When a company learns that it has a site suffering from environmental property damage, “profit” is the last thing on that company’s mind. Rather, the terms that company is more likely thinking about in this situation are those like losses, risk, environmental agency scrutiny, costly and lengthy remediation, bad press, etc. A recent article in the New York Times titled “Turning Polluted Properties Into Profits” takes an alternative view of the value of sites with environmental property damage. The article discusses a new business model and group of investors who are actively seeking out these properties in order to buy them, clean them up, then sell them for a profit. However, as the article noted: “insurance is key.” Finding insurance to help cover some or all of the clean-up costs is vital to the profitability of the damaged site. Because environmental property damage can exist for decades, historical insurance policies might be able to provide coverage for the resulting losses. In fact, if the site triggers commercial general liability policies issued before the pollution exclusion was common in the mid-1980s, the likelihood of available coverage is very high, assuming the insurance company is still around and paying claims. But, like any business model – there are risks. From an insurance standpoint, there are three areas of concern:
- finding historic coverage is not always easy or cheap
- whether the rights under the historic insurance policies will transfer to the buyer
- remediation may exceed the originally anticipated scope