Is Fortuity Dead in California?
(C) 2009 Barry Zalma
Contrary to statements made by politicians, insurance is not a right. Insurance is not a means of curing social ills. Insurance is not a means of curing environmental problems. Insurance is not designed to protect against known losses. Insurance is not issued to protect against intentional acts. Insurance is not available to protect against a loss that happened before the policy is purchased. Insurance in California is only "a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event."
1Politicians and courts – faced with a horrendous fact situation – attempt to make insurance something it is not, a charitable institution that pays losses the insurer did not agree to pay by the words of the insurance contract. The California Courts of Appeal and Supreme Court have struggled with this concept for many years as a result of the discharge of pollutants from the Stringfellow acid pits.
In this article Mr. Zalma argues that the failure of the court to consider the fact that a loss, to be covered, must be contingent or unknown to the insured. Evidence presented at the trial established that prior to the issuance of the policies at issue in California v. Allstate Ins. Co., 2009 Cal. LEXIS 1640 the state knew that pollution was occurring and was continuing.