Hines' letter to Wausau stated:“[A]lthough we have received no formal notice, we have been informed by the [EPA] and the Arkansas Department of Pollution Control and Ecology of their intentions to assert liability against us and others for costs related to the cessation and clean-up of alleged hazardous waste discharges from the Mena, Arkansas treating plant. The pleadings are silent as to whether Wausau had notice of the filing of this complaint. Ehlco sent notice of this suit to Wausau in January 1992 and requested a prompt response regarding defense. 45 (Autumn 1995) (reviewing the history of the estoppel doctrine and arguing against the recognition of an exception for condition precedent defenses). As a result, also on March 18, 1982, but apparently before Hines received the PRP letter, Hines notified Wausau of the EPA's intentions. The complaint sought an injunction requiring the defendants to implement remedial action and reimburse the EPA for sums expended, and declaring the defendants liable for all future costs incurred for environmental investigations, clean-up, and response and enforcement actions.
As a result, the Trust anticipates that unit holders subject to withholding will receive a distribution net of the required withholding.
Wausau then amended its complaint and sought a declaration of its obligations concerning the Mena site, in addition to the Wyoming site. Parenthetically, the record on appeal contains a fourth amended complaint by Wausau, which was filed long after Ehlco's motions were granted and which the circuit court never considered. According to Wausau, Ehlco waived this argument in the circuit court when it requested judgment on the pleadings based on the PRP letter. Furthermore, because the duty to defend has been negated, the general rule estopping the insurer from denying coverage where it breaches the duty to defend does not apply.
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