As regulators and litigants ramp up their scrutiny of per- and polyfluoroalkyl substances (PFAS), legal and insurance professionals are stepping up efforts to clarify how companies can protect themselves from liability. A recent webinar hosted by Venable LLP tackled this evolving landscape, examining insurance coverage under historical commercial general liability (CGL) policies, modern environmental policies, and for non-environmental claims like false advertising.
The discussion featured Venable partners Michael Davis and Brian Koosed, counsel John Mavretich, and Robin Kelleher of USI Insurance Services, and provided practical guidance for businesses navigating the uncertainties of PFAS-related risk.
Historical CGL Coverage for PFAS Claims
Mavretich emphasized that older CGL policies may provide valuable protection for PFAS claims—especially if the policies predate the industry-wide shift to exclude pollution in the mid-1980s. “These policies are typically occurrence based,” Mavretich explained, “so that means the policy that was in place at the time the damage occurred is the policy that will provide coverage.” He noted that policyholders could trigger coverage under multiple policy years if a PFAS release is alleged to have occurred over an extended period.
Mavretich also broke down how state law significantly influences coverage, particularly regarding exclusions. He reviewed recent case law to discuss how different states’ courts are interpreting various policy provisions in the context of PFAS-related coverage disputes.
Modern Environmental Policies and PFAS Exclusions
Turning to the modern insurance market, Kelleher warned that PFAS exclusions are becoming widespread—even under environmental insurance policies designed to fill the gaps left by CGL policies. “We are seeing those carriers add pollution exclusions that [include] PFAS specific exclusions,” she said, comparing them to asbestos carveouts. Despite this, Kelleher underscored that coverage is still possible: “You have to provide a narrative...to explain why the risk isn’t as ominous as it may seem.”
Kelleher shared a case study involving a former paper mill redevelopment, which succeeded in securing a 10-year environmental policy despite known PFAS contamination. The key, she explained, was aligning policy exclusions with indemnity agreements, and demonstrating regulatory containment: “The underwriter worked with us...and we were able to place the cover.”
Non-Environmental PFAS Claims: The Rise of Greenwashing Litigation
Rounding out the discussion, litigator Koosed spotlighted a surge in PFAS-related deceptive trade practice lawsuits. “There have been PFAS-related, non-environmental claims in consumer class actions brought against makers of baby wipes, Band-Aids, toothpaste, razors,” he said. Koosed stressed the importance of complaint language in determining insurance coverage: “If it’s just monetary damages...versus couched in bodily injury health risks,” he said, “that can have a substantial impact on the coverage analysis.”
Using hypotheticals to illustrate real-world cases, Koosed explained that ambiguity in plaintiffs’ claims may actually benefit defendants facing claims to obtain insurance coverage for them. “Ambiguity can be your friend,” he said. “If there is any potential for coverage, there’s at least a duty to defend.” He concluded by encouraging proactive engagement with insurers, reminding attendees, “Don’t give up. It is sometimes an uphill battle, but...it’s possible to reach favorable resolutions.”
Coverage Still Possible Amid Legal Uncertainty
While insurers are increasingly wary of PFAS-related liabilities, the panelists made clear that coverage is not out of reach. Whether pursuing older CGL policies or negotiating terms for modern environmental insurance, businesses must document their history, assess exposures, and act strategically. As Davis summarized, “There’s a path forward...you just have to know the history and get in the details.”
To learn more about upcoming webinars or watch past recordings from our monthly series, Navigating PFAS: Legal Perspectives, click here. Learn more about Venable’s services and capabilities at our PFAS and Emerging Contaminants page.