C.A. 2nd;
B272387

The Second Appellate District granted in part and denied in part a petition for writ of mandate. The court held that an insured with multiple primary and excess comprehensive general liability (CGL) policies, spanning several years, could not “electively stack” the excess policies so as to access any excess policy issued in any policy year so long as the lower-lying policies for the same policy year had been exhausted.

Montrose Chemical Corporation of California manufactured the pesticide DDT. In 1990, Montrose filed suit to resolve various coverage disputes with its primary CGL insurers. It later amended its complaint to name its excess insurers as additional defendants. In 2012, the California Supreme Court issued a decision in State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186. Continental held that where an ongoing environmental injury triggers multiple policies across many policy years, the insured may “stack” the policies “to form one giant 'uber-policy' with a coverage limit equal to the sum of all purchased insurance policies.” Montrose amended its complaint to add a cause of action for declaratory relief. It thereafter moved for summary adjudication, seeking a declaration that it had the right to “electively stack” excess policies—i.e., that it might access any excess policy issued in any policy year so long as the lower-lying policies for the same policy year had been exhausted. All of the excess insurers opposed Montrose's motion for summary adjudication. Many also sought a ruling that no insurer had a duty to pay a covered claim until Montrose had “horizontally exhausted” its lower-lying excess policies in all triggered policy years.