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Click here for the full text of this decision FACTS:An Environmental Impairment Liability (EIL) insurer, International Insurance Co. (International), appealed from a judgment based on a jury verdict in favor of its insureds: RSR Corp.; Quemetco Inc.; Quemetco Metals Limited Inc., formerly known as Murph Metals Inc.; Bestolife Corp.; and Revere Smelting & Refining Corp. of New Jersey (collectively, RSR). The judgment declared that the EIL policy obligated International to indemnify RSR for any remediation costs and expenses RSR is obligated to pay to the EPA, with respect to the EPA’s remediation of lead pollution at an island site. HOLDING:Affirmed. The court construes the ambiguous noun “claim” using its ordinary meaning that is most favorable to the insured, as the assertion of a right to hold the insured liable. The court notes that this is essentially the meaning that the district court adopted when it defined claim in the jury charge as “an assertion by a third party, that in the opinion of the third party, the insured is liable to it for damages within the risks covered by the policy[.]“ The court finds that International has not demonstrated that the jury charge defining a claim creates “substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.” Moreover, even if the jury instruction was erroneous, the challenged instruction could not have affected the outcome of the case. The court finds that the jury’s verdict is supported by legally sufficient evidence, which included the undisputed fact that the RSR smeltery caused substantial lead pollution on the island, the EPA placed the insured’s lead smeltery on the National Priorities List, the insured was liable to the EPA for environmental impairment, the virtual certainty of further investigative and enforcement actions by the EPA, and the actions and communications indicating that the counsel and other representatives of both parties had concluded that a timely claim had been made under the policy. The evidence is sufficient to support the jury’s determination that a claim was made against RSR by the EPA within the EIL policy coverage period; and that the errors attributed to the district court in pretrial rulings and jury instructions were either not proven or harmless because they could not have affected the outcome. OPINION:Dennis, J.; Wiener, Barksdale and Dennis, JJ.

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