An insurance industry trade association just filed an amicus brief in Ash Grove Cement Co. v. Liberty Mutual Insurance Co., asking the Ninth Circuit either to reverse an Oregon district court’s decision that a CERCLA Section 104(e) information request is a “suit” triggering a duty to defend or to certify the question to the Oregon Supreme Court. While acknowledging that many courts have interpreted the term “suit” to include other adversarial actions, the trade association argues that a 104(e) information request is nothing more than a routine request for information. It also argues that the Oregon Environmental Cleanup Assistance Act’s definition of a suit does not include information requests, and that if it did, it would violate the Oregon and United States Constitutions. The group apparently believes the Oregon Supreme Court is a more favorable venue for insurers than the Ninth Circuit. An amicus brief from a policyholder-friendly group opposing these arguments should be expected.
