance Company, Ltd., Leadenhall Insurance Company, Ltd., Bishopgate Insurance Company, Ltd., Home Insurance Company, Nippon Fire & Marine Insurance Company (UK) Ltd., Switzerland General Insurance Company, Ltd., River Thames Insurance Company, Ltd., Royal Insurance Company Ltd., British Fire Insurance Company, Ltd., British & Foreign Insurance Company, Ltd., National Provincial Insurance Company, Ltd., The Scottish Lion Insurance Company, Ltd., Skandia Marine Insurance Company (UK), Ltd., Drake Insurance Company, Ltd., Sphere Insurance Company, Ltd., Sphere Drake Insurance Company PLC, Alliance Assurance Company, Ltd., British Law Insurance Company, Ltd., And Continental Assurance Company Of London, Ltd., Liverpool Marine & General Insurance Company, Ltd., Phoenix Assurance Company Ltd., Fine Art & General Insurance Company, Ltd., Anglo-French Insurance Company, Ltd., Baloise Marine Insurance Company, Ltd., Baltica Insurance Company (UK) Ltd., Fuji Fire & Marine Insurance Company (UK), Ltd., R.W. Gibbon Group, La Preservatrice Group, Switzerland General Insurance Company (London) Ltd., Yasuda Fire & Marine Insurance Company, Ltd., Iron Trades Mutual Insurance Company, Ltd., Minster Insurance Company Ltd., Reliance Insurance Company, Sirius (UK) Insurance PLC, Indemnity Marine Assurance Company, Ltd., London & Hull Maritime Insurance Company, Ltd., And Associated Companies, C.A. Parr Agencies, Ltd., Sun Insurance Office, Marine Insurance Company, Limited, and Sumitomo Marine & Fire Insurance Company, Limited, Respondents on Review.

Supreme Court of Oregon, En Banc.

Decided October 14, 2010.


Attorney(s) appearing for the Case

Bruce L. Campbell , Miller Nash LLP, Portland, argued the cause and filed the brief for petitioners on review.

Thomas W. Sondag , Lane Powell PC, Portland, argued the cause and filed the brief for respondents on review. With him on the brief were John Folawn and Folawn Alterman & Richardson LLP.

Gregg A. McDonald , Portland, filed the brief for amici curiae Schnitzer Steel Industries, Inc., Prescision Castparts Corp., and Oregon Metals Industries Council.

Gregory L. Baird , Gordon & Polscer, LLP, Portland, filed the brief for amicus curiae Complex Insurance Claims Litigation Association. With him on the brief were Laura A. Foggan , Kathryn C. Walsh , and Wiley Rein LLP.


KISTLER, J.

This case arises out of a dispute over insurance coverage for plaintiffs' ship dismantling business. Before this court, the parties have raised primarily two issues. The first is whether plaintiffs or defendants had the burden to prove that environmental damages resulting from the operation of plaintiffs' business were neither expected nor intended. On that issue, the Court of Appeals held that, when the insurance policies that defendants issued expressly...

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