Stoneworker Litigation Poses Emerging Coverage Challenges for Policyholders, Jeff Kiburtz Says

In an extensive Q&A with Law360, Kiburtz reflected on the growing wave of lawsuits tied to engineered stone products, which he views as creating risk for a range of companies participating in the construction industry—though not on the scale of asbestos. While maintaining that asbestos is in “a class of its own,” he noted that there has been discussion “about whether silica was going to be the next asbestos” over the course of his 20+ year career, but that the anticipated wave of lawsuits never came, at least not until recently.   

Law360 asked Kiburtz about a case involving Ironshore Specialty Insurance Co., which involved coverage under an environmental liability policy for nearly 200 stoneworker cases.  He observed that, “In general, unlike a CGL policy, which is more or less standard across insurers and policyholders and industries, the environmental liability policies have a great degree of variability across insurers and types of companies.”  These policies also tend to have “very tricky, challenging language,” particularly as to scheduled “preexisting conditions” that the policies may expressly cover under certain circumstances.

While noting that environmental policies may provide coverage, Kiburtz noted that general liability policies likely will be the main focus for stoneworker cases “because they’re so much more common.”  Even when such policies have silica exclusions, they may not bar coverage for the stoneworker suits as silica exclusions have “several different iterations” of varying breadth, and many of the stoneworker suits allege that constituents other than silica caused the workers’ lung injuries.     

He expressed cautious optimism that policyholders will prevail in many of these disputes, depending on the specific wording of the exclusions.

As in asbestos litigation, legacy policies may become critical, especially where exposure dates back decades. “...there’s going to be a really strong argument that every policy that was in effect from the time of the first exposure up until the present is triggered,” he said, pointing to California’s “all sums with stacking” rule.

Coverage fights may turn on how policies are exhausted, though recent California rulings like Montrose and Kaiser Cement favor policyholders. As such, Kiburtz urges companies to organize old insurance records now, as long-tail claims will continue to be filed and may trigger decades-old policies.

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