France – PFAS risks: impacts on professional liability for insurance sectors in France and Europe

PFAS are chemicals that have been used in industry for over 50 years. Between 4,000 and 5,000 varieties are used for various everyday consumer applications, and they are renowned for their non-stick, waterproofing, and heat-resistant properties. They have come under scrutiny in recent years, and are covered by European regulations, as they are in the USA, where the public authorities have imposed maximum use values, as well as reporting obligations. EU Regulation 2019/1021 (POP) restricts the production and use of certain categories of PFAS in specific industries or above certain values and their use with food products. France has gone further, regulating the levels of discharges into watercourses.

Scientific research suspects that PFAS cause illnesses such as cancer and reproductive disorders. Given the extent of contamination not only in everyday products but also in the environment, particularly waterways, the issue is likely to pose major public health problems in the years to come. This concern is more pressing given that PFASs are considered ‘eternal pollutants’, as there is currently no way of eliminating them from the environment.

The impact on companies’ and insurers’ liability is already significant. In the USA, more than 6,000 lawsuits have been filed since 2005. Three groups have already paid more than USD 1.2 billion in settlements due to contamination, and another group has paid more than USD 10 billion to end a class action.

In France, the Metropole of Lyon has brought a summary expert appraisal action against two chemical companies before considering bringing a liability action.  In addition, several criminal complaints have been lodged for endangering the lives of others and damaging the environment.

Under French law, companies and their insurers could be liable on various legal grounds. In addition to ordinary civil liability law – based on article 1240 of the Civil Code – the special system of liability for defective products could also serve as a basis for a liability action (articles 1245 et seq. of the Civil Code), with French law defining a defect as any product that does not offer the safety that can legitimately be expected.

Although it is currently difficult to identify a causal link with an identified disease, asbestos-related case law has shown in the past that victims can take action if they can demonstrate that they suffered anxiety-related harm as a result of their exposure to the product, even if they are not positively suffering from a disease at the time of their claim.

In addition, the reporting obligations imposed by the public authorities will undoubtedly facilitate the filing of liability actions by facilitating the identification of the emitters and users of these pollutants.

Insurers are directly affected by this phenomenon, which for them constitutes an “emerging” risk (“silent cover”) because, for the most part, this risk was not identified when the policy was taken out, which exposes them directly and is all the more problematic because insurance premiums have not been able to take such a risk into account.

Civil liability or professional indemnity insurance policies, especially if they are drafted with “all risks except” clauses (“tous risques sauf” in French legal vocabulary, i.e. covering all liability risks vis-à-vis third parties except those strictly listed), as well as those including clauses relating to environmental risks, are particularly targeted.

Lloyd’s has already published model exclusion clauses for the attention of insurers, although such clauses can obviously only cover future insurance contracts or endorsements:

https://www.lmalloyds.com/LMA_Bulletins/LMA23-039-SD.aspx

The clauses contained in insurance policies must be drafted with particular care, considering each country’s specific features. In France, for example, to be enforceable against the insured, clauses must be “formal and limited”, which means that the exclusion must be both clearly expressed and that it must be possible to determine its content perfectly.

For example, the Court of Cassation recently ruled that the use of the terms “such as” or “in particular” (“tells que” “en particulier”) in an exclusion clause led to confusion in the interpretation of the exclusion clause, rendering it invalid (Civ. 2e, 26 Nov. 2020, no. 19-16.435).  There was also a debate on the validity of an exclusion clause relating to bodily injury caused by asbestos, a risk which at the time had not been identified by insurers, who subsequently excluded it from most policies (Cass. 2e civ., 21 Sept. 2023, nos. 21-19801 and 21-19776). Similarly, policies should clearly indicate whether cover is provided based on a harmful event or based on a claim (i.e “base dommage” or “base reclamation”, which indicates if the risk is covered, depending on if the damage happened during the policy was valid, or if it depends on the moment when the risk was notified by the insured during such period).

One thing is sure: the risks associated with PFAS and claims are only just beginning to emerge in Europe, where the conditions for group actions have recently been extended with EU Directive 2020/1828, which came into force on 25 June 2023 and is currently the subject of a draft law under discussion in the French Parliament with a view to its transposition.