On September 5, 2023, the NAM filed an amicus brief arguing to the Ohio Supreme Court that commercial general liability (CGL) insurance policies cover public nuisance claims. In this case, a California trial court held Sherwin-Williams liable for public nuisance claims, alleging that it contributed to a public health crisis by promoting lead paint for interior and exterior use despite knowing the use of lead was hazardous to human beings. The parties subsequently settled the case and Sherwin-Williams sought insurance coverage for monies paid to abate the conditions created by interior residential lead paint in 10 California jurisdictions. An Ohio court of appeal held that Sherwin-Williams' insurance policies provide coverage for the monies Sherwin-Williams had to pay, and the Ohio Supreme Court granted the insurers’ request to hear the case.
In our brief, we argue that the monies Sherwin-Williams was ordered to pay to abate the public nuisance are “damages” and that the Insurers’ CGL policies cover public nuisance claims. Further, knowledge of the risk of harm a product poses at the time of manufacturing and selling the product is not a sufficient basis to deny coverage under the clause in CGL insurance policies that excludes damages that are “expected or intended.” That exclusionary clause only applies to allow an insurance company to deny coverage when a company that is insured intends for a resulting harm or injury to occur. This case is important to prevent insurance companies from being able to deny coverage under their insurance policies any time a manufacturer has knowledge that a product might cause harm.