Who gains from saving nature
Ledger 1 : 33 — For each dollar financing nature-based solutions in 2023, about $33 financed activities harmful to nature. (UNEP)
Cases / Insurance, liability and compensation funds · United States · 2000–2024

Lead paint public nuisance insurance (Santa Clara)

Nature's voice · report
No measurement of the harm done to me here is on record.
Did nature suffer? Not measured.
Not on record
  • The record does not name which of my species, waters, soils or forests were harmed.
What the record lacks: 1 insufficient · 1 not measured · 1 disputed · 1 unclear See the gaps

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.

about $101-102MEach of three companies agreed to pay into an abatement fund (2019)
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.

What?
Three paint companies agreed in 2019 to pay into a lead paint abatement fund, and courts then ruled on whether their insurers had to cover those payments.
Where?
California (underlying suit and ConAgra coverage ruling), New York (NL Industries), Ohio (Sherwin-Williams).
When?
Suit filed 2000; settlement 2019; coverage rulings 24 March 2022, 19 April 2022 and 10 December 2024.
Who?
Gained
Lost
Harmed
None on record
Why?
Insurers refused on knowledge or willful-act grounds in the ConAgra and NL matters, and on the ground that abatement payments are not "damages" in the Sherwin-Williams matter. Simpson Thacher & Bartlett
How?
Coverage litigation in state courts under California Insurance Code section 533 and the policies' terms. Simpson Thacher & Bartlett
6 of 6 questions answered from the record

What happened

The record, in order.

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.

  1. 2000Santa Clara County and other California authorities sue over lead paint
  2. 2019Sherwin-Williams, ConAgra and NL Industries each agree to pay about $101-102M into an abatement fund
  3. 202224 March: New York First Department rules for NL Industries on coverage; 19 April: California Court of Appeal rules for ConAgra's insurers
  4. 202410 December: Ohio Supreme Court rules 7-0 that Sherwin-Williams' abatement payments are not "damages"

What was said

Claims, in the words of those who made them.

“with knowledge of the harmful nature of such use”

California Court of Appeal on W.P. Fuller's promotion of lead paint, as reported by Simpson Thacher · 19 April 2022 · Simpson Thacher & Bartlett

“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.

Must insurers cover the companies' payments into the lead paint abatement fund?
Company or project
Certain Underwriters at Lloyd's and others (ConAgra's insurers)

Denied cover under California Insurance Code section 533, which bars insurance for loss "caused by the willful act of the insured."

Simpson Thacher & Bartlett
Courts
California Court of Appeal

Ruled for the insurers on 19 April 2022; held that Fuller promoted lead paint "with knowledge of the harmful nature of such use."

Simpson Thacher & Bartlett
Courts
New York Appellate Division, First Department

Ruled 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 Department
Courts
Ohio Supreme Court

Ruled 7-0 on 10 December 2024 for the insurers on a different ground: abatement payments are not "damages."

Simpson Thacher & Bartlett

How it looked

What was shown, beside what was recorded.

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.
      Simpson Thacher & Bartlett
    • New York First Department, 24 March 2022: no clear finding that NL expected or intended harm.
      New York Appellate Division, First Department
    • Ohio Supreme Court, 10 December 2024, 7-0: abatement payments are not "damages."
      Simpson Thacher & Bartlett

    In court and with insurers

    Every proceeding and every insurer decision on record.

    Lawsuits and rulings

    1. 2000–2019Settled
      Santa 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.

    2. 2022-04-19Claimant won
      Certain Underwriters at Lloyd's v. ConAgra, 77 Cal.App.5th 729
      California 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

    3. 2022-03-24Defendant won
      Lloyd's v. NL Industries, 203 A.D.3d 595
      New 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

    4. 2024-12-10Outcome not on record
      Sherwin-Williams abatement payments coverage ruling
      Ohio 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

    1. 2022Claim refused
      Certain 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

    2. 2022In litigation
      Certain 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

    3. 2024Claim refused
      Insurers of Sherwin-Williams (not named in the record) → Sherwin-Williams
      Stated 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

    Undisclosed, unproven, untried: recorded as data.
    Court ruling exists

    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

    Voices on record: — Company or project— Government and regulators✓ Courts✓ Press and investigations— Communities and civil society— Researchers

    Courts

    1. 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

    Connected cases

    Related matters, and cases linked to this one through the same organisations, with the role each played in both.
    Terms used on this page

    Insurance

    Hull insurance
    Insurance on a ship itself, covering damage to or loss of the vessel.
    Underwriter
    An insurer, or a person at an insurer, who assesses a risk and decides whether and on what terms to insure it.
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