Lead paint public nuisance insurance (Santa Clara)
- The record does not name which of my species, waters, soils or forests were harmed.
After a California public-nuisance suit over lead paint was settled in 2019, courts in California, New York and Ohio gave differing rulings on whether insurers had to cover the companies' payments into the abatement fund.
Each, as stated in the sources reviewed; settlement of the California public-nuisance case.
Status As of 10 December 2024: coverage rulings split by state (California and Ohio for the insurers, New York for NL Industries); the California Supreme Court petition outcome is unconfirmed.
- Insurers of ConAgra and Sherwin-Williams — Prevailed in the California Court of Appeal (2022) and the Ohio Supreme Court (2024) coverage rulings. Simpson Thacher & Bartlett
- NL Industries — Prevailed in the New York First Department coverage ruling (2022). New York Appellate Division, First Department
- ConAgra — The California Court of Appeal held its insurers need not cover its payment. Simpson Thacher & Bartlett
- Sherwin-Williams — The Ohio Supreme Court held its abatement payments are not covered "damages." Simpson Thacher & Bartlett
What happened
Santa Clara County and other California authorities sued in 2000 in a public-nuisance case over lead paint. The record treats it as a product case, not a site case. In 2019 Sherwin-Williams, ConAgra (successor to W.P. Fuller) and NL Industries each agreed to pay about $101-102 million into an abatement fund.
ConAgra's insurers, Certain Underwriters at Lloyd's and others, denied cover under California Insurance Code section 533, which bars insurance for loss "caused by the willful act of the insured." In Certain Underwriters v. ConAgra, 77 Cal.App.5th 729, the California Court of Appeal ruled for the insurers on 19 April 2022. It held that Fuller promoted lead paint "with knowledge of the harmful nature of such use."
In Lloyd's v. NL Industries, 203 A.D.3d 595, the New York Appellate Division, First Department, decided on 24 March 2022 the other way for the policyholder: "not a clear finding that NL either expected or intended to harm any person or property."
On 10 December 2024 the Ohio Supreme Court ruled 7-0 for the insurers on a different ground in the Sherwin-Williams matter: that abatement payments are not "damages." The outcome of the petition for review to the California Supreme Court (S274797) in the ConAgra case is unconfirmed.
- 2000Santa Clara County and other California authorities sue over lead paint
- 2019Sherwin-Williams, ConAgra and NL Industries each agree to pay about $101-102M into an abatement fund
- 202224 March: New York First Department rules for NL Industries on coverage; 19 April: California Court of Appeal rules for ConAgra's insurers
- 202410 December: Ohio Supreme Court rules 7-0 that Sherwin-Williams' abatement payments are not "damages"
What was said
“with knowledge of the harmful nature of such use”
“not a clear finding that NL either expected or intended to harm any person or property”
Where accounts differ
Each party's account, side by side, with its source. The record does not settle these points; it shows them.
Denied cover under California Insurance Code section 533, which bars insurance for loss "caused by the willful act of the insured."
Simpson Thacher & BartlettRuled for the insurers on 19 April 2022; held that Fuller promoted lead paint "with knowledge of the harmful nature of such use."
Simpson Thacher & BartlettRuled on 24 March 2022 for NL Industries: "not a clear finding that NL either expected or intended to harm any person or property."
New York Appellate Division, First DepartmentRuled 7-0 on 10 December 2024 for the insurers on a different ground: abatement payments are not "damages."
Simpson Thacher & BartlettHow it looked
Shown
Recorded
- Sherwin-Williams, ConAgra and NL Industries each agreed in 2019 to pay about $101-102 million into an abatement fund.
- California Court of Appeal, 19 April 2022: insurers not obliged to cover ConAgra's payment, under Insurance Code section 533.
- New York First Department, 24 March 2022: no clear finding that NL expected or intended harm.
- Ohio Supreme Court, 10 December 2024, 7-0: abatement payments are not "damages."
In court and with insurers
Lawsuits and rulings
- 2000–2019SettledSanta Clara County and other California authorities v. lead paint companies (public nuisance)California (court not named) · Civil · Santa Clara County and other California authorities → Sherwin-Williams; ConAgra (successor to W.P. Fuller); NL Industries
In 2019 the three companies each agreed to pay about $101-102 million into an abatement fund.
- 2022-04-19Claimant wonCertain Underwriters at Lloyd's v. ConAgra, 77 Cal.App.5th 729California Court of Appeal · Appeal · Certain Underwriters at Lloyd's and others → ConAgra
Insurers denied cover under California Insurance Code section 533. The court held that Fuller promoted lead paint with knowledge of the harmful nature of such use. The outcome of the California Supreme Court review petition (S274797) is unconfirmed. Simpson Thacher & Bartlett
- 2022-03-24Defendant wonLloyd's v. NL Industries, 203 A.D.3d 595New York Appellate Division, First Department · Appeal · Certain Underwriters at Lloyd's → NL Industries
The court found no clear finding that NL either expected or intended to harm any person or property. New York Appellate Division, First Department
- 2024-12-10Outcome not on recordSherwin-Williams abatement payments coverage rulingOhio Supreme Court · Civil · Not stated → Not stated
The court ruled 7-0 for the insurers, on a different ground from knowledge or intent: that abatement payments are not "damages." Simpson Thacher & Bartlett
Insurers
- 2022Claim refusedCertain Underwriters at Lloyd's and others → ConAgra (successor to W.P. Fuller)Stated reason: California Insurance Code section 533 bars insurance for loss caused by the willful act of the insured.
The California Court of Appeal ruled for the insurers on 19 April 2022. Simpson Thacher & Bartlett
- 2022In litigationCertain Underwriters at Lloyd's → NL Industries
On 24 March 2022 the New York First Department found no clear finding that NL either expected or intended harm; the record gives no payment outcome. New York Appellate Division, First Department
- 2024Claim refusedInsurers of Sherwin-Williams (not named in the record) → Sherwin-WilliamsStated reason: Ohio Supreme Court, 7-0: abatement payments are not "damages."
The Ohio Supreme Court ruled for the insurers on 10 December 2024. Simpson Thacher & Bartlett
What we don't know
Nature
- Not measured Harm to nature: The record holds no measurement of harm to nature.
Court
- Unclear Sherwin-Williams abatement payments coverage ruling: outcome not on record.
Accounts
- Disputed Must insurers cover the companies' payments into the lead paint abatement fund?
Record
- Insufficient The outcome of the petition for review to the California Supreme Court in the ConAgra case (S274797) is unconfirmed.
Did the harm stop?
Who paid?
Sources
Courts
- Certain Underwriters at Lloyd's v. NL Industries, 203 A.D.3d 595 (judgment text)New York Appellate Division, First Department · 2022-03-24
Press and investigations
- California appellate court rules that insurers are not obligated to indemnify lead paint abatement fund payment (Insurance Law Alert, law-firm note)Simpson Thacher & Bartlett · 2022-04-29
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